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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v SCOTT

Details

AGLC: R v Scott [2011] SASCFC 149
Case: [2011] SASCFC 149
Decision Date: 2 December 2011

CaseChat Overview and Summary

The appeal concerned a decision by a sentencing judge to revoke a suspended sentence and impose a reduced custodial sentence. The appellant had been sentenced in 2008 to two years and six months imprisonment, suspended on the condition of entering into a bond. After an initial breach in 2009, which was excused and the bond extended, the appellant committed further breaches by failing to attend supervision appointments. The sentencing judge revoked the bond but reduced the original sentence. The appellant sought to appeal this decision, arguing that the breaches should have been excused or that special circumstances warranted a reduction in the sentence.

The court was required to determine whether there were proper grounds to excuse the appellant's breaches of the bond under section 58(3) of the Criminal Law (Sentencing) Act, and alternatively, whether special circumstances existed under section 58(4) of the Act that would justify reducing the original sentence. The appellant also sought to introduce fresh evidence in the form of an affidavit detailing a physical condition and the psychological impact of witnessing a killing.

The Full Court dismissed the appeal. It reasoned that the purpose of a suspended sentence would be undermined if repeated breaches of its conditions, designed to ensure its workability, were excused. The court found that the sentencing judge had correctly concluded there were no proper grounds to excuse the breaches. Furthermore, the court held that the sentencing judge was already aware of the appellant's psychological issues, and the additional material in the affidavit would not have altered the judge's decision, especially as the information could have been readily obtained with proper inquiry. Consequently, the application to introduce fresh evidence was rejected, and the court agreed that no special circumstances existed to warrant a reduction in the sentence under section 58(4).

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the sentencing Judge has not erred in her careful assessment of those matters personal to the appellant.Conclusion I would dismiss the appeal. 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. BLUE J: I agree with the reasons of David J. 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. 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). Dr Cayley expressed the opinion in each report that the defendant would benefit from an ongoing treatment program from a clinical psychologist. 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. 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. 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). I too would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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