R v Stanley, Craig Anthony
[1998] TASSC 13
•4 March 1998
13/1998
PARTIES: R
v
STANLEY, Craig Anthony
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 53/1997
DELIVERED: 4 March 1998
HEARING DATE/S: 3, 4 November 1997
JUDGMENT OF: Underwood, Wright and Slicer JJ
CATCHWORDS:
Criminal Law- Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Powers of Appellate Court - Generally - Respondent's promise to give evidence against co-offenders taken into account as a factor in mitigation - Sentence imposed appropriate - Respondent later refused to give evidence as promised - Sentence open to review.
R v J (1992) 64 A Crim R 441; R v Walters (1994) 33 NSWLR 612; R v Perez-Vargas (1986) 8 NSWLR 559; Pavlic v R (1995) 5 Tas R 186, applied.
R v Araya & Joannes (1992) 63 A Crim R 123; R v Smith (1987) 44 SASR 587; Plumstead v R 157/1997, considered.
Criminal Code 1924 (Tas), ss401(2), 402(4), 409(1)(c), 409(2).
Aust Dig Criminal Law [1021]
Criminal Law- Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Application to increase sentence - Other offences - Armed robbery, burglary, stealing - Whether sentence is manifestly inadequate.
R v Dowie [1989] Tas R 167; R v Tait (1979) 46 FLR 386; Osborn v R 58/1970, considered.
Aust Dig Criminal Law [1024]
REPRESENTATION:
Counsel:
Appellant: D J Bugg QC and C J Geason
Respondent: T J Ellis
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Clark and Gee
Judgment category classification:
Judgment ID Number: 13/1998
Number of pages: 21
Serial No 13/1998
File No CCA 53/1997
THE QUEEN v CRAIG ANTHONY STANLEY
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J (Dissenting)
WRIGHT J
SLICER J
4 March 1998
Order of the Court
Appeal allowed.
Sentence of five years' imprisonment quashed. In lieu thereof, a sentence of six years' imprisonment to date from 30 June 1996.
Serial No 13/1998
File No CCA 53/1997
THE QUEEN v CRAIG ANTHONY STANLEY
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
4 March 1998
The issues
Is there appellate jurisdiction to allow a Crown appeal against a sentence which is unassailable on the material before the learned sentencing judge but which is manifestly inadequate if reviewed in the light of events that have occurred after sentence?
If yes, is the sentence in this case manifestly inadequate?
If yes, what sentence should be passed in substitution?
The sentence and the material upon which it was passed
The respondent pleaded guilty to two counts of armed robbery, one count of burglary and one count of stealing. He was sentenced to five years' imprisonment. Counsel for the Crown told the learned sentencing judge that between 5.30 and 6pm on 25 June 1996, two men visited the respondent at his home. One of the two men asked the respondent for, and was given, a black stocking which was cut up so it could be worn as a mask. Shortly afterwards, the respondent and the other two men drove off in a utility. They went to a supermarket in a Launceston suburb. The utility stopped outside the store and one of the two men put the stocking over his face, took a gun from behind the seat, and jumped out of the vehicle. The driver drove to a nearby street where he and the respondent waited. Later, the other member of the trio returned with a handful of money, got in the utility and the three of them drove away. $600 was taken in the robbery.
The respondent and the other two men returned to the respondent's home. There was talk of "doing another job" and the three men got back into the utility and drove to an hotel bottleshop. On arrival, the battery lead became detached from the battery and the respondent got out to re-attach it. Whilst he was doing this, the man who earlier had gone into the store, again put the stocking over his face, took the gun and went into the bottleshop. He robbed the attendant at gun point of $1,960 in cash. He then ran out of the bottleshop, jumped in the utility and the three men returned to the respondent's home. The respondent received $100 and the other two men left his house with the rest of the stolen money.
Three days later, in the company of the driver of the utility, the respondent, his wife and his sister-in-law went to Deloraine and booked into the Deloraine Hotel. After the bar had closed for the night, the respondent and his male companions broke into the bar area and stole cigarettes, alcohol and cash to a total value of $6,400. The whole party then left the Deloraine Hotel and went to the Casino.
With respect to the respondent, the learned sentencing judge said:
"He is aged only 23 years and yet has appeared in courts for over 200 charges including over 90 burglaries and 90 stealings. These crimes were committed at a time when he was subject to suspended imprisonment on condition that he commit no offence of dishonesty although it is to be noted that a little over two years had passed since his last release from prison and this is his first appearance before the courts for dishonesty since then. Nevertheless, it is an appalling record and the court must have regard to it."
In his interview with the police, the respondent identified his co-offenders, and counsel for the respondent at the sentencing hearing told the learned sentencing judge that the respondent had given information which may enable the police to trace the gun that was used in the two armed robberies. Counsel then said:
"The successful prosecution of the other alleged participants will require, in my submission, the participation, by way of giving evidence, of the prisoner which he has indicated he is prepared to do. And because of that, since entering prison, the prisoner has been subject to violence, threats and offered other inducements in an attempt to persuade him from that course. Despite being in protection on one trip back to Risdon he was bashed in the prison van."
With respect to the respondent's past and proposed co-operation, the learned sentencing judge said:
"He was co-operative with the police, confessing to all crimes and naming the other offenders. He has stated that he will continue to co-operate and assist the prosecution of the other offenders, presumably by giving evidence. Although there is no suggestion that he has shown any remorse for his participation in these crimes, the court ought to have regard to his co-operation and pleas of guilty. Regard is also had to what his counsel said concerning the risk he has faced and will continue to face as a result of his co-operation."
On the hearing of this appeal, it was common ground that the sentence of five years' imprisonment on the whole indictment was appropriate.
