R v Pickard - [2011] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PICKARD
[2011] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Blue)
11 November 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
Appeal against sentence - appellant drove through a red light at high speed with alcohol and cannabis present in her blood and collided with another motor vehicle - appellant pleaded guilty to two counts of aggravated causing serious harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to one year, 11 months and 28 days imprisonment - non-parole period of seven months and 28 days fixed - appellant disqualified from holding or obtaining a drivers licence on each count for a period of 10 years, to run concurrently - where, on appeal, appellant tendered affidavits said to contain further and fresh evidence - where there was a delay between the time of the offending and the time of sentencing - where appellant had significantly rehabilitated herself during that time - where appellant had a young child and was breast feeding at the time of sentencing - whether the sentence of imprisonment should have been suspended.
Held (The Court): Appeal allowed – appellant’s term of imprisonment of one year, 11 months and 28 days with a non-parole period of seven months and 28 days suspended on entry into a three year good behaviour bond – appellant disqualified from holding or obtaining a driver’s licence for a period of 10 years on each count, to run concurrently.
Gray J: The circumstances of delay, the reasons for delay, the impact of arrest, the change of circumstances of the appellant and her positive rehabilitation are significant matters of mitigation - the Judge failed to give those factors proper consideration or weight - the Judge failed to adequately address the effect of the proposed sentence on the appellant's dependent child - accordingly, the Judge failed to have adequate regard to relevant matters when sentencing.
In obiter: Even if there was no error on the part of the sentencing Judge, it would be appropriate to act on the further evidence – it would be appropriate to receive the further evidence as evidence on the appeal.
Blue J: The Judge erred in failing to take into account the fact or significance of the delay – accordingly, the sentencing discretion miscarried.
In obiter: But for the conclusion that the Judge erred in exercising his discretion whether or not to suspend the sentence, it is doubtful whether the further evidence ought to be received.
Criminal Law Consolidation Act 1935 (SA) s 19A, s 353(4), and s 359; Criminal Law (Sentencing) Act 1988 (SA) s 10(1) and s 38, referred to.
R v Thach; R v Chau [2010] SASCFC 16; R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Leggett [2000] WASCA 327; Thorn v Western Australia [2008] WASCA 36; R v Lekaj (1997) 92 A Crim R 325; R v Todd [1982] 2 NSWLR 517; R v Suckling (1983) 33 SASR 133; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; Duncan v The Queen (1983) 9 A Crim R 354; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432; Brain v The Queen (1999) 74 SASR 92; R v Sladic (2005) 92 SASR 36; R v Dorning (1981) 27 SASR 481; Orchard v Orchard (1972) 3 SASR 89; R v Green (1918) 13 Cr App R 200; R v Ferrua (1919) 14 Cr App R 39; Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593; Aplin v Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341; WorkCover Corporation (SA) v Musolino (2007) 100 SASR 147; R v Thompson (1975) 11 SASR 217; R v Johnston (1985) 38 SASR 582; R v Godwin (2001) 80 SASR 195; R v Peake (2002) 221 LSJS 407; R v P (2003) 87 SASR 287; R v Miceli [1998] 4 VR 588; R v Liddy (No 2) (2002) 84 SASR 231; R v Kane [1974] VR 759; R v Winchester (1992) 58 A Crim R 345; R v Liang & Li (1995) 82 A Crim R 39; R v Osenkowski (1982) 30 SASR 212, considered.

R v PICKARD
[2011] SASCFC 134
Court of Criminal Appeal: Gray, David and Blue JJ
GRAY J:

This is an appeal against sentence.
On 17 December 2010, Melanie Jayne Pickard, the defendant and appellant, pleaded guilty to two counts of aggravated causing serious harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The offending occurred on 22 January 2008.
On 5 August 2011, a sentence of imprisonment of one year, 11 months and 28 days was imposed in the District Court. A non-parole period of seven months and 28 days was fixed. The Judge declined to suspend the sentence. Ms Pickard was disqualified from holding or obtaining a driver’s licence on each count for a period of ten years. The orders of disqualification were directed to be concurrent.
On the hearing of the appeal, no complaint was made about the order of imprisonment, the fixing of the non-parole period or the orders of disqualification. The complaint was that the sentence of imprisonment should have been suspended. It was also contended that, in any event, having regard to further evidence tendered before this Court, an order suspending the sentence should be made.
Background
On 22 January 2008, at approximately 9:34 pm, Ms Pickard was driving a BMW coupe when it collided with a vehicle at the intersection of Oaklands Road and Morphett Road, Warradale in the State of South Australia.
Immediately prior to the collision, Ms Pickard’s vehicle had overtaken a vehicle travelling west on Oaklands Road approaching the intersection between Oaklands Road and Morphett Road. Ms Pickard’s vehicle entered the intersection against a red light at a speed of between 103 and 111 kilometres per hour.[1] At the same time, a Holden vehicle which had been travelling in an easterly direction on Oaklands Road was turning to travel south on Morphett Road. The Holden entered the intersection with a green light at a speed of about 20 kilometres per hour. The vehicles came into a heavy collision.
[1] This is an agreed fact.
Evidence before the Court disclosed that there was 0.118 grams of alcohol in 100 millilitres of Ms Pickard’s blood just after midnight. An expert calculated the concentration at the time of the accident to be between 0.08 grams and 0.15 grams of alcohol in 100 millilitres of blood. Cannabis was also detected. In combination, these drugs significantly increased the risk of an accident and markedly reduced Ms Pickard’s capacity for safe driving. On any view, the departure from the ordinary and expected standard of care was gross. Ms Pickard approached the intersection at very high speed, failed to perceive a stop light at a major intersection and did not appreciate that a car was turning in front of her.
