R v Simpson

Case [2013] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIMPSON

[2013] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice White)

19 April 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

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

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

A District Court Judge imposed a single sentence of imprisonment for eight years and fixed a non-parole period of three years for two offences of indecent assault and one offence of procuring an act of gross indecency - the appellant contends that the sentence is manifestly excessive, particularly having regard to his poor health - the appellant also contends that the Judge sentenced on an incorrect factual basis in considering that appropriate treatment programs had been "set in train" to address his health problems and tenders fresh evidence concerning those problems.

Held (by the Court):  the orders of the Judge should be set aside and the appellant resentenced.

(1) (per Kourakis CJ):  the Judge did not sentence on an erroneous factual basis, but the head sentence is manifestly excessive;

(2) (per Gray J):  it is in the interests of justice for the further evidence to be admitted - further, the Judge failed to pay adequate regard to the problems arising from the defendant's poor health and, in particular, the inability of the prison authorities to provide proper treatment for his ongoing mental illnesses;

(3) (per White J):  the sentence was affected by the Judge's erroneous belief that the appellant's psychological health problems would be treated appropriately while in custody;

(4) (per Kourakis CJ and White J): the appellant should be resentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a term of imprisonment of six years with a non-parole period of two years - both the head sentence and the non-parole period should be taken to have commenced on 15 December 2011;

(5) (per Gray J, dissenting):  the appellant should be resentenced to a term of imprisonment of five years with a non-parole period of 18 months - the head sentence and non-parole period should be taken to have commenced on 15 December 2011.

Correctional Services Act 1982 (SA), s 27; Criminal Law Consolidation Act 1935 (SA), s 56, s 58; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 20B; Freedom of Information Act 1991 (SA), referred to.
R v Pickard [2011] SASCFC 134; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432; R v C (2004) 89 SASR 270; Brain v The Queen (1999) 74 SASR 92;

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R v Simpson [2013] SASCFC 28
Case
[2013] SASCFC 28
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed by a District Court Judge on the appellant, who had been found guilty of two counts of indecent assault and one count of procuring an act of gross indecency. The appellant argued that the eight-year head sentence with a three-year non-parole period was manifestly excessive, particularly in light of his poor health. He also contended that the sentencing Judge had proceeded on an incorrect factual assumption regarding the availability of appropriate treatment programs for his health issues, and sought to adduce fresh evidence to support this claim.

The central legal issues before the appellate court were whether the sentence imposed was manifestly excessive, and whether the sentencing Judge had erred in his factual assessment concerning the provision of treatment for the appellant's health problems in custody. The court was also required to consider the admissibility of fresh evidence concerning the appellant's health and the adequacy of treatment received in prison.

The majority of the court found that while the sentencing Judge had not necessarily sentenced on an erroneous factual basis, the head sentence was manifestly excessive. Two judges specifically noted that the Judge failed to adequately consider the appellant's poor health and the inability of prison authorities to provide proper treatment for his ongoing mental illnesses. The court agreed that the sentence was affected by an erroneous belief that the appellant's psychological health problems would be treated appropriately in custody.

Consequently, the court allowed the appeal, set aside the original sentence, and resentenced the appellant. The majority imposed a head sentence of six years imprisonment with a non-parole period of two years, to commence from the date of the original sentence. One judge, dissenting, proposed a head sentence of five years with an 18-month non-parole period.

Orders

Orders of the court

Held (by the Court): the orders of the Judge should be set aside and the appellant resentenced.

(1) (per Kourakis CJ): the Judge did not sentence on an erroneous factual basis, but the head sentence is manifestly excessive;

(2) (per Gray J): it is in the interests of justice for the further evidence to be admitted - further, the Judge failed to pay adequate regard to the problems arising from the defendant's poor health and, in particular, the inability of the prison authorities to provide proper treatment for his ongoing mental illnesses;

(3) (per White J): the sentence was affected by the Judge's erroneous belief that the appellant's psychological health problems would be treated appropriately while in custody;

(4) (per Kourakis CJ and White J): the appellant should be resentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a term of imprisonment of six years with a non-parole period of two years - both the head sentence and the non-parole period should be taken to have commenced on 15 December 2011;