Evidence on the hearing of the appeal
Without objection, the Director of Public Prosecutions read an affidavit sworn by Ms Geason, Crown counsel at the sentencing hearing. In it, she deposed that after the imposition of sentence she spoke to the respondent and he agreed to give evidence against his co-offenders and swore a statutory declaration. In this statutory declaration the respondent gave a detailed account of the commission of all the crimes committed by him and his co-offenders. Proceedings were commenced against the co-offenders. At a hearing before the Chief Magistrate conducted pursuant to the Justices Act 1959, s69A, the respondent gave incriminating evidence against one of the co-offenders. However, at a later hearing before the Chief Magistrate, the respondent refused to give evidence against the other co-offender. Thereafter, the respondent refused to give any further evidence at all, and, in result, the prosecution against the co-offenders was abandoned. No explanation for the respondent's apparent change of mind was proffered to this Court.
The appeal
The Crown filed an application to extend time within which to appeal against the sentence of five years' imprisonment. The respondent consented to this application and time was extended accordingly. The single ground of appeal is:
"That the sentence imposed was manifestly inadequate having regard to all the circumstances of the case those circumstances being that His Honour sentenced the Respondent upon the basis that he had undertaken to the Court to continue to co-operate with the Police and assist the prosecution of his co-offenders by giving evidence at their trial and he has since declined to continue that co-operation and refused to give evidence."
The provisions of the Criminal Code
The Code s401(2) provides:
"(2) The Attorney-General may appeal to the Court ¾
(a) ...
(b) ...
(c) by leave of the Court, against the sentence;"With respect to jurisdiction, the Code, s402(4) provides:
"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
The terms of s402(4) do not confine the jurisdiction of the court to cases where error occurred at the time sentence was imposed although of course, that has been the consistent approach of appeal courts in the case of appeals against sentence. See, eg, R v Dorning (1981) 27 SASR 481.
The Code, s409(1)(c), confers a general power on this Court to receive evidence upon the hearing of an appeal. With respect to the receipt of evidence pursuant to that power, a majority of this Court in Plumstead v R 157/1997 expressed approval of the following passage in the judgment of Gleeson CJ in R v Araya & Joannes (1992) 63 A Crim R 123 at 129 - 130:
"As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.
However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred."
There is ample authority for the proposition that when a sentence is attacked as being manifestly excessive, the court of appeal will receive evidence of events that occurred after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Smith (1987) 44 SASR 587, King CJ said at 588:
"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."
See also R v Eliasen (1991) 53 A Crim R 391; R v Morgan (1996) 87 A Crim R 104; R v Green (1918) 13 Cr App R 200; R v Babic (Victorian Court of Appeal, unreported, 27 May 1997).
In Plumstead (supra), Zeeman J expressed doubts about statements to the effect that a court of appeal will not receive fresh evidence of events which have occurred after sentence, but which have no bearing upon events which were in existence at the time of sentence. Zeeman J said at 20 that the authorities to that effect "may not be entirely consistent with the underlying basis of the decision in Lowe v R (1984) 154 CLR 606 at 613 - 614". His Honour expressed the view that the court did have a discretion in an appropriate case to admit evidence of events that occurred after the imposition of sentence. However, in my opinion, it is unnecessary to consider this aspect of appellate review any further because the evidence in this case goes to explain facts which were before the sentencing judge so as to put them in a new light. In his comments on passing sentence set out above, the learned sentencing judge clearly took into account as a factor of mitigation the respondent's stated intention to give evidence against the co-offenders. His subsequent refusal to do so puts an entirely new light on the indication given at the sentencing hearing. Had this fact been known to the learned sentencing judge at the time sentence was imposed, no doubt he would have not taken into account the respondent's promise to give evidence as a mitigating factor.
The Crown appeal against sentence
Once it is demonstrated that evidence of events that have occurred since the imposition of sentence ought to be received on an appeal against sentence, it follows that there is jurisdiction to review the sentence in the light of that evidence. There remains then only the question of whether the sentence of five years is manifestly inadequate, having regard to the fact that the respondent did not co-operate by giving evidence against his co-offenders as he promised he would. The researches of counsel and myself have discovered only one other case in which a similar consideration arose, R v J (1992) 64 A Crim R 441. The material facts in that case are indistinguishable from the material facts in this case. King CJ said at 442:
"I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring."
A little later, King CJ added, also at 442:
"It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender's failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence."
I respectfully agree with those passages taken from the judgment of King CJ. The relevant mitigatory fact is the giving of evidence against co-offenders and thus the provision of co-operation. A statement of intention to give such evidence is the best evidence of the relevant fact available at the time of sentence. Sentence is imposed upon the basis that the promised event will eventuate and thus, when it does not, the sentence is open to appellate review. It might perhaps be said that later evidence has revealed that the learned sentencing judge took into account a matter of fact that he should not have taken into account. If this approach is correct, upon error being established the sentence is vitiated and the appellate tribunal is required to exercise its own discretion. See Cranssen v R (1936) 55 CLR 499 and House v R in the same volume at 509.Whatever might be the correct approach for appellate intervention in a case such as this, the ground of appeal relied upon by the appellant is confined to manifest inadequacy. The appeal was pleaded and argued upon that basis and should be decided on that basis.
But is there a statutory bar to increasing the sentence?
The Code, s409(2), provides:
"In no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."
With respect to an identical provision in the Criminal Law Consolidation Act 1935 (SA), Olsson J, in R v J (supra) reached the conclusion that evidence of the type received on the hearing of this appeal was not the sort of evidence that the legislature had in contemplation when enacting the equivalent to the Code, s409(2). He said at 449:
"There is no doubt that the clear intention of the Parliament was to ensure that, so far as possible, an offender was not unfairly placed in double jeopardy; and that, where further evidence not given at trial is admitted on appeal, that ought not, in the normal course, to lead to an increase in the sentence imposed.
The sole evidence which was tendered in the instant case focuses upon establishing that, as a matter of objective fact, the undertaking given by the offender, as part and parcel of the basis upon which he was sentenced, has not been honoured and that, accordingly, the sentencing process proceeded on a false premise.
When the proviso to s 359 speaks of evidence that was not given at the trial it is, in my opinion, directing its attention to matters going to either the commission of the offence or the personal circumstances of the accused. It is not concerning itself with a situation in which the Crown is merely informing the Court that the person sentenced has failed to honour a specific undertaking given to the Court as an express basis upon which the sentence is imposed."