The driver of the Holden was admitted to hospital. She sustained fractures of both the tibia and fibia of her right leg. Ms Pickard’s passenger suffered severe injuries including a shattered right kidney, a lacerated liver, a damaged spleen, fractured ribs, a lung contusion and multiple fractures of the spine which required fusion and pinning. Her injuries required extensive treatment. In both cases there will be permanent and significant disabilities and both women have been profoundly affected, physically and mentally.
The maximum penalty for the offence of aggravated causing serious harm by dangerous driving is life imprisonment and a minimum licence disqualification of ten years.[2]
[2] Section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) is in the following terms:
(3)A person who—
(a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)by that culpable negligence, recklessness or other conduct, causes harm to another,
is guilty of an indictable offence.
Maximum penalty:
(a)where a motor vehicle or motor vessel was used in the commission of the offence and serious harm was caused to a person—
(i)      for a first offence that is a basic offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii)     for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(b)where a motor vehicle or motor vessel was used in the commission of the offence but serious harm was not caused to any person—
(i)      for a first offence that is a basic offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 1 year or such longer period as the court orders;
(ii)     for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for 7 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders;
(c)where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 5 years.
Increased penalties for offences against section 19A came into force in 2006. This increase demonstrated the growing awareness of the seriousness of driving offences. It reflected a recognition that those who drive in a manner that causes harm or the risk of harm to others, ought to be appropriately punished. The scope for punishment was increased to allow the range or scale of seriousness of conduct to be addressed. It was recognised that the culpability of those involved in collisions may be similar or even greater than those who cause harm to others by committing other offences against the person.[3]
[3] R v Thach; R v Chau [2010] SASCFC 16, [22].
On the hearing of the appeal, Ms Pickard tendered affidavits said to contain further and fresh evidence. The Director submitted that the evidence was not fresh and in any event was relevantly of little or no weight.
The Approach of the Sentencing Judge
The Judge, having discussed the seriousness of Ms Pickard’s conduct, turned to her personal antecedents:
You are a 26-year-old married woman, having given birth to your first child about six months ago. You are in good and stable employment in Perth, where you have been living for several years. At the moment you are the sole breadwinner of the family and you are committed to a house mortgage of $550 per week. You have no relevant prior convictions and there are references attesting to your good character.
You were apologetic immediately afterwards and you remain deeply contrite and remorseful. You have a loving, supportive and forgiving family here in Adelaide. You suffered some injuries yourself and also spent some time in hospital and there are remaining complications to yourself as well. You claim to have no memory of the collision or the events preceding it.
…
… You have completely given up alcohol and cannabis. You are plainly a reformed person and a productive member of society, so that there is little need for personal deterrence. You have a young child and an out-of-work husband to support. In all the circumstances a merciful non-parole period of seven months and 28 days is fixed.
When determining whether to suspend the sentence of imprisonment, the Judge reasoned:
The question of suspension is an agonising one. It grieves me to see you in this predicament, as it does to see two women struggling to deal with lifelong injuries. There are clearly ample reasons to justify suspension. The real question is whether the proper exercise of the discretion calls for an immediate term of imprisonment.
The manner of driving was particularly perilous, as it involved high speed, and grossly impaired judgment owing to the consumption of too much alcohol and cannabis. As much as it would otherwise be appropriate to suspend the sentence, the driving simply fell far too short of a safe standard and the injuries were too serious to permit that course.
The Appeal
Against the above background, I now turn to a consideration of the appeal.
Ms Pickard drove in a highly dangerous manner, with a high blood alcohol reading and with the presence of cannabis in her blood. She caused her passenger serious injury. She also caused serious injury to the driver of the other vehicle, an entirely innocent party. Her passenger and the other driver will be left with the effects of their injuries throughout life. This was very serious offending.
Two primary submissions were advanced in support of the appeal. It was contended that the sentencing Judge failed to have proper regard to a mitigating circumstance – the delay in prosecuting the offences and Ms Pickard’s change of circumstances during the period of delay including her significant steps in rehabilitating herself. It was further contended that the Judge failed to give proper consideration to the effects of an immediate custodial term on her six month old child.
Delay
It is to be observed that there had been a substantial delay between the time of the offending, 22 January 2008, and the sentencing of the defendant on 5 August 2011. This delay was occasioned primarily as a consequence of the conduct of the police and the prosecution.
The defendant was interviewed in the presence of her solicitor in May 2008. At that time, she gave her address as being her mother’s home and provided her mother’s contact details. Those investigating the matter were obviously aware of the fact that Ms Pickard had legal representation.
The information was laid in the Magistrates Court in May 2009, some 16 months after the incident. Although a summons had not been served, a warrant was issued on 28 July 2009 for Ms Pickard’s arrest. The address of Ms Pickard on the information was her former address at Klemzig, not her mother’s address. No attempt had been made to contact either Ms Pickard’s mother or her solicitor. No explanation has been proffered to explain why these matters were not addressed.
In October 2008, prior to any charges being laid, Ms Pickard had moved to Western Australia with her long term partner; his family were residents in Perth. Ms Pickard obtained full time employment. In or about May 2010, Ms Pickard fell pregnant. The warrant was served on Ms Pickard in Western Australia in July 2010. She was arrested and taken into custody for two days. She developed severe symptoms of anxiety in relation to her imprisonment at that time and, as a consequence, was hospitalised. Later in 2010, Ms Pickard purchased a house property in Western Australia.
Ms Pickard’s child, a son, was born in February 2011. At the time of sentencing, Ms Pickard was breast feeding, on maternity leave and due to return to work in November 2011. Her partner had, a short time earlier, been retrenched. Ms Pickard had become the sole income earner for the family.
In Law; Ex parte Attorney-General (Qld),[4] it was held that delay will not be a mitigating factor unless it causes unfairness to the offender.[5] There, two “obvious” circumstances were discussed in which it would be appropriate for delay to be mitigatory. One of those circumstances is relevant to the present proceeding and was described in the following terms:[6]
… where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim App Vic No 291 of 1994). Duncan is also an example of this.
[4]    R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63.
