R v Sutorius

[2001] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 346 of 2000

THE QUEEN

v.

NICOLE MARIE SUTORIUS

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JUDGES:	PHILLIPS, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2001
DATE OF JUDGMENT:	9 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 70

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Sentencing – Suspended sentence restored – Whether “exceptional circumstances” existed – Further evidence of threat to offender while in gaol – Threat similar to previous threat outside gaol – Further evidence inadmissible – Leave to appeal refused – Sentencing Act 1999 s.31(5A).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	Solicitor for Public Prosecutions
For the Applicant	Mr. M.C. Kowalski	Leanne Warren & Associates

PHILLIPS, J.A.:

1. This is an application for leave to appeal against orders made in the County Court on 30 October 1990, when a suspended sentence imposed on 27 January 1999 was restored and ordered to be served.  The application came before me on 16 March last and I then referred it over to a Bench of three with a view to the application's being considered by the Court which, if leave was granted, would then proceed to hear the appeal.  I took that course because it was indicated to me that the grounds of appeal were to be amended, substituting for the existing grounds two new grounds which turned solely on the admission of fresh evidence.  On 16 March I was unclear whether the evidence relied upon was admissible.  Since then the grounds of appeal have been amended as foreshadowed and the application for leave to appeal now turns solely on the new grounds, which in turn depend upon the admission of fresh evidence.

1. Having heard the argument put by Mr Kowalski, who said as much as could be put in support of this application, I am satisfied that the further evidence is not admissible. It does not advance the case of the applicant that there were "exceptional circumstances" within the meaning of s.31(5A) of the Sentencing Act 1991. I do not repeat what I said on 16 March when the problem thrown up by this application was identified. What was said then was transcribed and a copy of that transcript is on file.

1. Mr Kowalski relied in particular upon a certain passage in the judge's sentencing remarks on 30 October 2000, at the conclusion of which his Honour expressed himself as of the view that exceptional circumstances within the meaning of s.31(5A) had not been established, in consequence of which he then restored the suspended sentence and ordered that it be served. The particular passage relied upon is at the top of p.32 of the sentencing remarks. It reads as follows:

“I am unable, on the evidence before the court, to be satisfied that the offender is terrified or, indeed, apprehensive, of being in the Correctional Centre to the extent submitted, or that there is a grave risk of assault by or instigated by [K], or that the offender is of the belief that there is such a grave risk, should she be imprisoned at the Correctional Centre, so as to constitute ‘exceptional circumstances’ within the sub-section.”  [My emphasis]

Mr Kowalski submitted that the evidence upon which he now relied served to establish the facts of which the judge said there that he was not satisfied.

1. The evidence now relied upon is an affidavit of Susan Wilkes of 15 March 2001, a copy of which is annexed to the order amending the grounds of appeal.  It recounts the receipt by the applicant (it is not said where she was at the time save that she was in custody) of a letter, a copy of which is exhibited to the affidavit.  Counsel submitted that the letter contained a threat to the applicant and also to one “Eddie”, that being the familiar name of the applicant's partner, who was giving evidence in support of an unrelated prosecution.  The letter says in part “you will be got, so will Eddie”.  The threat was said to be related to the latter’s giving evidence because the letter had been signed "The Rat and Dog Exterminator".

1. It must be said that this threat is not unlike one made earlier to the applicant while the applicant was at home and before she was gaoled. As described in the plea in mitigation on 23 October 2000 the applicant and her partner returned home one day to find a dead rat strung up on the gate outside the house, and a letter demanding money. Counsel submitted that the threat implicit in that could be linked to that in the letter now exhibited to Ms Wilkes’ affidavit and that may be so. But, if so, that would seem to demonstrate that the applicant is at risk, even outside gaol. Such is unlikely to constitute exceptional circumstances within s.31(5A). Be that as it may, in my opinion the making of the threat demonstrated by the affidavit of Susan Wilkes is not sufficient, either taken by itself or in conjunction with the other available circumstances, to establish the matters of which the judge said he was not satisfied when sentencing on 30 October.

1. As I said at the outset, in my opinion this further evidence does not advance the case of the applicant.  The grounds of the application for leave to appeal now depend upon its admission.  The evidence should not be admitted.  Accordingly the application should be refused.

BATT, J.A.:

1. I agree.

CHERNOV, J.A.:

1. I also agree.

PHILLIPS, J.A.:

1. The order of the Court is:

Application dismissed.

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