With respect to the foregoing remarks, the other two members of the court agreed with Olsson J. I see no reason why those observations should not apply with equal force to the provisions of the Code, s409(2).
Is the sentence manifestly inadequate?
The learned sentencing judge did not articulate the extent to which he was reducing what would otherwise be an appropriate sentence by reason of the respondent's promise to give evidence against his co-offenders. However, it is quite clear that his Honour did make some reduction on this account. Immediately before imposing the sentence he said:
"Armed robbery is one of the most serious of crimes and substantial sentences of imprisonment are called for in almost every case and certainly in the case of a prisoner with such a bad record for dishonesty as that of the prisoner. The sentence which will be imposed has been arrived at of course after having particular regard to the prisoner's low level of participation in the armed robberies and to his co-operation and pleas of guilty."
In the light of the learned sentencing judge's earlier observations set out above, it is clear that past and future co-operation was a major factor in the sentencing process. However, the question now is whether, in all the circumstances before the learned sentencing judge, absent the promise to give evidence against the co-offenders, was the sentence of five years' imprisonment manifestly inadequate?
In R v Dowie [1989] Tas R 167 this Court adopted the principles expressed in R v Tait (1979) 46 FLR 386 at 387 - 388 with respect to the disposition of Crown appeals against sentence. Those principles arise out of "time honoured concepts of criminal administration" (per Barwick CJ in Peel v R (1971) 125 CLR 447 at 452) which include avoiding, where possible, putting a person's liberty in jeopardy for a second time. I said in Dowie at 180 that in the case of a Crown appeal against sentence, the Court is obliged to guard against unfairness or injustice to a respondent arising out of error on the part of the sentencing judge. In my opinion, none of those concepts apply in a case such as this where the "error" was created by the respondent's own deliberate conduct. Those prisoners who are sentenced in part upon the basis that they will later give "Crown evidence" must understand that if they change their mind and refuse to give such evidence they run they risk that their sentence will thereupon be reviewed without the ordinary restraints that apply to the determination of Crown appeals against sentence.
Armed robbery is "one of the most serious crimes in the Calendar" (per Burbury CJ in Osborn v R 58/1970). In R v McFarlane A113/1993 this Court increased a sentence of six years to eight years for one count of armed robbery of a bank. In Devine v R A70/1993 this Court dismissed an appeal against a sentence of eight years for armed robbery of a Credit Union. However, a search of the Court records of sentences imposed for armed robbery discloses that these sentences are outside the general range of sentences imposed for this crime. It is true that in this case there are two armed robberies and one burglary and stealing, but the respondent's role in the armed robberies was very minor. In the first he only supplied the stocking used as a face mask and went in the utility with the other offenders; and in the second, he only re-attached the battery lead when the vehicle reached the scene of the robbery. The respondent's share of the proceeds of these two crimes accurately reflects his role in the criminal enterprises. Further, the respondent made a full confession to the police and pleaded guilty. He also identified his co-offenders to the police. There was nothing in the personal circumstances of the respondent to mitigate against the imposition of condign punishment but in my view in the circumstances surrounding his commission of all crimes, it cannot be said that five years was manifestly inadequate upon the basis that the respondent does not intend to give evidence against the co-offenders. Had the respondent played a principal part in either one or both of the armed robberies, I would be taking quite a different view of the sentence of five years.
The respondent's refusal to give evidence against the co-offenders after sentence was passed on his statement of intention to do so opens the sentence to review, but the ground relied upon for such review is that the sentence is manifestly inadequate and I am not persuaded that that is the case. I would dismiss the appeal.
WRIGHT J
4 March 1998
On 26 November 1996, the respondent was sentenced to five years' imprisonment after pleading guilty to two counts of armed robbery, one count of burglary and one count of stealing. The relevant facts were summarised by the learned sentencing judge in the following terms:
"The two armed robberies were committed last June on the one night in the company of two others who came to the prisoner's home and asked for a stocking. He obtained one for them, presuming that it was wanted to commit an armed robbery. The two others adapted it for use by cutting it up with scissors. He was invited to go with them in a car and agreed. From then on he was an abettor and played no active part in the first armed robbery, which was committed at a shop by one of the men disguised with the stocking and armed with a shotgun, while the prisoner and the third offender waited in the car. The prisoner presumed that there was probably a gun but did not see it until just before the principal offender left the car. In the first armed robbery the shopkeeper was a woman who was confronted by the principal offender with the stocking over his face and with the shotgun pointed at her. On the man's demand she gave him about $600 in cash.
The three offenders then returned to the prisoner's home and shortly after set off again to commit another armed robbery about 1½ hours after the first. The stocking and shotgun were used again. The prisoner abetted that crime and he assisted by reconnecting the battery on the car when it stopped outside the scene of that robbery which was a hotel bottle shop. Once again the principal offender was wearing the stocking and armed with the same gun. About $1,960 in cash was obtained. The principal offender pointed the shotgun at the shop attendant and demanded money. At one time he told the attendant not to touch anything or he would blow him away. The prisoner told the police that he was later given about $100 from the proceeds of that crime.
Three days later, he and others booked into a hotel at Deloraine and after the premises had closed for the night and they had retired to their bedrooms, he and another entered the bar area from outside. On the version told by the prisoner to the police he was a follower rather than a leader and he admitted only to taking a bottle of something and cash from bingo machines. In all, cigarettes, alcohol and cash to a value of $6,400 were stolen from the hotel premises."
The respondent is now aged 24 years. He is clearly an habitual criminal. Since 1982 he has appeared in various courts, both in Tasmania and interstate, in respect of more than 200 offences. He has been sentenced for ninety-three offences of burglary and four attempted burglary and for ninety-two offences of stealing, attempted stealing or motor vehicle stealing. The learned sentencing judge described it as an "appalling" record and this was plainly an apt description. The learned sentencing judge correctly observed that armed robbery is one of the most serious crimes and calls for a substantial sentence of imprisonment in nearly every case.