[5]    R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66 cited with approval in R v Leggett [2000] WASCA 327, [34]-[35]; Thorn v Western Australia [2008] WASCA 36, [37]; R v Lekaj (1997) 92 A Crim R 325.
[6]    R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66.
Accordingly, a convenient starting point in relation to delay where rehabilitation has been achieved during that period is the judgment of Street CJ in Todd where the following observations were made:[7]
… [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[7] R v Todd [1982] 2 NSWLR 517, 520 (Street CJ, with whom Moffitt P and Nader CJ at CL agreed). These remarks have been approved in a number of subsequent decisions; see for example, R v Suckling (1983) 33 SASR 133, 136 (Legoe J, with whom Wells & White JJ agreed).
In Kernich, Debelle J set out the above remarks in Todd and observed:[8]
Those observations were made in circumstances different from these, but they are, nevertheless, relevant. The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.
[8] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459.
The observations of the Court of Criminal Appeal of Western Australia in Duncan provide a further indication of the importance of rehabilitation in circumstances such as the within matter:[9]
… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[9] Duncan v The Queen (1983) 9 A Crim R 354, 356.
The delay in the present proceeding was a result of the conduct of the police and those responsible for the laying and serving of the information. The police were well aware of the contact details of Ms Pickard. Those details had been provided at the time of the interview. The police were also aware of Ms Pickard’s solicitor’s details. He had been present at the interview. As noted above, no explanation has been offered for the failure of the police to proceed promptly with the laying of charges or their service.

The defendant was arrested and held in custody without warning, about 30 months after the incident. By this time she had moved to Perth, taken employment and was pregnant. The experience understandably caused great distress. Not only was it unexpected, it was unnecessary. All could have been avoided with a telephone call to her solicitor or her mother.
It was submitted to the sentencing Judge that Ms Pickard had completely rehabilitated herself from her earlier alcohol and drug abuse. Her earlier dysfunctional existence, the result of a poor family background, had been replaced by a responsible lifestyle of a young married mother. These assertions were not challenged by the prosecution.
Counsel for Ms Pickard contended that the Judge failed to identify the specific factors that he took into account that militated against an immediate custodial sentence and failed to indicate the weight that he had given to those factors. The Judge had made no reference to any of the above circumstances when considering his discretion to suspend. As a consequence, it was said that it could be reasonably inferred that the Judge failed to have regard, or sufficient regard, to Ms Pickard’s complete rehabilitation between the collision and the time of sentencing and failed to have regard to a combination of factors which, it was said, made Ms Pickard’s case an exceptional one.
In my opinion the circumstances of delay, the reasons for delay, the impact of arrest, the change of circumstances of Ms Pickard and her positive rehabilitation are significant matters of mitigation. I consider that the sentencing Judge failed to give those factors proper consideration or weight. Those factors alone justify the Court in reconsidering the sentence to be imposed. They are matters of particular relevance to the suspension of a sentence of imprisonment.
Effect on a Dependant
Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
An important matter for consideration was the probable effect of any sentence on Ms Pickard’s six month old child. What contact would Ms Pickard have with her six month old child while in custody? Would there be separation but for short weekend visits? What proper arrangements would be made to allow normal maternal care to occur? None of these matters appear to have been addressed by the Judge.
It is unclear whether the Judge turned his mind to whether there would be a separation or whether Ms Pickard or her child could be together in custody. It appears that the South Australian prison system has the capacity to cater for a mother and baby in custody. The Director informed this Court that “unless [a] child has actually been born whilst the mother is in prison, the child is not able to remain in prison at the time that the mother is incarcerated; if [however] the child has been born whilst the mother is incarcerated the child can remain in prison up until the age of four”. The Court was further informed by the Director “in terms of the manner in which corrections deal with young children being separated by incarceration, there are facilities there for expressing milk. There aren’t facilities for breastfeeding children except on visits”. The attitude of the Department of Correctional Services is mystifying. There is the capacity to cater for mother and child. No explanation has been offered to explain why Ms Pickard’s child could not be with her in custody. In my opinion, the Judge has failed to adequately address the effect of the proposed sentence on the dependent child of Ms Pickard.
These are matters of considerable concern and occasion disquiet. The community is now sufficiently enlightened to understand that the separation of a young child from its mother is at the very least generally undesirable. Serious advancement consequences may be suffered by the child. These matters called for careful treatment. They do not appear to have been addressed.
In all the circumstances, I have reached the view that the Judge failed to have adequate regard to relevant matters when sentencing. The exercise of the sentencing discretion miscarried.[10] The Judge failed to give proper or any weight to Ms Pickard’s rehabilitation during the delay. The Judge failed to consider the probable effect of any sentences under consideration on the dependant infant son of Ms Pickard.
[10] House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321.
In these circumstances, this Court is to reconsider the sentence to be imposed on Ms Pickard. The Court’s powers are contained in section 353(4) of the Criminal Law Consolidation Act.
Further Evidence
On the hearing of the appeal, as earlier mentioned, Ms Pickard tendered affidavits said to contain further evidence. Annexed to one of those affidavits was a psychiatric report of Craig Raeside. That report contains the opinion that separation of the child from Ms Pickard, his primary caregiver, would be extremely stressful and may produce long term adverse psychological difficulties to the child. Dr Raeside added that such difficulties were likely to be more severe if Ms Pickard’s child was a year older. Further, the affidavit evidence establishes that the child has had little contact with his mother and that the previous regime of frequent breast feeding was interrupted by Ms Pickard’s imprisonment and that in particular, breast feeding was replaced by bottle feeding from expressed milk while Ms Pickard was in custody.
Dr Raeside was of the view that Ms Pickard’s mental health is “quite precarious at present”. Following examination, Dr Raeside formed the opinion that Ms Pickard exhibited symptoms of significant depression and anxiety, secondary to her current stressful situation. Dr Raeside considered that should Ms Pickard be obliged to serve out the sentence imposed, he would “expect her mood and anxiety to worsen significantly and [Ms Pickard] would certainly require medical and even psychiatric review necessitating antidepressant medication. She may well become suicidal again and might require inpatient psychiatric hospitalisation”.
