R v SCOTT

[2011] SASCFC 149

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCOTT

[2011] SASCFC 149

Judgment of The Court of Criminal Appeal

(The Honourable Justice David, The Honourable Justice Peek and The Honourable Justice Blue)

2 December 2011

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

Appeal against sentence – appellant was sentenced to imprisonment for two years and six months with non-parole period of one year and eight months in 2008 – that sentence was suspended on the appellant entering into a bond – appellant had the benefit of good behaviour bonds and suspended sentences in the past – appellant breached the bond in 2009 – breach was excused and bond extended – appellant then committed a series of breaches of bond by failing to keep appointments for the purposes of supervision – sentencing Judge revoked the appellant’s bond but reduced the original sentence to two years, three months and three weeks with a non-parole period of one year, five months and three weeks – whether there were proper grounds to excuse the breach of bond under s 58(3) of the Criminal Law (Sentencing) Act – whether there were special circumstances which warranted the exercise of the Court’s powers under s 58(4) of the Criminal Law (Sentencing) Act – appellant swore an affidavit in July 2010 detailing treatment of a physical condition and psychological impact of witnessing a killing – whether affidavit of the appellant could be introduced as fresh evidence.

Held: appeal dismissed – the very nature of a suspended sentence would be frustrated if continual breaches of conditions which existed to make the bond workable were allowed to be made – the sentencing Judge was correct to conclude that there were no proper grounds to excuse the breaches – the sentencing Judge was acquainted with the appellant’s psychological problems – the affidavit of the appellant would not have influenced the sentencing Judge’s decision – with proper enquiry the additional material could have been readily available – application to introduce fresh evidence rejected – sentencing Judge was correct to reject the submission that there were special circumstances for the purposes of s 58(4) of the Sentencing Act.

Criminal Law (Sentencing) Act 1988 (SA) s 58(3), s 58(4), referred to.
R v Buckman (1988) 47 SASR 303; R v Dorning (1981) 27 SASR 481, applied.

R v SCOTT
[2011] SASCFC 149

Court of Criminal Appeal: David, Peek and Blue JJ

1. DAVID J:              The appellant appeals against a decision by a District Court Judge revoking a suspended sentence of imprisonment for admitted breaches of conditions of a bond. 

2. The appeal is concerned with the question whether the Judge erred in not finding that there was proper grounds to find that the breaches should be excused or alternatively whether there were special circumstances which would justify reducing the term of the original sentence.[1]  In considering whether special circumstances existed, the appellant now argues that this Court, pursuant to well established principles, should receive fresh evidence which was not before the sentencing Judge.

   [1]    Criminal Law (Sentencing) Act 1988 (SA) s 58(3), s 58(4).

   Background facts

3. The appellant had originally been sentenced in the District Court on 17 April 2008 for the offences of illegal use of a motor vehicle, aggravated serious criminal trespass (non-residential), theft and providing a false name.  The offending occurred between 28 and 30 April 2007 when the appellant, with a co‑accused, stole a vehicle.  That vehicle was driven to the Goodwood Centre pharmacy where, in the early hours of the morning of 30 April 2007, they broke into the pharmacy using a sledgehammer and stole a large quantity of prescription and non-prescription medications as well as other goods to the value of approximately $4,000.

4. When a police officer responded to the alarm, he arrived at the scene and attempted to detain both the appellant and her co-accused.  The appellant and the co-accused managed to get into the car and drive off whilst struggling with the officer who was dragged for several metres before eventually becoming disengaged.  The officer suffered injuries including a fractured finger, bruising and cuts.

5. A high speed chase then ensued involving other police officers.  Three vehicles were hit causing significant damage and injury to a driver before the vehicle was forced into a fence.  The appellant attempted to flee, but was eventually caught and gave the police a false name and address.

6. At the time of the original sentencing the appellant had a lengthy antecedent history for traffic drug and dishonesty offences, but had not served a custodial sentence.  She had had the benefit of good behaviour bonds and suspended sentences in the past.  At the time of sentencing the sentencing Judge had the benefit of a report from a psychologist, Dr Carol Cayley, who was of the opinion that the appellant suffered from a major depressive disorder and severe anxiety.  She was also of the opinion that the appellant needed ongoing treatment including medication. 

7. On 17 April 2008, the sentencing Judge sentenced the appellant to imprisonment for two years and six months with a non-parole period of one year and eight months.  He suspended the sentence on the appellant entering into a bond to be of good behaviour in the sum of $1,000 for a period of two years.  The conditions of the bond were that she be of good behaviour, to be under the supervision of an officer of the Department of Correctional Services and to obey his or her lawful directions as to drug testing, counselling treatment, participating in programs and the like.