The learned sentencing judge also observed that after his arrest the respondent:
"... was co-operative with the police, confessing to all crimes and naming the other offenders. He has stated that he will continue to co-operate and assist the prosecution of the other offenders, presumably by giving evidence. Although there is no suggestion that he has shown any remorse for his participation in these crimes, the court ought to have regard to his co-operation and pleas of guilty. Regard is also had to what his counsel said concerning the risk he has faced and will continue to face as a result of his co-operation.
All these matters must be taken into account in his favour."
During the course of the sentencing proceedings, Crown counsel, Ms Geason, informed the learned sentencing judge that it was accepted by the prosecution that the respondent had been very co-operative with the police and that he intended to continue to co-operate by assisting the Crown with the prosecution of his co-offenders. Counsel for the respondent also informed the Court that the respondent was willing to give evidence against his co-offenders and he acknowledged that the successful prosecution of the co-offenders was dependent upon the his giving such evidence.
His Honour's observations when about to pass sentence concluded with the following remark:
"The sentence which will be imposed has been arrived at of course after having particular regard to the prisoner's low level of participation in the armed robberies and to his co-operation and pleas of guilty." [My emphasis.]
After the imposition of sentence on 26 November 1996, Ms Geason met with the respondent and discussed his proposed evidence. On 2 December 1996, he swore a statutory declaration, clearly implicating his co-offenders in each offence by name, and describing the manner in which each crime was committed. The following day (3 December 1996) he appeared in the Launceston Court of Petty Sessions and gave evidence in accordance with his declaration, upon a hearing pursuant to the Justices Act 1959, s69A. The matter was adjourned and the pending trial of two of his co-offenders was also postponed. On 11 April 1997, the respondent again attended at the Launceston Court of Petty Sessions when called to give evidence against his co-offender Riley on a s69A hearing. On this occasion, the respondent refused to take an oath or affirmation and refused to give evidence. He proffered no excuse. He was sentenced to seven days' imprisonment for contempt, as provided in the Justices Act 1959, s43. This supposedly coercive power is virtually useless when the witness is already serving a lengthy sentence of imprisonment.
On 14 April 1997, the respondent's alleged co-offenders appeared before Slicer J in the Criminal Court. Without the respondent's evidence, the Crown was unable to make out a case against the accused. A nolle prosequi had been filed three days previously in relation to the two counts of armed robbery and Crown counsel undertook to file a nolle prosequi in respect of the counts of burglary and stealing as well. The alleged co-offenders were discharged by the Court. On 30 June 1997, the Director of Public Prosecutions sought and obtained an order from the Chief Justice extending the time for the Crown to appeal against the sentence imposed upon the respondent on 26 November 1996.
The ground of the appeal now before the Court in consequence of that order is as follows:
"That the sentence imposed was manifestly inadequate having regard to all the circumstances of the case those circumstances being that His Honour sentenced the Respondent upon the basis that he had undertaken to the Court to continue to co-operate with the Police and assist the prosecution of his co-offenders by giving evidence at their trial and he has since declined to continue that co-operation and refused to give evidence."
In R v J (1992) 64 A Crim R 441, the Court of Criminal Appeal of South Australia had occasion to consider a similar matter. King CJ made the following observations, at 442:
"I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring.
The question of re-opening a sentence by reason of a failure of an offender to carry out his undertaking to give evidence against co-offenders, is a delicate one. The purpose of sentencing an offender before he is called upon to give such evidence, is to remove any incentive to implicate others falsely in order to obtain leniency for himself. If the offender gives evidence in the shadow of the fear that the prosecution may appeal, that purpose is to some extent frustrated.
On the other hand, it is most important for the integrity of the sentencing process that an offender should not be permitted to obtain leniency by reason of an undertaking which he does not carry out. To allow that to occur would provide encouragement to mislead the sentencing court by means of false undertakings.
Restraint is necessary in connection with appeals on this ground. The mere fact that the offender's evidence has not measured up to prosecution expectations or statements which he has previously given, in all respects, would not be a sufficient basis for allowing an appeal. Where, however, the offender refuses to give evidence, or gives evidence exonerating rather than implicating the alleged co-offenders in contradiction of his undertaking or stated intention to give evidence against them the situation calls for re-examination of the sentence which has been imposed on a basis which has been falsified by the event.
It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender's failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence."
In my opinion, these are the appropriate principles which should guide the approach of this Court in a case of this kind. The principles are of general application. They find statutory expression in the Crimes Act 1914 (Cth), s21E and the Criminal Appeal Act 1962 (NSW), s5DA, but the absence of a similar statutory formulation in Tasmania does not mean that the principles are inapplicable in this State.
It is plain that the Court must have jurisdiction to review sentences which have been procured by fraud (see R v Walters (1994) 33 NSWLR 612 at 617) but it cannot necessarily be inferred that the respondent has perpetrated a fraud upon the Court by refusing to give evidence as and when he did in the Court of Petty Sessions. The fact remains that he failed to honour his commitment to give evidence against his alleged co-offenders. He has chosen to give no evidence to explain that failure. He knew at the time he gave this commitment to the sentencing court that it would expose him to threats and unpleasantness in gaol, but he chose, nonetheless, to give that commitment for the purpose of securing a reduction in his sentence. When King CJ said in R v J (supra) "the reason for the offender's failure to give evidence against the alleged co-offenders is therefore immaterial", he was simply explaining the jurisdictional basis upon which an appellate court may review a sentence once the undertaking to co-operate had been breached. I would not take his Honour's remarks in this respect to mean that an acceptable explanation for the breach would not justify the appellate court in declining to increase the sentence to that which it should have been in the first place. King CJ was not indicating that, no matter what the circumstances, the appellate court should automatically impose a substantially more severe sentence. I take his Honour to mean that where an offender has undertaken to assist the authorities and has received a discount in his sentence in consideration of that undertaking, once it is shown that assistance has been withheld or withdrawn, an appellate court may properly review the sentence. Were it otherwise, it would be a public scandal. Criminals could make promises such as these and renege with impunity. The Court could only guard against such possible duplicity by refusing to give discounts in such cases. Discounts for co-operation are generally very substantial. It would be expecting too much to think that prisoners might co-operate with the prosecuting authorities if they were to receive no benefit from doing so. When dealing with serious gang type crimes, the justice system relies heavily upon the preparedness of one of the offenders to inform upon and, if necessary, give evidence against the others.