The Director accepted that if error were found on the part of the sentencing Judge, it is appropriate for the Court to have regard to this further evidence without restriction in the resentencing process.
However, even if I had not concluded that there was error on the part of the sentencing Judge, I consider that it would be appropriate to act on the further evidence. As set out below, the tests discussed in the authorities concerning the reception of further material on appeal, have been met.
As earlier mentioned, pursuant to provisions of the Criminal Law Consolidation Act, this Court has the power to set aside a sentence on appeal and to resentence the offender. Section 353(4) provides:[11]
[11] Criminal Law Consolidation Act 1935 (SA) section 353(4).
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
Section 359 relevantly provides:[12]
[12] Criminal Law Consolidation Act 1935 (SA) section 359.
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—
…
(b)     order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c)     receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
…
(f)    exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and
…
but in no case shall any sentence be increased by reason of, or in consideration of, any evidence that was not given at the trial.
The power to receive further evidence on appeal has been the subject of much judicial commentary. Principles may be conveniently extracted from that commentary as follows:
·The power to receive further evidence on appeal must be exercised with caution[13] and exists to serve the interests of justice.[14]
·The proper purpose of receiving further evidence on appeal is to shed new light on facts which were before the sentencing Judge or to inform the appeal court of facts which were in existence at the time that the sentence was imposed but were unknown to the sentencing Judge.[15] It has been said that an adequate explanation for the failure to bring those facts to the sentencing Judge’s attention should be provided.[16]
·To receive further evidence, the appeal court must be satisfied that “the evidence could not have been obtained with reasonable diligence for use at the trial”,[17] that “the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive”[18] and that “the evidence must be apparently credible, but the [appeal court] will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth”.[19]
·The appeal court cannot receive further evidence about events which occurred after the time the sentence was imposed except where such further evidence shows the true significance of facts which were in existence at the time of sentencing.[20]
·Further evidence will be received on appeal if failure to receive that evidence might result in the continued existence of an unjust conviction or an unjust sentence.[21]
[13] See for example R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587.
[14] R v McIntee (1985) 38 SASR 432, 435.
[15] R v Smith (1987) 44 SASR 587, 588; R v C (2004) 89 SASR 270, [14]-[19]; see also Brain v The Queen (1999) 74 SASR 92, [86]; R v Sladic (2005) 92 SASR 36, [44].
[16] See R v Sladic (2005) 92 SASR 36, [44].
[17] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.
[18] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.
[19] R v Dorning (1981) 27 SASR 481, 485-486, citing Orchard v Orchard (1972) 3 SASR 89.
[20] R v Smith (1987) 44 SASR 587, 588 approved in R v C (2004) 89 SASR 270; see for example, R v Green (1918) 13 Cr App R 200; R v Ferrua (1919) 14 Cr App R 39.
[21] R v McIntee (1985) 38 SASR 432, 435.
In sentence appeals, the courts have adopted a flexible view. Further evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[22] There is also the public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension, the courts have developed principles, including those set out above, to facilitate the reception of evidence in appropriate cases. The decisions of McIntee,[23] Smith,[24] C[25] and Brain[26] are examples of means by which this tension may be resolved.[27] In the criminal court where liberty may be lost, the overriding principle must be the interests of justice.
[22] Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593.
[23] R v McIntee (1985) 38 SASR 432.
[24] R v Smith (1987) 44 SASR 587.
[25] R v C (2004) 89 SASR 270.
[26] R v Brain (1999) 74 SASR 92.
[27] See also, Aplin v Police [1999] SASC 273, Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341.
In the present proceeding, the further evidence adduced by Ms Pickard sheds new light on material before the sentencing Judge. At the time of sentencing, the Judge was aware that Ms Pickard had a six month old infant son for whom she cared. The Judge was undoubtedly aware that there would be some adverse impact on the child in the event of a separation of mother and child. The evidence of Dr Raeside in regard to both the infant child and Ms Pickard drew heavily on events occurring after sentence and shed new light on facts that were in existence at the time of sentence. In my view, the further evidence should be received as evidence on the appeal. Its reception will serve, not frustrate, the interests of justice.
The further evidence establishes that there is a real risk of psychological damage to Ms Pickard’s infant child if separation were to occur. In the circumstances, having regard to the terms of section 10(1)(n) of the Sentencing Act, this was a material and relevant consideration. As it appears that Ms Pickard and her child cannot be accommodated together in custody, this is a relevant factor when considering whether the sentence of imprisonment should be suspended.
The further evidence also establishes that there is a high probability that Ms Pickard will suffer from a psychiatric illness if she is to serve out her sentence of imprisonment. It would appear that this will result in part from her experience in custody in Western Australia, her anxiety and fears from being further separated from her child and of the consequences of such a further separation. I understand her precarious medical state to be directly related to her anxiety concerning the possible separation from her child.
Conclusion
Having regard to all relevant material, I am of the opinion that it is appropriate that Ms Pickard be imprisoned for a term of one year, 11 months and 28 days with a non-parole period of seven months and 28 days.
The Court’s discretion to suspend a term of imprisonment is to be found in section 38 of the Sentencing Act, which relevantly provides:
Suspension of imprisonment on defendant entering into bond
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
I consider that good reason exists to suspend the sentence. I would do so on Ms Pickard’s entry into a three year good behaviour bond. In reaching this conclusion, I have considered all of the matters addressed above, including the time spent in custody and on home detention bail. I consider the time in custody to have been a salutary lesson to the defendant.
I consider that the orders disqualifying the appellant from holding or obtaining a driver’s licence for two concurrent periods of 10 years are appropriate.
