R v RITTER

Case [2016] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RITTER

[2016] SASCFC 88

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

16 August 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

Appeal against sentence.

The appellant pleaded guilty to one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 and one count of causing harm with intent to cause harm contrary to s 24(1) of that Act.

The learned trial Judge imposed a total head sentence of six years and 11 months and fixed a non-parole period of five years imprisonment. As the appellant had pleaded guilty to the charge of assault at the first opportunity the Judge allowed the maximum 40% discount in respect of that charge. The Judge allowed a 10% discount to sentence for the very late guilty plea to the second charge.

The appellant appealed against the sentence on the grounds that both the head sentence and the non-parole period were manifestly excessive and that the Judge erred in not having or seeking materials on which a proper assessment could be made of the appellant’s prospects for rehabilitation.

The appellant sought to introduce fresh evidence in the form of a psychologist’s report and a report from an officer of the Department of Correctional Services.

Held per Parker J (Nicholson and Lovell JJ agreeing), dismissing the appeal:

1.  The reports should not be received as fresh evidence. The psychologist’s report could have been obtained for use at the trial and added little to what was before the sentencing Judge. Further, the reporting psychologist received incomplete instructions relating to the appellant’s criminal history. The report from the Department for Correctional Services officer did not add anything of significance to what was before the sentencing Judge.

2.  The head sentence was not manifestly excessive in light of the appellant’s significant history of domestic violence, the context of his relationship with the victim and the seriousness of the victim’s injuries.

3.  There was no requirement that the two sentences be ordered to be served concurrently. They involved clearly separate criminal offences which occurred almost five weeks apart.

4.  The Judge did not err in concluding that the appellant had extremely poor prospects for rehabilitation without seeking further materials. The appellant had a long criminal history, including numerous assaults for which he had received sentences of imprisonment, as well as many convictions for breaches of restraining orders and bail agreements.

Criminal Law Consolidation Act 1935 (SA) s 20(4), s 24(1); Criminal Law (Sentencing) Act 1988 s 10B(2)(a), s 20B, s 20BA, referred to.
R v Dorning (1981) 27 SASR…

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AGLC
R v Ritter [2016] SASCFC 88
Case
[2016] SASCFC 88
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R, who had been convicted of offences against the person. The dispute before the Full Court of the Supreme Court of South Australia, comprising Nicholson, Parker, and Lovell JJ, was whether the sentence imposed by the trial judge was manifestly excessive, particularly in light of fresh evidence presented on appeal.

The legal issues before the court were whether the fresh evidence, comprising a psychologist's report and a further pre-sentence report, should be admitted on appeal, and if so, whether it demonstrated that the original sentence, including the non-parole period, was demonstrably too severe. The appellant argued that the new evidence indicated a greater potential for rehabilitation than was appreciated by the sentencing judge, thereby rendering the sentence unduly harsh.

The court considered the criteria for admitting fresh evidence on appeal, which require that the evidence could not have been obtained with reasonable diligence for use at trial, would probably have an important influence on the outcome, and is apparently credible. While acknowledging that fresh evidence may be admitted if it sheds new light on material before the sentencing judge, the court distinguished this from evidence that merely updates existing information. The court noted the sentencing judge's findings regarding the appellant's poor prospects of rehabilitation, the gravity of the domestic violence offences, and the need for general deterrence and retribution. The court also referred to established principles regarding the heightened significance of deterrence in domestic violence cases.

Ultimately, the Full Court concluded that the fresh evidence did not meet the threshold for admission, as it did not significantly alter the material before the sentencing judge or demonstrate that the original sentence was manifestly excessive. The court found that the head sentence and the non-parole period were appropriate, reflecting the seriousness of the offences and the appellant's history. Accordingly, the court refused permission to receive the fresh evidence and dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow I would dismiss the appeal.BackgroundPersonal circumstances The appellant is 45 years old and has lived in Port Pirie his entire life. After leaving school during year 10 he worked for two and a half years at the Port Pirie abattoirs and again for several months when aged in his mid-20s. He has not since been employed and has received Centrelink benefits or a pension for most of his adult life. A report that had been prepared in November 2006 by a psychologist, Mary Johnson, for sentencing purposes was provided to the judge. She reported that early in 2005 the appellant was the victim of a violent unprovoked assault which left him with facial injuries, including damage to his right eye socket. This caused blurred vision and headaches and also psychological effects. Ms Johnson also reported that the appellant was very close to his younger half-brother prior to his death in a motor vehicle accident at Easter 2005. In 2005 the appellant’s only close friend was diagnosed with terminal cancer. The appellant spent time visiting and supporting his friend prior to his death. This also was an emotionally traumatic event. Ms Johnson reported that the appellant has been a daily user of alcohol and cannabis. At the time she prepared her report he was drinking to cope with the death of his half-brother and his close friend. Psychological testing undertaken by Ms Johnson showed that the appellant was suffering from depression at the upper level of the severe range as a result of the death of his half-brother and his friend. He was also suffering from severe post-traumatic stress disorder as a result of the assault. Ms Johnson also reported that the appellant was not psychologically aware and was very confused and frightened by his deteriorating level of psychological functioning. He required antidepressant medication as a necessary adjunct to cognitive behaviour treatment for depression and post-trauma stress and also psychiatric and psychological intervention. In the opinion of Ms Johnson the appellant was likely to comply with the terms of a bond requiring supervision by an officer of the Department for Correctional Services (“DCS”). A suitable treatment regime would assist him to comply with the requirements of a bond. Also provided to the judge were pre-sentence reports prepared in August 2006 and in January 2007 by a DCS officer. She reported that the predominant criminogenic risk factors for the appellant were impulsivity, poor anger management, grief and loss issues and alcohol and drug use. The appellant informed the DCS officer that he had participated in pre‑vocational and rehabilitation programs in prison and would be prepared to attend further programs to address his offending behaviour and grief and loss issues. However, the officer noted in her August 2006 report that the appellant had previously been tardy in attending departmental programs and sought to rationalise his non-attendance by reference to family issues. In her January 2007 report the officer noted that the appellant had contributed during sessions dealing with grief and loss, anger management, domestic violence, violence against women and alcohol and other drugs. He had also attended at the DCS office as directed.Criminal history