Whether an offender's promise of co-operation in exchange for leniency has any value, can only be known to the offender. Unless prepared to bring about a fundamental change in sentencing practice and law enforcement by ignoring such promises in the sentencing process, the Court must be prepared to accept those promises at face value. If the promises are not kept, the Court must be able to intervene. This does not mean that the Court has a general jurisdiction to examine changed circumstances of any kind which have occurred subsequent to the imposition of sentence. As King CJ said, breaches of undertakings to co-operate constitute exceptional circumstances justifying the Court's intervention.
In my opinion, it is not enough that the Parole Board may be inclined to withhold release of the prisoner if he refuses to co-operate. Apart from anything else, the prisoner may not be sentenced to a period in custody or the custodial sentence might be such that the Parole Board has no jurisdiction over the prisoner. The principles discussed by Street CJ in R v Perez-Vargas (1986) 8 NSWLR 559 at 565, appear to support this view.
Broken promises of co-operation are a discrete and special area in which the Court must be able to reconsider the sentence if the quid pro quo offered by the prisoner is repudiated by him.
The Criminal Code, s400(3) provides the Court with "... full power to determine in accordance with this chapter any question necessary to be determined for the purpose of doing justice in any case before the Court". This is a very broad charter. The Code, s409, empowers the Court (inter alia) to receive evidence of any competent witness. On this basis we received, without objection, an affidavit of Ms Geason who was Crown counsel during the sentencing proceedings. In that affidavit, she deposed to the matters which occurred after 26 November 1996 and which I have referred to above.
Although not raised by counsel, it is appropriate that mention should be made of the Code, s409(2) which provides:
"In no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."
This provision is virtually identical to the concluding words of the Criminal Law Consolidation Act 1935 (SA), s359 which was considered by Olsson J in R v J (supra) at 448 - 449. The view of his Honour, which was endorsed by both other members of the Court was encapsulated in the following words (at 449 - 550):
"When the proviso to s 359 speaks of evidence that was not given at the trial it is, in my opinion, directing its attention to matters going to either the commission of the offence or the personal circumstances of the accused. It is not concerning itself with a situation in which the Crown is merely informing the Court that the person sentenced has failed to honour a specific undertaking given to the Court as an express basis upon which sentence is imposed.
It follows that this Court is entitled to review the sentences imposed upon the footing that, due to the conduct of the respondent, the essential rationale for the sentencing package decided upon by Duggan J has disappeared."
I am in respectful agreement with this opinion and, as a result, the Code, s409(2) offers no impediment to the Court's reception of evidence as to the relevant events since the imposition of sentence, followed by the review of and increase of that sentence if considered appropriate.
Counsel for the respondent submitted that there was no evidence that the learned sentencing judge gave any discount for the supposed future co-operation of the respondent. He also suggested that as no specific discount for co-operation had been announced by his Honour, it should be concluded that none had been given. He supported this contention by reference to what Hunt J said in R v Gallagher (1991) 23 NSWLR 220 at 234:
"I should emphasise that, whilst a judge cannot reasonably be expected to identify in his remarks on sentence every consideration which was taken into account in arriving at the particular sentence, the absence of any reference to at least the fact that a discount has been allowed for the prisoner's assistance to the authorities will in most cases inevitably lead to the conclusion on appeal that no such discount has been allowed."
In my opinion, this proposition goes too far. At all events, it is inapplicable in the present circumstances. I consider it to be quite clear that the learned sentencing judge accorded the respondent a substantial discount.
Counsel for the respondent submitted that the learned sentencing judge was careful to draw a distinction between that which the respondent had done by way of co-operation before appearing for sentence and that which he had promised to do in the future. He further submitted that his Honour only took into account that which the respondent had done in the past.
In my opinion, it is not only quite plain that his Honour accorded a substantial discount to the respondent in sentencing him, but also that he was influenced to take this course on the ground that the respondent had not only co-operated with the police, but would continue to co-operate with the prosecuting authorities by giving evidence against his co-offenders on their trial. The fact that the learned sentencing judge did not specify the quantum of the discount is scarcely surprising in view of the opinions expressed by this Court in Pavlic v R (1995) 5 Tas R 186.
Any suggestion that the respondent has been punished for his failure to co-operate with the prosecution by reason of the seven day sentence of imprisonment imposed in the Court of Petty Sessions, pursuant to the Justices Act, s43, is without foundation (see Parsons (1992) 74 A Crim R 172). In any event, it must be steadfastly borne in mind that this Court is not punishing the respondent for his broken promise. It is reviewing the original sentence imposed in reliance upon an erroneous assumption.
A sentence of five years' imprisonment imposed upon a hardened recidivist in respect of the crimes of which the respondent was convicted, is very low. Of itself, it reflects a substantial discount for co-operation, even taking account of the fact that his involvement in the armed robberies was as an accessory only. However, it has not been submitted by the appellant that the sentence was manifestly inadequate at the time that it was imposed. The basis of the appeal is that leniency was extended on a ground which has been shown to be without foundation, viz, the expectation that the respondent would aid in the administration of justice by testifying against his co-offenders. The respondent has not challenged the evidence given before this Court on affidavit by Ms Geason as to her dealings with him. The respondent has given no explanation for his refusal to testify during the proceedings against his co-offenders.
In these circumstances, the intervention of this Court is called for to ensure that a clear message is sent to the respondent and the criminal community in general, that if promised co-operation is not forthcoming after being relied on to mitigate punishment, the Court will correct the original sentence.
Giving full credit for his co-operation up until 11 April 1997, I think that the en globo sentence which is now called for upon the indictment is one of not less than six years' imprisonment.
I would allow the appeal, quash the sentence imposed and, in lieu thereof, impose a sentence of six years' imprisonment.