DAVID J: I would allow the appeal because of the delay in prosecuting the offences and the change of circumstances during the period of delay as set out in the judgments of Gray and Blue JJ. I agree with their remarks on that topic and the sentence they would impose on resentencing. I have nothing further to add.
I indicate, however, that I have severe reservations on the ground of further evidence being introduced as to the effect of imprisonment on her child and the alleged inadequacies of accommodating that child in custody. However, it is unnecessary for me to decide that point.
BLUE J: The defendant/appellant pleaded guilty in the District Court to two charges of aggravated causing serious harm by dangerous driving.[28]
[28] Criminal Law Consolidation Act 1935 (SA) s 19A(3).
The defendant was sentenced to imprisonment for two years less two days for time spent in custody on remand, with a non-parole period of eight months less two days for time spent in custody on remand, and disqualified from holding or obtaining a driver’s licence for 10 years. The sentencing Judge declined to suspend the sentence of imprisonment.
The defendant appeals against the refusal of the sentencing Judge to suspend the sentence of imprisonment.
Circumstances of offences
On 22 January 2008 at approximately 9.30pm, the defendant was driving her BMW coupe westwards on Oaklands Road, Marion, approaching the intersection with Morphett Road. The intersection was controlled by traffic lights. She was aged 23 at the time and had no prior convictions.
A friend of the defendant was a passenger in the BMW coupe, sitting in the front passenger seat.
A Holden Commodore sedan had approached the intersection from the opposite direction, travelling eastwards on Oaklands Road, to turn right into Morphett Road. The traffic lights were displaying a green right turn arrow applicable to the Commodore sedan and the driver was in the process of executing the right hand turn travelling at a speed of approximately 20 kilometres per hour.
The defendant overtook a vehicle approaching the intersection at a speed in the range of 103 to 111 kilometres per hour. The traffic signals were displaying a red stop light applicable to the defendant’s vehicle. Notwithstanding the red light, the defendant proceeded at the same speed westwards through the intersection. The defendant collided with the Commodore sedan while she was still travelling at a speed of 103 to 111 kilometres per hour.
The defendant’s blood alcohol concentration at the time of the collision was somewhere in the range between 0.08 per cent and 0.15 per cent. In addition, she was affected by marijuana, and her blood tetrahydrocannabinol level was four milligrams per litre.
As a result of the collision, the driver of the Commodore sedan suffered broken tibia and fibia of her right leg and bruising to her hip, neck and back. The defendant’s passenger in the BMW coupe suffered spinal fractures, fractured ribs, lung contusion, major kidney disruption, multiple lacerations of her liver and splenic haematoma.
The defendant herself suffered fractured ribs, a fractured left ankle, bruises and soft tissue injuries.
Subsequent events
At the time of the collision, the defendant was living with her mother in Adelaide and was in a relationship with her partner who was from Perth.
The defendant’s passenger was admitted to hospital, underwent extensive surgery and remained in hospital for approximately three weeks. In addition to her physical injuries, she suffered post traumatic stress disorder, pain disorder and major depression. She has been left with disabilities and ongoing incapacity to work. She provided to the Court a Victim Impact Statement which gave details of the very substantial effect of the collision upon her.
The driver of the Commodore sedan was admitted to hospital, underwent orthopaedic surgery, and remained in hospital for approximately one week. In addition to her physical injuries, she suffered anxiety and depression. She has been left with disabilities and an ongoing incapacity to work. She also provided to the Court a Victim Impact Statement which gave details of the very substantial effect of the collision upon her.
Immediately after the collision, the defendant apologised to her passenger. Subsequently, she attempted to ascertain the location of both of the other two women injured in the collision, and ultimately located the passenger in hospital about two weeks later. She visited the passenger and apologised again. She was unable to locate the driver of the Commodore sedan at that time.

On 27 May 2008, at the request of a Major Crash Investigation Unit police officer, the defendant attended at the Christies Beach Police Station. Present also were the defendant’s mother and her solicitor. The police officer obtained a DNA sample from the defendant, and served upon her an instant loss of driver’s licence notice. He said that he would send his report to the Director of Public Prosecutions (“the Director”) for an opinion and he would be notified what charges they recommended to be laid. He foreshadowed that the charges may be aggravated causing injury by dangerous driving.
The police officer informed the defendant that he would contact the defendant and her lawyer to inform them if there were charges and, if so, what they were. The defendant’s lawyer provided his contact details. The defendant provided her then address and home phone number, which were her mother’s address and phone number.
In October 2008, the defendant and her partner moved to Perth to live. In July 2009, the defendant commenced employment in Perth with IGA.
On 20 May 2009, a year after the interview, the Police issued an information and summons against the defendant alleging two counts of aggravated causing serious harm by driving a motor vehicle. The summons was returnable on 26 June 2009 and showed the defendant’s address being her former address in Klemzig rather than her current (mother’s) address.
No explanation was proffered by the Director to the Court for the long delay of 12 months between the defendant’s interview in May 2008 and the issue of the information in May 2009.
On 26 June 2009, the defendant had not been served with the summons. A Magistrate directed that the Registrar notify the defendant of the adjournment to 28 July 2009. On 28 July 2009, the summons had still not been served. A Magistrate was incorrectly informed that the defendant failed to answer her bail and ordered that an apprehension warrant be issued.
In April 2010, the defendant became pregnant.
On 14 July 2010, without warning the defendant was arrested in Perth pursuant to the warrant which had been issued a year earlier in July 2009. The defendant spent two days in custody before being granted bail. No enquiries had been made as to the defendant’s whereabouts of her mother or her solicitor, both of whom had attended the interview in May 2008 and had provided to the police their contact details. The summons had never been served on the defendant.
No explanation was proffered by the Director to the Court why no steps were taken for 12 months after July 2009 to locate the defendant, nor why a warrant of apprehension had been issued notwithstanding the summons had not been served.
On 17 December 2010, the defendant pleaded guilty to both counts, and was committed for sentence in the District Court on arraignment on 18 April 2011.
