R v W, TB (No 2) - [2006] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, TB (NO 2)
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
10 March 2006
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 - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
Application by Director of Public Prosecutions for leave to appeal against sentence – application granted and reasons delivered in R v W, TB [2006] SASC 62 – immediately before reasons delivered, Court informed that respondent in custody – Court subsequently advised of events since sentence passed by District Court judge – effect of events on proposed orders considered – proposed orders made.
Young Offenders Act 1993 s 36, referred to.
R v W, TB [2006] SASC 62, considered.

R v W, TB (NO 2)
[2006] SASC 72
Court of Criminal Appeal: Besanko, Anderson and Layton JJ

BESANKO J I refer to my reasons for judgment (R v W, TB [2006] SASC 62), which were published on 8 March 2006.
The parties were notified that judgment would be delivered on 8 March 2006. The Director of Public Prosecutions appeared at that time, but there was no appearance by the respondent’s counsel. Immediately before the Court sat on 8 March 2006, the Court was informed that the respondent was in custody, and would be appearing from custody at the hearing. The respondent was not in custody as a result of the orders of the judge of the District Court, and he was not in court when the application for leave to appeal was heard on 16 December 2005.
The Director was unable to assist the Court as to the reasons why the respondent was in custody.
In the circumstances, the Court announced its proposed orders, but refrained from making those orders. The Court adjourned further consideration of the application to 9 March 2006.
The Court has now been advised of the following:
1.It is alleged that the respondent committed three offences after he was sentenced by the judge of the District Court and had attained the age of majority, namely, an offence of being unlawfully on premises, and two groups of offences involving breaches of bail agreements. He has not been tried in relation to those matters. The offences were alleged to have been committed in November and December 2005.
2.The respondent has been in custody as a result of being arrested and denied bail in relation to a number of the above matters from 29 December 2005 to date.
3.That the respondent is not due to appear in Court in these matters until 3 April 2006.
During the course of the hearing on 16 December 2005, I asked each party whether this Court should re-sentence the respondent if the question of re-sentencing arose. Each party said that the Court should re-sentence the respondent.
After the hearing the Court invited the parties to make submissions as to whether, on the assumption that a sentence of imprisonment was imposed and not suspended, an order should be made under s 36(1) or (2) of the Young Offenders Act 1993 (“YOA”). As I said in my earlier reasons for judgment, both parties were content to make submissions in writing and neither sought an opportunity to make oral submissions. The Director’s further written submissions are dated 24 February 2006 and the respondent’s further written submissions are dated 27 February 2006. Neither party referred to the alleged further offending, or to the fact that the respondent was in custody, in their further written submissions.
The Court should have been informed of events since the sentence was passed by the judge of the District Court. The events which have occurred since that date may be relevant to the sentence to be imposed and the question whether a direction to the contrary should be made under s 36(1) of the YOA. Counsel for the respondent was unable to offer any explanation as to why the events since the date the sentence was passed were not brought to the attention of the Court. Counsel for the Director said that the Director was unaware of the relevant events.
I would wish to emphasise that it is of cardinal importance that parties bring to the attention of a sentencing court all matters which may be relevant to the sentence to be passed of which they are aware and that obligation includes an obligation to make reasonable inquiries.
In terms of the orders which I propose as set out in my earlier reasons for judgment, the Director did not argue that the events since sentence was passed by the judge of the District Court were relevant to the sentence which I propose. I agree. Nor did the Director suggest that events since the sentence was passed were relevant to the question whether a direction to the contrary should be made under s 36(1) of the YOA. In other words, although the Director had originally submitted that the respondent should serve his sentence in prison, he did not submit that the events which have now come to light were sufficient to alter the conclusion which I had expressed in [82] of my earlier reasons for judgment, to the effect that I did not think it appropriate to make an order that the respondent serve his sentence in a prison. I think that approach by the Director is correct and there is no sufficient reason to change my earlier conclusion.
In those circumstances, it is unnecessary for me to alter the orders which I proposed in my earlier reasons, or those reasons.
ANDERSON J I have read the reasons of Besanko J and Layton J in R v W, TB (No 2). I agree with the orders proposed by Besanko J in his reasons in R v W, TB [2006] SASC 62 published on 8 March 2006. I also endorse the comments of both Besanko J and Layton J in relation to the obligations of parties before an appellate court when re-sentencing is an option.
LAYTON J I refer to my reasons for judgment published on 8 March 2006.
On 8 March 2006 when each of the Judges of this Court pronounced that the appeal should be allowed and each gave their conclusions on the proposed sentence upon re-sentencing, the Court became aware of new facts, as set out in the reasons of Besanko J.
Whilst this new material refers to allegations of criminal conduct and not convictions, they are still important for this Court in relation to re-sentencing because of the period in which the respondent has been in custody. Already this is some two months, with the likelihood of at least a further month, absent a successful bail application. The fact of the respondent having been in custody and continuing in custody on other matters, is highly relevant to the issue of whether there should be a suspension of sentence upon a re-sentencing process.
Prior to having this new information, my reasons for concluding that there was “good reason” to suspend the sentence of imprisonment was significantly dependent upon the respondent continuing to remain in the community with the continuation of the rehabilitation already commenced. The relevant factors of rehabilitation against a background of a history of previous offending included that:
-He currently lived with his de facto partner and child.[106]
-He had entered a Community Development Employment Program which should not be unnecessarily disrupted. [107]
-He had a continuing relationship with his aunty whilst he was living at Goolwa, which was important because of his Aboriginality and family relationships. [107-108]
-There has been no offending since 2004 to impede his continuing rehabilitation.
-He had already made progress and the importance of rehabilitation continuing. I particularly highlighted these factors when concluding that “good reason” exists for the suspension of the respondent’s sentence. [111]
This new material has significantly altered the basis for my decision to give a suspension. Putting aside as I do, the fact that the respondent has neither pleaded guilty to nor has he been found guilty of the later offences, the fact of him having been in custody in these circumstances for this length of time has already disrupted the continuity of rehabilitation, being my prime focus for suspending sentence. I am no longer satisfied that good reason exists to suspend the sentence of imprisonment, especially when viewed in the overall context of the very serious circumstances of the offending for which he is being re-sentenced.
This case raises important issues with regard to the obligation of parties before an appellate Court where re-sentencing may be required. I agree with the strong observations made by Besanko J on this point. In this case the new information which was not placed before the Court has had a determining impact on the sentence which I consider appropriate.
I therefore agree with the orders proposed by Besanko J in his reasons for judgment published on 8 March 2006, as well as his approach in these reasons.