SLICER J
4 March 1998
The question raised by this application is whether a sentence of imprisonment ought be regarded as manifestly inadequate if, subsequent to its imposition, an anticipatory factor accepted as mitigatory does not occur. The respondent, who had been sentenced on the basis that he would assist in the prosecution of co-offenders, declined to give evidence at a preliminary examination of witnesses held pursuant to the provisions of the Justices Act 1959, s69A.
Basis of Appeal
The ground of appeal states:
"That the sentence imposed was manifestly inadequate having regard to all the circumstances of the case those circumstances being that His Honour sentenced the Respondent upon the basis that he had undertaken to the Court to continue to co-operate with the Police and assist the prosecution of his co-offenders by giving evidence at their trial and he has since declined to continue that co-operation and refused to give evidence."
The respondent was sentenced to a term of imprisonment for five years following his plea of guilty on two counts of armed robbery and one count each of burglary and stealing. He was not the principal in any of the three crimes which occurred on separate occasions over four days. The respondent, when interviewed by police two days after the commission of last crime, co-operated with police, including the provision of the names of the other persons involved in the criminal conduct. In the course of the sentencing hearing, the Court was told by counsel for the prosecution:
"... it's certainly accepted by the Crown that the accused has been very co-operative with the police. And I can indicate that his co-operation - he's agreed to continue to co-operate and assist the Crown with the prosecution of the other two males who he says were involved. And for that reason, your Honour, I would ask, if it's at all possible, that he be certainly sentenced as soon as possible so that those matters are all resolved prior to him participating in any Crown proceedings."
Counsel for the respondent informed the Court that his client had spent the majority of time whilst on remand in protective custody, had been subjected to violence, threats and inducements offered to him and others in an attempt to dissuade him from giving evidence. Counsel further submitted that:
"... it has weighed on the prisoner's mind that because of the course he is adopting he potentially places his wife and child in an extremely difficult position. And he expects, at least, that those threats directed at him within prison will intensify once it becomes known what course he adopted today.
... I'd ask you to take into account his level of participation in both of the armed robberies and indeed as a primary offender in the burglary and stealing as he concedes. And particularly his level of co-operation up until this point and his future co-operation ... by way of giving evidence."
The plea concluded with a reference to the decision of this Court in Deane v R A51/1996.
It is clear that the learned sentencing judge took into account both past and intended co-operation in the determination of sentence. That co-operation was so regarded is apparent from the comments of the learned sentencing judge when he stated:
"He was co-operative with the police, confessing to all crimes and naming the other offenders. He has stated that he will continue to co-operate and assist the prosecution of the other offenders, presumably by giving evidence. Although there is no suggestion that he has shown any remorse for his participation in these crimes, the court ought to have regard to his co-operation and pleas of guilty. Regard is also had to what his counsel said concerning the risk he has faced and will continue to face as a result of his co-operation.
All these matters must be taken into account in his favour. ...
The sentence which will be imposed has been arrived at of course after having particular regard to the prisoner's low level of participation in the armed robberies and to his co-operation and pleas of guilty."
The sentence reflected both the public utility of the intended giving of evidence and the risk to which the respondent would be exposed to by that co-operation.
Following the imposition of sentence on 26 November 1996, the respondent was interviewed in prison by a legal officer with the Director of Public Prosecutions on 13 February 1997. He wrote on a notepad the message:
"Just call me up and you'll [sic] won't be disapointed [sic]",
to which the legal adviser noted:
"If that's the case, I would need to speak with you prior to court (he nodded).
Do you still have a copy of all the statements, transcripts, etc (he nodded)."
On 11 April 1997, the respondent appeared as a witness to be examined in proceedings pursuant to the Justices Act 1959, s69A, concerning a person previously named by the respondent. He refused to take an oath or affirmation and stated that he would not give evidence. He was afforded legal advice and on the resumption of the hearing and in the presence of his counsel stated to the court:
"I am fully aware of the consequences, Your Honour and won't give evidence."
He declined an invitation to offer any explanation or excuse for refusing to give evidence.
The respondent received the significant benefit of a mitigating matter which did not eventuate. The issue is whether an appellate court has, absent statutory power, capacity to take into account an event occurring after sentence which had been regarded as impacting on the determination of sentence.
Jurisdiction or Evidence
The commencing point is whether an appellate court may take into account conduct or events occurring after the imposition of sanction in determining whether there should be review or variation of sentence. The ground of appeal is that the sentence was manifestly inadequate, such involving the question of whether an appellate court is dependent on jurisdiction, or whether the exercise of jurisdiction is permitted by the reception of fresh evidence.
Logic does not afford easy answer. Ordinarily, the suspension of all or a portion of the sentence affords a sentencing tribunal power to ensure future compliance with conditions or events. But such is neither practicable nor morally defensible in a case where a person is to give evidence against a co-offender. The postponement or suspension of a sentence on condition until the assessment of the quality of evidence, is indefensible in any consideration of the sentence of a prisoner or the subsequent trial of a claimed co-offender. Yet, to permit a sentencing methodology which provides mitigation for a claimed intention easily renounced not to be subject to review would be to affront both common sense and community confidence in that judicial process. Neither should failure to live up to a claimed intention such as rehabilitation or abstinence afford review of the sentence based on acceptance of that expression of intent or desire. Relevant to the issue is the long-standing doctrine that the judicial system ought remain responsible for the development of principles of sanction and the application of those principles to particular cases. That doctrine does not supplant the supremacy of Parliament, but is designed to afford flexibility in the determination of sanctions appropriate to a particular circumstance. Nevertheless, it has been necessary to provide a range of options available to judicial tribunals in the treatment of offenders (eg, Probation of Offenders Act 1973). In Australia, two jurisdictions have addressed the issue by means of legislative enactment. The Commonwealth has enacted the Crimes Act 1914, s21E(2), which affords power of review against reductions in sentence where the prisoner subsequently fails to comply with an earlier commitment to co-operate with authority. In New South Wales, the question of "ongoing assistance" was considered by the Court of Appeal in R v Perez-Vargas (1987) 8 NSWLR 559. The court acknowledged three relevant factors warranting mitigation, namely:
_ pragmatism in the value of informers;
_ hardship of custody under protection occasioned by an act of informing;
_ contemplation of future assistance.