On 1 February 2011, the defendant’s son was born.
On 18 April 2011, the defendant was arraigned and the matter adjourned for sentencing submissions. On 18 July 2011, submissions were made and the defendant was sentenced. The maximum penalty for the offences is life imprisonment. The sentencing Judge effectively imposed a sentence of two years’ imprisonment with a non‑parole period of eight months as described above.
On 11 August 2011, the defendant filed a notice of application for permission to appeal. On 18 August permission was granted and on 22 August the defendant was released on home detention bail pending the hearing and determination of her appeal.
Sentencing Judge’s remarks
In determining the length of the sentence and the non-parole period, the sentencing Judge referred to the very serious nature and circumstances of the offence, the very substantial effect upon the victims, the defendant’s age and good character and the facts that she had now completely given up alcohol and cannabis, was a reformed person and had a young child and an out of work husband to support.
When the sentencing Judge came to address the question of suspension, he said as follows:
The question of suspension is an agonising one. It grieves me to see you in this predicament, as it does to see two women struggling to deal with lifelong injuries. There are clearly ample reasons to justify suspension. The real question is whether the proper exercise of the discretion calls for an immediate term of imprisonment.
The manner of driving was particularly perilous, as it involved high speed, and grossly impaired judgment owing to the consumption of too much alcohol and cannabis. As much as it would otherwise be appropriate to suspend the sentence, the driving simply fell far too short of a safe standard and the injuries were too serious to permit that course.
The sentencing Judge made no mention of a highly material factor on the question of suspending the sentence, namely the extraordinary and unnecessary delay between the commission of the offences in January 2008 and “service” of the summons in July 2010.
Grounds of Appeal
The overall ground of appeal is that the sentencing Judge erred in failing to suspend the sentence of imprisonment.
The defendant seeks leave to adduce fresh evidence and contends that, on the basis of that evidence, the sentence of imprisonment ought to have been suspended.
The defendant contends that the sentencing Judge failed, in considering whether or not to suspend the sentence of imprisonment, to have any or adequate regard to:
1.the delay between the date of the offence in January 2008 and the date of the sentence in July 2011;
2.the changes which had occurred in the defendant’s circumstances during the period of the delay, including her having given birth to her son, obtained stable employment and commenced to make restitution;
3.the exceptional hardship that would be caused to the defendant’s son as a result of imprisonment;
4.the defendant’s rehabilitation, remorse and contrition and good character;
5.the defendant’s financial circumstances and the effect a period of imprisonment would have on her employment, restitution and ability to support her family.
Regard to Relevant Factors
Circumstances of the Offence
The sentencing Judge did have regard to the circumstances of the offence, and no complaint is made on appeal in relation to that factor.
Deterrence is an important aspect of punishment for offences against s 19A of the Criminal Law Consolidation Act 1953 (SA), although it is not the only aspect and other considerations, including rehabilitation, must also be taken into account.[29]
[29] R v Thompson (1975) 11 SASR 217 at 222 per Bray CJ; R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ (White J and Millhouse J agreeing); R v Godwin [2001] SASC 295; (2001) 80 SASR 195 at [23] per Prior J (Nyland J and Lander J agreeing); R v Peake [2001] SASC 303; (2001) 221 LSJS 407 at [24]-[26] per Doyle CJ (Wicks J and Besanko J agreeing).
In the present case, the circumstances of the offending were extremely serious. The defendant drove through a red light at a suburban intersection at over 100 kilometres per hour while affected by both alcohol and cannabis.
Ordinarily, such offending could be expected to result in a custodial sentence.
Delay
General Principles
The principal sub-ground of appeal is that the sentencing Judge did not have regard to the delay between the date of the offence and the date of the sentence.
From the perspective of a victim, unnecessary delay in the prosecution and sentencing of a defendant causes additional anxiety, distress and other adverse emotional effects and, conversely, once the offender has been sentenced healing is often facilitated.
From the perspective of a defendant, unnecessary delay may result in the person being sentenced being in very different circumstances to the person who committed the offending.
From the perspective of the community, the various purposes which are served by imposing sentence upon an offender, including general and specific deterrence, protection of the community, retribution, denunciation and rehabilitation are all much better served by there being no unnecessary delay between the commission of the offence and the prosecution of the defendant.
There is a very strong public interest in criminal offences being investigated and prosecuted promptly where possible.
In the present case, it is remarkable and deplorable that such long delays occurred in the prosecution of the offences between January 2008 and July 2010. No explanation whatsoever was proffered for the delays, which were clearly the fault of the investigating and prosecution authorities.
The following general principles have been established as to whether or not unnecessary delay in the investigation and prosecution of an offence is a factor to be taken into account in favour of the defendant.
1.Mere unnecessary delay, without being coupled with relevant changes occurring during the delay, is not usually a reason in itself to reduce or suspend a sentence if otherwise indicated (although this will obviously depend on the length of the delay and the particular circumstances).[30]
2.Where, during the period of the unnecessary delay, the defendant has taken major steps in the progress of his or her life resulting in a substantial change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence.[31]
3.Where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant.[32]
4.The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation.[33]
[30] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454 at 459 per Debelle J; R v Micelli [1998] 4 VR 588 at 591 per Tadgell JA (Winneke P and Charles JA agreeing); R v Liddy (No 2) (2002) 84 SASR 231 at [42]-[43] per Mullighan J (Williams J agreeing at [148]) and [182]-[183] per Gray J; R v P [2003] SASC 428; (2003) 87 SASR 287 at [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).
[31] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454 at 459 per Debelle J (quoting and applying R v Todd [1982] 2 NSWLR 517 at 519 per Street CJ (Moffitt P and Nagle ECJ agreeing)); R v Miceli [1998] 4 VR 588 at 591 per Tadgell JA (Winneke P and Charles JA agreeing); R v P (2003) 87 SASR 287 at [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).