8. On 27 October 2009, the appellant came before the sentencing Judge again for breaching that bond.  From the sentencing remarks on that occasion, the breach involved failing to attend various appointments which she needed to do in order to comply with her supervision requirements which were a condition of the original bond.  Furthermore, she breached the bond by committing a further offence of carrying an offensive weapon on 1 April 2009.  During that hearing, the sentencing Judge had a further report from Dr Cayley dated 31 August 2009.  In that report Dr Cayley diagnosed the appellant as suffering from a borderline personality disorder which was in addition to the diagnosis of depression and severe anxiety disorder which she had made in the earlier report. 

9. On 27 October 2009, after hearing submissions, the sentencing Judge found that there were proper grounds to excuse the breach of the bond[2] and, pursuant to s 58(3)(b)(i)(A) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), extended the bond for another 12 months to 17 April 2011. His Honour during sentencing said to the appellant:

   You should understand that should you breach the bond again you will be at risk of being brought back to court and being ordered to serve the sentence. That risk will continue until 17 April 2011. So if you are having difficulties complying with the requirements of the bond, please liaise with the department and see if they can put things in place so they can work around any difficulties you are having, don’t just ignore it and hope it will go away because the department was quite within its rights to bring these proceedings before the court because you were in breach. More than one breach you might find the court running out of patience and I don’t think anyone wants to see you go back into custody, particularly because you have responsibility for your little boy, but if you keep on breaching the court may not have any choice but to do that. Do you understand?

   [2]    Criminal Law (Sentencing) Act 1988 (SA) s 58(3).

10. From late November 2009 the appellant commenced a series of breaches of that bond by failing to keep appointments for the purposes of her supervision.  In all she admitted to breaching that bond by failing to attend appointments on a number of occasions from 25 November 2009 until 27 January 2010.  The breaches involving failing to report for supervision despite being directed to do so.  I set out a summary of them:

    1.The appellant attended a supervision appointment on 12 November 2009.

    2.The appellant failed to attend her next appointment on 25 November 2009, nor did she make contact to reschedule that appointment.

    3.A letter was sent to her Felixstow address on 30 November 2009 directing her to report for supervision on 8 December 2009.

    4.On 8 December 2009 the appellant failed to attend, nor did she make contact to reschedule.  On 9 December 2009 the appellant attended unscheduled at 4.55 pm.  She was informed that no one could see her at that time of day and was directed to report on 11 December 2009.

    5.On 11 December 2009 the appellant failed to report, nor did she make contact to reschedule.

    6.A letter was sent to her Felixstow address on 14 December 2009 directing her to report for supervision on 22 December 2009.

    7.On 22 December 2009 the appellant failed to report, nor did she make contact to reschedule.

    8.On 4 January 2010 a home visit was conducted, but the appellant was not home.  A letter was left at her address asking her to report on 7 January 2010.

    9.On 5 January 2010 the appellant phoned and said she had admitted herself to Warranilla for drug detoxification.  She was directed to contact corrections upon her release.

    10.On 11 January 2010 the appellant phoned Community Corrections advising that she had discharged herself from Warranilla.  She was directed to report on 12 January 2010.

    11.On 12 January 2010 the appellant failed to report, nor did she make contact to reschedule.  On 13 January 2010 the appellant attended North East Community Corrections, but left before she was seen by a corrections officer.

    12.On 14 January 2010 the appellant attended North East Community Corrections unscheduled and she was informed that further missed appointments would result in breach proceedings.  She was directed to report on 27 January 2010.

    13.On 27 January 2010 the appellant did not report, nor did she make contact to reschedule.

11. As a result of those admitted breaches, the appellant’s bail was revoked on 19 January 2011.  On 25 March 2011 a different sentencing Judge refused applications to excuse the breach[3] and to reduce the sentence because of special circumstances.[4]  However, the sentencing Judge reduced the original sentence to two years, three months and three weeks with a non-parole of one year, five months and three weeks from 25 March 2011 to make allowance for the time the appellant had spent in custody from the date her bail was revoked on 19 January 2011.

    [3]    Criminal Law (Sentencing) Act 1988 (SA) s 58(3).

    [4]    Criminal Law (Sentencing) Act 1988 (SA) s 58(4).

12. It is against those findings that the appellant now appeals.

    Appeal

13. I set out the grounds of appeal:

    1.The penalty imposed was manifestly excessive in that: -

    (a) There were proper grounds to excuse the breach – Section 58(3) Sentencing Act.

    (b) There were sufficient “special circumstances” to warrant the exercise of the Court’s powers under Section 58(4) of the Sentencing Act.