The court recognised the efficacy of affording mitigation to the first two factors. The social utility of rewarding informers has long been recognised (Pavlic vR (1995) 5 Tas R, R v James and Sharman (1913) 9 Cr App R 142). Recognition of hardship of protective custody was acknowledged as a consequence of an event which had already occurred (that is, the giving of evidence), rather than one which was contingent. In relation to the factor of contemplation, the court paid regard to the responsibility of the executive. Street CJ at 565 stated:
"The criticism made of that approach on behalf of the appellant Stevens by Mr Larbalestier QC is that his Honour, whilst recognising the validity of allowing an element of leniency for the rendering of assistance, nevertheless has withheld it in contemplation that it may be proffered in due course by the Executive Branch of Government. That criticism, in my view, is well founded. The principles of sentencing establish plainly that providing assistance is a matter which is properly to be weighed as an element and as attracting leniency in the determination of sentence. Ordinarily this is the right and proper way in which it should be weighed. It is not, in my view, appropriate for a sentencing judge to fail to give significance to that when determining sentence upon the basis that it will or may later be recognised by the executive. The matter is one which, in my view, is required to be taken into account and given significance by the sentencing judge. This is not to say, of course, that the executive government necessarily has its hands tied by whatever weight and significance a sentencing judge may have given to the degree of information. It is an understood fact within criminal courts that quite frequently the full measure of the assistance cannot be placed before a sentencing judge. There may be ongoing assistance manifested or provided by the prisoner after he has been sentenced ¾ this is particularly appropriate for recognition by a subsequent grant of executive clemency. The hardships of custody may for one reason or another come to be recognised as having escalated to a degree that attracts Executive Government intervention. Those matters of ongoing consideration and prospective intervention by the Executive Government are not in any sense such as to take the place of the sentencing judge giving such weight as he may think fit to such information as is placed before him regarding the degree of assistance provided prior to the sentencing hearing and to his own awareness of the hardships of protective custody. It is erroneous for a sentencing judge to place the matter aside entirely as appears to have occurred in this case."
Following the decision in Perez-Vargas (supra), the New South Wales Parliament enacted the Criminal Appeal Act 1912, s5DA, in terms similar to the Commonwealth legislation. The relevant section provides:
"(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit."
That provision was in turn considered by the Court of Appeal in R v Walters and Watkins (1994) 33 NSWLR 612. Implicit in the decision is the question of whether the power of an appellate court could only be derived from legislation. The power afforded could be more appropriately described as one of variance rather than appellate in nature. As Gleeson CJ observed at 615:
"As I mentioned earlier, the Crown does not invite us to undertake any comprehensive review of the sentences that were imposed. In effect it invites us to adjust the sentences for the purpose of rectifying the situation that has arisen in relation to the assistance offered to the authorities.",
and in applying the legislative provisions stated at 615 - 616:
"One of the difficulties associated with this argument is that from one point of view it appears to treat s 5DA as a provision that empowers the Court to embark upon an exercise of a punitive nature. That is not the true function of s 5DA. Section 5DA, which has a counterpart in Commonwealth legislation, was enacted to overcome a problem which was becoming more common in the administration of criminal justice with the increased frequency of applications by offenders for discounts in sentencing by reason of their willingness to co-operate with authorities by, for example, giving evidence against co-offenders. The principle applicable to the granting of such discounts are discussed, or example, in R v Gallagher (1991) 23 NSWLR 220.
It is not unusual for an offender during the course of sentencing proceedings to undertake to assist law enforcement authorities, and to seek and obtain a reduction in sentence on that account. Problems then arise when the undertaking is not complied with. It may be impossible for the Crown to point to any error on the part of the sentencing judge and in that way to have the sentence reviewed by the Court of Criminal Appeal. Prosecutions for perjury or for creating a public mischief are usually a clumsy and ineffectual means of dealing with this kind of problem. There may be any number of reasons why such an undertaking, once given, would not be complied with, and in a given case it may be impossible to ascertain with any degree of confidence the true reason. For example, an offender may claim to have been threatened by a co-offender and to have decided on that account not to have given evidence. For all we know something like that may have happened in the present case. We have no evidence before us from either of the respondents.
Again, it may be asserted, as it is in the present case, that the original undertaking was given in bad faith for the reason that the evidence that it was suggested could be given would have been false evidence."
There can be little doubt that a sentence imposed as a result of a fraudulent plea is susceptible to review. But the occurrence (or non-occurrence) of a subsequent event may depend on factors not in existence or honest contemplation at the time of imposition of sentence. In R v O'Shea (1982) 31 SASR 129, Wells J (with whom Walters and Matheson JJ agreed) took the view that the court is functus officio in relation to events occurring after the imposition of sentence. In dealing with a claim that the psychological condition of a sex offender had altered since incarceration, he said, at 145:
"It seems to me that once the sentencing judge satisfies himself that the order should be made, and makes it, the responsibility for the offender's future passes to the Executive - in short, the Court is, generally speaking, functus officio. Provided the sentencing judge is reasonably satisfied that the Authorities charged with the Executive responsibility of administering s 77a have the facilities for inquiring into and treating the offender's condition, and the circumstances are such that there is then no ground for supposing that those facilities will be withheld, he is entitled and bound to proceed on the assumption that the Executive will do its duty. If it should turn out that the doctors, psychiatrists, and other specialists, cannot diagnose or improve the offender's condition, the case does not then return to the jurisdiction of the Court. The legislation says as much, because the Governor could not then be satisfied that the offender is fit to be at liberty, unless he recovers normality, and his capacity to control his sexual instincts, suo motu or under influences other than medical, or psychiatric. If a situation develops that is truly unfair to an offender and that reflects discredit - at all events allegedly so - on the Executive, he is not without remedy. He can petition the Governor direct; he can initiate the procedures established under s 369 of the Criminal Law Consolidation Act. It may be that mandamus would lie against the Governor and the Parole Board to have them discharge their responsibilities under sub-ss (7a) and (7b).
What is, to my mind, certain is that he cannot institute an appeal against sentence simply because his and the Court's justifiable expectations have been disappointed."