[32] R v Law; ex parte Attorney-General (Queensland) [1996] 2 Qd R 63 at 66 per Pincus and Davies JA and Demack J; R v Liddy (No 2) (2002) 84 SASR 231 at [42]-[43] per Mullighan J (Williams J agreeing at [148] and [182]-[183] per Gray J; R v P (2003) 87 SASR 287 at [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).
[33] R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 at [48]-[51] per Mullighan J (Williams J at [148] agreeing).
In R v Kane, Gowans, Nelson and Anderson JJ took into account an unnecessary delay of 16 months from November 1972 to March 1974 and said: [34]
… regard must also be had to the fact that the delay would leave room for life to be ordered according to plan in the meantime, and consequently it must be regarded as a consideration.
[34] R v Kane [1974] VR 759 at 767.
In R v Duncan,[35] Wallace, Brinsden and Roland JJ took into account a lengthy unnecessary delay during which the defendant had re-established himself in allowing an appeal and imposing a non-custodial sentence.
[35] Duncan v The Queen (1983) 9 A Crim R 354 at 356-357.
In R v Winchester, Hunt CJ (Smart and Grove JJ agreeing) took into account an unnecessary delay of about three years in the prosecution of the defendant, during which time she engaged in rehabilitation, in allowing an appeal and imposing a non-custodial sentence and said:[36]
… what may have been required by way of punishment if the prosecution had been instituted speedily is no longer necessarily required when the prosecution is, without any valid explanation, brought on tardily.
That very special circumstance, or qualification to the general rule that general deterrence requires the imposition of a custodial sentence in these cases, has been applied not infrequently …
[36] R v Winchester (1992) 58 A Crim R 345 at 349.
In R v Liang & Li, Winneke P (Ormiston JA and Crockett AJA agreeing) in allowing an appeal and suspending the sentences of imprisonment said: [37]
His Honour has fallen into error in failing to pay any or any sufficient regard to the effects of the delay which occurred between the commission of these offences and the date of the plea and sentence. As I have already indicated, these offences were committed between May and August 1992, yet it was not until April 1995 that the applicants were sentenced. By this stage, as might well have been expected, the circumstances of the applicants had changed significantly. Each applicant had married, each had fathered a child and each had obtained stable employment. That delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process.
[37] R v Liang & Li (1995) 82 A Crim R 39 at 45.
In R v Miceli, Tadgell JA (Winnecke P and Charles JA agreeing) referred to an unnecessary delay of 12 months between the defendant admitting the offence at interview and being charged, and a further delay of 14 months until he was sentenced, in allowing an appeal and suspending the sentence of imprisonment after three months and said:[38]
There is no doubt that proper sentencing principles dictate that undue delay in the disposition of charge should work in favour of a prisoner being sentenced … most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.
Application
[38] R v Miceli [1998] 4 VR 588 at 591.
In the present case, it can be inferred that the “reasons to justify suspension” referred to by the sentencing Judge were the factors which he had just identified as being relevant to the length of the non-parole period. Those factors did not include delay. He made no mention whatsoever in the entirety of his sentencing remarks of either the fact or significance of the delay. This clearly indicates that he did not take this factor into account and hence that he erred.
It follows that the sentencing discretion miscarried and it must be exercised afresh by this Court. It is not necessary to consider the other sub-grounds of appeal.
Application for leave to adduce fresh evidence
The defendant seeks leave to adduce fresh evidence on appeal by way of two affidavits each from herself, her mother and her solicitor.
Section 359(c) of the Criminal Law Consolidation Act 1935 (SA) empowers this Court “if it thinks it necessary or expedient in the interests of justice” to receive further evidence on appeal.
The following general principles have been established as to when it is in the interests of justice that further evidence be received.
1.A satisfactory reason should be proffered for the evidence not having been adduced during sentencing submissions.[39]
2.The further evidence should be sufficiently cogent and material to justify reception.[40]
3.The further evidence should comprise material which was not before the sentencing Judge and could not have been obtained with reasonable diligence for use at sentencing. [41]
4.The third general principle is not absolute and will yield if refusal to receive the evidence will permit an unjust sentence to stand.[42]
5.The further evidence should throw new light upon facts which were in existence at the time of sentencing (as opposed to facts which have only come into existence post sentencing).[43]
6.The fifth general principle is not absolute and there is room for some flexibility in order to do justice in a particular case.[44]
[39] Bean v Considine [1965] SASR 351 at 356 per Napier CJ and Chamberlain J, 359 per Hogarth J; R v Sladic [2005] SASC 210; (2005) 92 SASR 36 at [44] per Gray, Sulan and Layton JJ.
[40] Bean v Considine [1965] SASR 351 at 356 per Napier CJ and Chamberlain J, 359 per Hogarth J; R v Dorning (1981) 27 SASR 481 at 486 per Walters, Zelling and Williams JJ; R v Smith (1987) 44 SASR 587 at 588 per King CJ (Cox J and O’Loughlin J agreeing).
[41] R v Dorning (1981) 27 SASR 481 at 486 per Walters, Zelling and Williams JJ; R v Smith (1987) 44 SASR 587 at 588 per King CJ (Cox J and O’Loughlin J agreeing); R v C (2004) 89 SASR 270; [2004] SASC 244 at [14]-[18] per Doyle CJ (White J agreeing); R v Sladic (2005) 92 SASR 36 at [44] per Gray, Sulan and Layton JJ.
[42] R v McIntee (1985) 38 SASR 432 at 435 per King CJ.
[43] R v Dorning (1981) 27 SASR 481 at 485 per Walters, Zelling and Williams JJ; R v Smith (1987) 44 SASR 587 at 588 per King CJ; R v Brain [1999] SASC 358; (1999) 74 SASR 92 at [86] per Doyle CJ (Bleby J and Wicks J agreeing); R v C (2004) 89 SASR 260; [2004] SASC 244 at [14]-[18] per Doyle CJ (White J agreeing).