Evidence

Evidence Before The Court

The appellant was a danger to women with whom he became involved in relationships. The judge considered that his prospects of rehabilitation were extremely poor and that was to be reflected in the fixing of the non-parole period. That period, no less than the head sentence, must reflect issues of deterrence, retribution and punishment. His Honour then imposed the sentences referred to above and stated that as both offences were quite separate and distinct episodes of violence the sentences were to be served cumulatively resulting in a total sentence of six years and 11 months imprisonment. The appropriate non-parole period was five years imprisonment. Fresh evidence Counsel submitted that fresh evidence should be received on the appeal. The proposed evidence comprised a report from a psychologist, Richard Balfour, prepared on 11 April 2016 and a report from an officer of the Department of Correctional Services dated 12 April 2016. The latter was in the form of a pre‑sentence report albeit that it was prepared some considerable time after sentencing. Counsel for the appellant submitted that the receipt of the fresh evidence would be consistent with the three criteria set out in R v Dorning.[1] Those criteria are, first, that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly, the evidence must be such that it would probably have an important influence on the outcome. Thirdly, the evidence must be apparently credible.[1] (1981) 27 SASR 481 at 485-486. Applications to lead fresh evidence are never lightly granted.[2] While an appellate court will not generally admit fresh evidence of events which have occurred after sentence was imposed, such evidence may be admitted where it sheds new light on material that was already before the sentencing judge.[3] However, there is an important distinction between evidence that sheds new light on material that was before the sentencing judge and evidence which merely updates what was known to the sentencing court.[4][2] In re van Beelen (1974) 9 SASR 163 at 188.[3] R v Smith (1987) 44 SASR 587.[4] R v Sladic (2005) 92 SASR 36 at [44]-[46]; R v Kafexholli [2012] SASCFC 140. Counsel for the appellant submitted that the report provided by Mr Balfour and the new pre-sentence report prepared by the DCS contained more detailed and further information on the appellant’s state of health and the cause of his current and past offending. Mr Balfour had expressed the view that with appropriate rehabilitation there was considerable scope for the appellant to overcome the psychological problems that fuel his offending behaviour. That was particularly so given the new information that his motivation to participate in drug and alcohol rehabilitation was improving and that the drug and alcohol problems represented a maladaptive coping strategy for his mental health issues. Optimal psychological and psychiatric treatment would enable the appellant to develop adaptive alternative coping strategies.

Decision

Reasons for decision

Given the circumstances of the two offences, the context in which they occurred, the appellant’s long history of violence and in particular domestic violence, his poor history of compliance with orders and limited rehabilitation prospects, I consider that the non-parole period bore an appropriate relationship to the head sentence and was not manifestly excessive.Conclusion Neither the head sentence nor the non-parole period were manifestly excessive. The judge did not err in concluding that the appellant had poor prospects for rehabilitation without seeking further materials. I would refuse permission to receive fresh evidence on the appeal. I would dismiss the appeal. LOVELL J: I agree that the appeal should be dismissed and with the reasons of Parker J.

Ratio Decidendi

Legal Principle Established

Counsel submitted that because the complete rehabilitation of the appellant was possible, the sentence imposed was particularly harsh, particularly in view of the lack of appropriate treatment in the past and his willingness to avail himself of that treatment. For those reasons it was submitted that the Court should resentence the appellant having regard to the new material.ConsiderationThe sentences In R v Wilkinson Gray J (with Sulan J agreeing specifically and White J agreeing generally) observed that the courts have long recognised that personal and general deterrence have a heightened significance when sentencing for crimes of domestic violence.[5] Gray J went on to state that:[6]Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes.[5] (2008) 101 SASR 21 at [28].[6] Ibid at [29]. The observations made by Gray J in R v Wilkinson followed those made by Doyle CJ in R v Lennon (with Prior and Vanstone JJ agreeing) that:[7]The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and the protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender.[7] (2003) 86 SASR 295 at [12]. The judge observed that the physical, emotional and financial abuse in this case was as bad a history of domestic violence as he had ever seen. Immediately following that observation the judge noted that the appellant could not be punished for criminal conduct with which he had not been charged. However, the history of uncharged violent conduct placed the two charged offences in their proper context. Those two offences had been committed against a background of similar instances of violence and revealed that they were not isolated acts of aggression. The observations made by the judge about the gravity of the appellant’s conduct were entirely consistent with the admitted facts and also properly reflected the seriousness with which this court has viewed acts of domestic violence, particularly where those acts occur in the context of an abusive relationship. The victim had been subject to consistent physical, financial and emotional abuse and threats to harm her and her children if she were to seek assistance. It is also significant that the second offence occurred only two weeks after the victim had sustained a similar, but less serious, injury to her mouth.