    And Her Honour erred in not exercising her powers under either subsection.

    2.The appellant will seek leave to adduce and have taken into account on the appeal the contents of her Affidavit sworn July 2010 including: -

    (a)     The report of Mr Hehir of the Northern Area Community and Youth Services Inc.

    (b)     The treatment for her back complaint.

    (c)     The impact on her psychological functioning of the killing witnessed by the appellant.

14. It is also important that I set out the relevant parts of s 58 of the Sentencing Act:

    58—Orders that court may make on breach of bond

    …

    (3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—

    (a)     may refrain from revoking the suspension; and

    (b)     may—

    (i)—

    (A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or

    (B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or

    (C)cancel the whole or a number of any unperformed hours of community service; or

    (D)revoke or vary any other condition of the bond; or

    (ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.

    (4)Where a court revokes the suspension of a sentence of imprisonment, the court—

    (a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;

    (b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;

    (ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;

    (c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

    (5)Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.

    Excusal of breaches

15. I deal with the first ground of appeal.

16. In short Mr Stokes, for the appellant, argues that there were proper grounds to excuse the breach because the breaching offences, namely failure to adhere to the terms of the bond in relation to supervision were far different in character than the original offending. In his argument Mr Stokes refers to the well established principles concerning s 58 of the Sentencing Act set out in R v Buckman[5] which deal with the correlation between s 58(3) and s 58(4) of the Sentencing Act. King CJ said:[6]

    I agree with what Jacobs J has said as to the meaning and relationship of these two subsections. It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6)[7] exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.

    The purpose of subs (5)[8] is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.

    (Footnotes added)

    [5]    R v Buckman (1988) 47 SASR 303.

    [6]    R v Buckman (1988) 47 SASR 303 at 304.

    [7]    Now subsection (4).

    [8]    Now subsection (3).

17. Mr Stokes argues that, in dealing with whether there was proper reason to excuse the breach, there was a disproportionality between the breaching offences and the original offending which should have attracted s 58(3).  In the circumstances of this case I disagree.  The history of the appellant’s breaches is extensive and serious.  They are serious because she was given the benefit of a suspended sentence for the purposes of addressing her serious drug problems.  Part of the process involved adhering to the conditions of the bond relating to supervision and assistance.  She was given the further benefit of an extension of the original bond by the original sentencing Judge with a severe warning as set out above.  Once again, she breached the bond on numerous occasions.  The very nature of a suspended sentence would be frustrated if continual breaches of conditions which existed to make the bond workable were allowed to be made.  In my view, the Judge correctly rejected the argument that there was good reason to excuse the breaches.

    Special circumstances

18. The next aspect of Mr Stokes’ argument on appeal is that her Honour should have found that there were special circumstances to reduce the term of the suspended sentence pursuant to s 58(4)(a) of the Sentencing Act. As the case of Buckman clearly states, in considering that matter the sentencing Judge is confined to circumstances personal to the appellant.  As part of that argument before this Court, Mr Stokes called in aid an affidavit of the appellant dated 21 September 2011 and a further report of Dr Cayley dated 31 August 2011.  Neither that affidavit nor that report was before the sentencing Judge and Mr Stokes contends that they amount to fresh evidence.  It is to be noted that the sentencing Judge had before her a report of Dr Cayley of 31 August 2009 in which Dr Cayley was of the opinion that the appellant was suffering from a major depressive disorder and social anxiety and was likely to meet the diagnostic criteria for a borderline personality disorder and also from the symptoms that she had experienced at the time of the previous assessment that was before the original sentencing Judge.  The sentencing Judge had regard to that report. 

19. However, the report now sought to be tendered and the affidavit which is also sought to be tendered raises another issue which was not before the sentencing Judge.  In that affidavit the appellant describes an incident in which she witnessed a killing in 2002.  I set out the relevant paragraphs:

    [9]In 2002, I witnessed a killing.  I do not want to name the parties involved.

    [10]I knew the person accused of the murder.  I also knew the deceased.  The deceased was an acquaintance I met through the accused.  The accused was a friend that I had known for a couple of years.

    [11]I had been living with the accused for approximately three weeks before the deceased was killed; however, I was in the process of moving out at the time.

    [12]I did not see the deceased being shot at but I did hear the gun shots and see the injuries.

    [13]I do not want to detail further the full extent of my knowledge on this matter; however, I know that the deceased died as a result of bullet wounds to the head, heart and lower body at the premises.  He died whilst I was cradling him in my arms.  What I witnessed and know has deeply impacted upon me and I find it difficult to talk about.