[44] R v Maniadis [1997] 1 Qd R 593 at 596-597 per Davies JA and Helman J (Fitzgerald P agreeing); Workcover Corporation of South Australia v Musolino [2007] SASC 249; (2007) 100 SASR 147 at [39] per Duggan J (White J and Kelly J agreeing).
In the present case, the evidence sought to be adduced falls into the following categories:
1.summary of submissions made on behalf of the defendant on sentence;[45]
2.the events and delay between May 2008 and July 2010;[46]
3.the defendant’s employment and caring for her son up until August 2011;[47]
4.the defendant’s financial circumstances, including her husband’s redundancy, her mortgage payments and her repayments to the insurance company;[48]
5.the prison authority’s practice with respect to contact with infants, breast-feeding and expression of milk;[49]
6.the effects of the limited contact between the defendant and her son in prison upon her son and herself;[50]
7.a report by a psychiatrist who interviewed the defendant on 14 September 2011.
[45] Affidavit of Ms Pickard’s solicitor sworn 15 August 2011 [1]-[5].
[46] Affidavit of Ms Pickard sworn 16 September 2011 (“second Pickard affidavit”) [1]-[10]; affidavit of Ms Pickard’s mother sworn 16 September 2011 [1]-[8].
[47] Affidavit of Ms Pickard sworn 12 August 2011 (“first Pickard affidavit”) [2]-[7].
[48] Second Pickard affidavit [15]-[18]; first Pickard affidavit [19]-[24].
[49] Affidavit of Ms Pickard’s solicitor sworn 15 August 2011 [6]-[8]; affidavit of Ms Pickard’s solicitor sworn 16 September 2011 [2]-[8].
[50] Affidavit of Ms Pickard’s mother sworn 12 August 2011 [1]-[21]; affidavit of Ms Pickard’s mother sworn 16 September 2011 [9]-[15].
In relation to category 1, this is a short and selective summary of submissions made. Where a transcript is not available, it may be appropriate that an affidavit identify the submissions made, but it ought not to be selective. Where, as in the present case, a transcript is available, it is unnecessary and inappropriate to file an affidavit containing a summary. In relation to categories 2 to 4, these matters were the subject of submissions made on behalf of the defendant during sentencing and the affidavits do not throw any significant new light upon these matters.[51]
[51] Once it is demonstrated that the sentencing discretion miscarried, the evidence could be admitted (R v Brain (1999) 74 SASR 92 at [91] per Doyle CJ (Bleby J and Wicks J agreeing)) to verify or expand on the submissions made concerning sentence.

In relation to categories 5 to 7, literally the evidence is expressed to relate to what actually happened to the defendant after she was sentenced. The evidence is capable however of identifying by inference the position as it was (or was likely to be) at the time of sentencing. These are matters which ought to have been addressed before the sentencing Judge on behalf of Ms Pickard. No explanation, or no satisfactory explanation, has been proffered for the failure to do so. But for my conclusion that the sentencing Judge erred in exercising his discretion whether or not to suspend the sentence, it is doubtful whether the further evidence ought to be received. However, it is not necessary to decide that question because, error having been established, the evidence becomes admissible.[52]
[52] R v Brain (1999) 74 SASR 92 at [91] per Doyle CJ (Bleby J and Wicks J agreeing).
Fresh exercise of Sentencing Discretion
It appears from submissions made on appeal as well as the evidence adduced on appeal that the practice of the prison authority is as follows:
1.children born to prisoners during imprisonment are generally permitted to remain with their mother until age four or thereabouts, but children born before imprisonment (however young) are not permitted to reside with their mother in prison;
2.access of children to their parents is limited to visits of 40 minutes each on Saturdays and Sundays;
3.breast feeding is either prohibited or only permissible during visits (there being inconsistent practices).
It should be observed that no justification was advanced by the Director for the practices adopted by the prison authority. On its face, it is very difficult to see the justification for the distinction drawn between a child born on the day before imprisonment and a child born on the day after imprisonment. It is also difficult to see the justification for the prohibition or extreme limitation on breast feeding, and the severe restrictions on access.
During the period of unnecessary and unexplained delay by the investigating and prosecuting authorities of two years between May 2008 and July 2010, the defendant had moved to Perth with her partner, commenced employment and become pregnant.
It follows that the hardship to her son (and the consequential hardship to the defendant) by reason of the defendant’s potential imprisonment and the practices of the prison authority was, in a very real sense, caused by the delay by the investigating and prosecuting authorities. It would not have occurred if they had acted expeditiously or at the least without such substantial and unjustified delay. Their conduct gave rise to a not unreasonable expectation by the defendant by April 2010 that she could get on with her life by having a child.
The conduct of the investigating and prosecuting authorities and the practices adopted by the prison authority have combined to work to the extreme disadvantage of the defendant.
The authorities referred to above establish that a combination of lengthy unnecessary delay coupled with a very substantial change in life circumstances of the defendant can constitute exceptional circumstances justifying the suspension of a term of imprisonment which otherwise ought to be served.
In weighing this combination of factors against the very serious nature of the offence, it is appropriate to take into account the related factors that Ms Pickard was generally of good character had demonstrated genuine contrition and remorse and by the time of sentencing had rehabilitated herself.
The combination of the lengthy, unconscionable delay by the investigating and prosecuting authorities, the practices of the prison authority, the very substantially changed life circumstances of the defendant occurring during that delay, the defendant’s character, contrition and rehabilitation, and the fact that the offence was of its nature one of reckless disregard as opposed to intent to cause harm make this a unique case. In this very special concatenation of circumstances, it is appropriate to exercise the prerogative of special mercy[53] and that the sentence of imprisonment imposed by the sentencing Judge be suspended.
[53] R v Osenkowski (1982) 30 SASR 212 at 212 per King CJ.
Conclusion
I would allow the appeal and order that the sentence of imprisonment be suspended upon the defendant entering into a bond to be of good behaviour for a period of three years.