(5) (per Gray J, dissenting): the appellant should be resentenced to a term of imprisonment of five years with a non-parole period of 18 months - the head sentence and non-parole period should be taken to have commenced on 15 December 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Of particular relevance on the appeal was the question of the inadequacy of treatment available for the defendant in respect of his mental illnesses while in custody. His other medical conditions appear to be adequately addressed within the prison environment. The defendant sought to adduce further evidence on the appeal to support his contentions.Further Evidence I have extracted the following guidelines from the authorities addressing the reception of further evidence:[6]-The power to receive further evidence on appeal must be exercised with caution[7] and exists to serve the interests of justice.[8]-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.[9] It has been said that an adequate explanation for the failure to bring those facts to the sentencing Judge’s attention should be provided.[10]-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”,[11] 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”[12] 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”.[13]-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.[14]-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.[15][6] R v Pickard [2011] SASCFC 134, [41].[7] See for example R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587.[8] R v McIntee (1985) 38 SASR 432, 435.[9] 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].[10] See R v Sladic (2005) 92 SASR 36, [44].[11] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.[12] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.[13] R v Dorning (1981) 27 SASR 481, 485-486, citing Orchard v Orchard (1972) 3 SASR 89.[14] 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 Rep 200; R v Ferrua (1919) 14 Cr App Rep 39.[15] R v McIntee (1985) 38 SASR 432, 435. In sentence appeals, the Court has 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.[16] 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,[17] Smith,[18] C[19] and Brain[20] are examples of means by which this tension may be resolved.[21] In the criminal jurisdiction where liberty may be lost, the overriding principle must be the interests of justice.[16] Bean v Considine [1965] SASR 351; R v Maniadis [1997] 1 Qd R 593.[17] R v McIntee (1985) 38 SASR 432.[18] R v Smith (1987) 44 SASR 587.[19] R v C (2004) 89 SASR 270. [20] R v Brain (1999) 74 SASR 92.[21] See also, Aplin v Police [1999] SASC 273, Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341.

Decision

Reasons for decision

WHITE J
Having regard to all relevant matters, I would impose a head sentence of five years imprisonment. I would fix a non-parole period of 18 months.[22] [22] This would allow the defendant to engage in the usual pre-release programs.Conclusion I would allow the appeal, set aside the orders of the Judge and resentence the defendant to a term of imprisonment of five years with a non-parole period of 18 months. The head sentence and non-parole period should be taken to have commenced on 15 December 2011. A jury found the appellant guilty of two offences of indecent assault[23] and one offence of procuring an act of gross indecency.[24] The victim of the three offences is the daughter of a good friend of the appellant. [23] Criminal Law Consolidation Act 1935 (SA), s 56 – maximum penalty 8 years imprisonment.[24] Criminal Law Consolidation Act 1935 (SA), s 58(1)(b) – maximum penalty 3 years imprisonment. The jury acquitted the appellant on a further account of indecent assault on the same victim. A District Court Judge imposed a single sentence of imprisonment for eight years and, having regard to the appellant’s age and health, fixed a non-parole period of three years. The appellant appeals against that sentence, contending that it is manifestly excessive having regard to the nature of his offending and his personal circumstances, in particular, his poor health. In addition, the appellant contends that the Judge sentenced him on an incorrect factual basis as the Judge had considered that the Department for Correctional Services and the Prison Health Service had “set in train” appropriate treatment programs to address his health problems. He contends that his experience in custody, both before and after being sentenced, has shown that the Judge’s belief in that respect was mistaken. To support that submission, the appellant asked the Court to receive on appeal evidence concerning the adequacy of the treatment afforded him while in custody and its effects on his health. In my opinion, the appellant has established an error in the sentencing decision with the effect that this Court should re-sentence. That makes it unnecessary to determine the application to adduce fresh evidence. Account can be taken of that evidence in the new sentencing decision.The appellant’s offending and its consequences The appellant was born in 1943. Between 1964 and 1984 he served in the Royal Australian Air Force (RAAF). The victim’s father also served in the RAAF and they became good friends. The appellant and his wife were accustomed to visiting the victim’s family periodically. It was common for them to park their caravan on the property and to stay, sometimes for several weeks. The victim was born in 1973 and there was accordingly a 30 year age difference between her and the appellant. From an early age, the appellant took an interest in the victim and they developed an affectionate adult-child relationship. The first offence of indecent assault occurred in the victim’s family lounge room when the victim was about 13 years old. The appellant sat behind the victim, massaged her neck and shoulders and then her breasts. Over the next few minutes he cupped her breasts in his hands and rubbed them.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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