    [14]I provided a statement to police in respect of this incident.  The first statement they typed up on my behalf did not accurately reflect what I had told them and I did not agree to sign it.  They then reproduced it to truly reflect my knowledge on the matter.  I did sign this statement; however, this statement is not the one that was later produced to me during the court proceedings.

    [15]I did give evidence at the accused’s trial and was on the stand for five days.  But I believe that I was considered to be under the influence of drugs and could not provide reliable evidence.

    [16]I believe that the accused was acquitted on the ground that he was acting in self defence.

1. Dr Cayley, in her latest report which was not before the sentencing Judge, picked up on that issue and was of the opinion, as a result of the appellant witnessing the killing described, she meets the relevant diagnostic criteria for post traumatic stress disorder (chronic). This opinion was not before the trial Judge. As I understand it, Dr Cayley’s opinion is that because of the complex nature of all of the appellant’s psychological conditions, including post traumatic stress disorder, the appellant requires a comprehensive treatment program to assist her to manage her “complex and comorbid mental health issues”. It is to be noted that the sentencing Judge was acquainted with all of the psychological problems of the appellant except that additional problem of post traumatic stress disorder. In my view, having thoroughly canvassed both the sentencing remarks of the original sentencing Judge and the report which he received from Dr Cayley dated 25 March 2008, plus the report of Dr Cayley dated 31 August 2009, the additional material would not have had an important influence on the sentencing Judge’s decision not to reduce the sentence pursuant to s 58(4) of the Sentencing Act. As Dr Cayley said, the post traumatic stress disorder was only part of the appellant’s complex psychological condition.

2. In R v Dorning,[9] the Court said:[10]

   In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, 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; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v. Orchard. See also Reg. v. Parks, cited in In re van Beelen. It was pointed out in In re van Beelen that applications under s 359 to lead fresh evidence are never lightly granted.

   (Footnotes omitted)

   [9]    R v Dorning (1981) 27 SASR 481.

   [10]   R v Dorning (1981) 27 SASR 481 at 485.

3. In the present case, I am of the view that the extra material, bearing in mind the material that the sentencing Judge already had, could not be said to have been such as to affect her decision.  I also find that with proper enquiry it could have been readily available.  I would therefore reject the application to introduce fresh evidence, but emphasise that even if it were introduced it would not affect my decision as to whether the Judge was correct in her rejection of the submission that there were special circumstances to reduce the original sentence.

4. In my view, the sentencing Judge has not erred in her careful assessment of those matters personal to the appellant.

   Conclusion

5. I would dismiss the appeal.

6. PEEK J:   I agree that the appeal should be dismissed.  I substantially agree with the reasons of David J.  I agree with the additional remarks made by Blue J.

7. BLUE J:   I agree with the reasons of David J.

8. I wish to elaborate upon one matter.  The psychological reports of Dr Cayley dated 25 March 2008 and 31 August 2009 were before, or at least available to, the sentencing Judge.  Dr Cayley reported that the appellant had intermittently seen various medical practitioners (psychiatrists, general practitioner, psychologists) since the age of eight.  She had been diagnosed by them from time to time as suffering from depression, anxiety and agoraphobia.

9. Dr Cayley assessed the defendant as being likely to satisfy the criteria for diagnosis of major depressive disorder, social anxiety (chronic) and borderline personality disorder.  Dr Cayley reported that the defendant experienced relief when in custody because she found it easier to deal with her problems (including her chronic drug taking). 

10. Dr Cayley expressed the opinion in each report that the defendant would benefit from an ongoing treatment program from a clinical psychologist.

11. It became apparent from submissions made at the hearing of the appeal that, since she was sentenced in April 2011, the defendant has been on a waiting list to see a psychologist arranged by the Department of Correctional Services.  We were informed by the Director of Public Prosecutions that she is still on the waiting list and the Court could not be provided with any estimation as to when the defendant might be seen by a psychologist in prison.

12. One of the submissions made on behalf of the defendant was that she has better prospects of seeing a psychologist and of rehabilitation in the community as compared to in prison. 

13. I make three observations in relation to that submission.

    1.The submission highlights the very high desirability that the Department of Correctional Services take note of Dr Cayley’s opinions and arrange for the defendant to be seen by a psychologist at the earliest opportunity.

    2.The defendant did not demonstrate between the time when the suspended sentence was originally imposed in April 2008 and when she was remanded in custody in January 2011 that she herself attempted to take such opportunities as might be available to undergo a course of treatment by a psychologist in the community.

    3.In all of the circumstances, this submission does not entail a finding that there were “special circumstances” to reduce the term of the suspended sentence pursuant to s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA).

14. I too would dismiss the appeal.