In a subsequent decision (R v Smith (1987) 44 SASR 587), the same court, differently constituted, reached a similar conclusion although it based its reasoning on the principles pertaining to the principles of fresh evidence rather than jurisdiction. The court held an appellate court was permitted to receive evidence as to facts which existed at the date of sentence but which were not made known or fully explained to the Tribunal. As King CJ said at 588:
"The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning's case at 485. The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."
That approach enabled the court to give consideration to the deterioration of health of the prisoners, although King CJ acknowledged that there was some contradiction with principle when he continued at 588 - 589:
"While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the appellant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the appellant's state of health had been when he was sentenced."
However, in R v J (1992) 64 A Crim R 441, King CJ had little difficulty in receiving evidence of the subsequent non-co-operation of an offender who had been sentenced on the basis of contemplative assistance. His Honour did not refer to the previous decisions of Smith and O'Shea (supra), he considered at 442 that the power of review was dependent on the wrongful basis of the original imposition of sentence in that:
"It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender's failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence."
In the absence of statutory power afforded by the Commonwealth and New South Wales parliaments, it would appear that the power of review is dependent not upon jurisdiction, but on the reception of evidence. In Postiglione v R (unreported, 24 July 1997) the High Court expressed no difficulty with respect to jurisdiction in a case involving a second appeal against sentence where the final sentence of a co-offender was not known until after the original appeal had been determined. The Criminal Code, s402(4) affords wide power of review in providing:
"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Such provision affords wide power of review. The exercise of power depends upon the reception and effect to be given to further evidence. The distinction between evidence which provides more information about a factor considered by the sentencing tribunal and events occurring after sentence has become difficult to discern. In some cases, courts have received evidence on the basis that subsequent circumstances would make the term of imprisonment more "burdensome" than contemplated at the time of imposition (R v Bailey (1988) 35 A Crim R 458, R v Eliasen (1991) 53 A Crim R 391) both cases involving the diagnosis of Aids, Morgan v R (1996) 87 A Crim R 104 (recurrence of cancer); whilst in others on the basis that the relevant matter was not made known (or only briefly touched upon) to the sentencing tribunal (Many v R (1990) 51 A Crim R 54). However, as the court in the latter case acknowledged at 61 - 62, the distinction is flexible:
"Be that as it may, whilst we are not satisfied that this material is strictly 'fresh' evidence, it is not a universal and inflexible requirement that it be so: Gallagher (1986) 160 CLR 392 at 395; 20 A Crim R 244 at 246, per Gibbs CJ. We are of the view that in the unusual and somewhat complex circumstances of this matter it is appropriate to admit this material in the interests of justice. In doing so the Court disregards entirely those facts occurring subsequently to the time of sentencing. They should not be taken into account by this Court on an appeal against sentence. As noted by Street CJ in Munday [1981] 2 NSWLR 177 at 178:
'The review of the sentence in the light of subsequent events is the proper province of the Executive Government and not of an Appeal Court.'"
In taking that approach, the court disagreed with the earlier decision of the majority of the Court of Criminal Appeal in R v Goodwin (1990) 51 A Crim R 328. A contrary view was taken by Brooking JA in R v Babic (unreported, 27 May 1997, Victorian Court of Appeal, at 3), since in his view:
"Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible."
His Honour attempted to reconcile the previous decision of the court in R v Eliasen (supra) with his view by observing that Eliasen was concerned with the disease of Aids where sentence had been passed before the results of testing were known, whereas in Babic the event giving rise to illness had occurred subsequent to incarceration.
I would adopt a wider approach. Narrow distinctions may sometimes produce a tortuous approach to the particular circumstances. An apposite approach is whether the evidence is relevant to the original sentencing process as of the time of such process. An event occurring after the date of sentence ought not be received unless the event is simply a manifestation of some conditional circumstance latent at the time of sentence. Thus discovery of the medical condition which had been in existence at the time of sentence but not diagnosed would be permitted because if diagnosis had been effected, the fact of the disease or condition would have been relevant to the sentencing process. But the gradual onset of disease or the development of disability would not be relevant. A promise of co-operation is relevant to the original sentencing process and its manifestation or negation is relevant to any review. In the circumstances of this case, knowledge that there would be no co-operation was relevant to the learned sentencing judge. That knowledge, subsequently discovered, may be used to determine whether the sentence actually imposed was excessive or inadequate. The approach taken is not intended to run counter to that taken in the court in Plumstead v R 157/1997, where the court received evidence of the deaths of the wife and children of the appellant which had occurred after the date of sentence, but did not regard the matter as warranting intervention. However, in the circumstances of this case, it is not necessary to give detailed consideration to the matters considered by this Court in Plumstead (supra).
Whether Sentence Manifestly Inadequate
The question becomes whether, in the light of subsequent non-co-operation, the sentence can be regarded as inadequate. The test is not whether the sentence should have been more had the learned sentencing judge been told that there would be no further co-operation, but whether, absent the mitigating factor, it could be said to be manifestly inadequate. I believe that the sentence ought to have been greater. The offender, aged 33, had an extensive record of prior convictions, including ninety-three for burglary and ninety-eight for stealing committed over some thirteen years. The crimes for which he was sentenced were committed during the period of the operation of a suspended sentence. A shotgun was used by the principal for both robberies and the sum of $6,400 stolen as a consequence of the burglary. Although the appellant was not sentenced as the principal in the armed robbery, his knowledge of the intended use of a shotgun, at least at the time of the second robbery, renders his conduct criminally culpable to a very high degree. The use of a firearm in the course of criminal conduct requires strong condemnation on all those involved. The appellant's participation in two acts of armed robbery and a further act of planned burglary warrant greater sanction than that ordinarily applied to a single occurrence. The sentence was not manifestly inadequate in the light of the circumstances as made known to the learned sentencing judge, but absent the significant mitigating factor of intended co-operation, it becomes so. In my opinion, a sentence of six years' imprisonment is the appropriate sanction.
I would allow the appeal, quash the sentence imposed, and in lieu thereof impose a sentence of six years' imprisonment.
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