Russell v Mills
[2014] ACTSC 343
•4 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Russell v Mills |
Citation: | [2014] ACTSC 343 |
Hearing Date: | 23 October 2014 |
DecisionDates: | 14 November 2014; 4 December 2014 |
Before: | Penfold J |
Decision: | 14 November 2014: 1. The appeal is dismissed and the sentence is confirmed. 2. Order 1 is stayed until 4 December 2014. 4 December 2014: 1. Order 1 made on 14 November 2014 is stayed until 10 December 2014. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Admission of Fresh Evidence – appeal against order that five months of ten month sentence of imprisonment be served as periodic detention – application to admit new mental health assessment and further information about appellant’s massage business – new mental health assessment unlikely to provide new relevant information having regard to material available to sentencing Magistrate – information establishing that appellant’s massage business was busiest on Friday nights and Saturdays might cast new light on circumstances at time of Magistrates Court sentencing – evidence might justify replacement of periodic detention order with community service order – appellant given time to provide relevant business records – no business records provided – appellant indicated unwillingness to continue appeal – appeal dismissed. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 5137, 5191(2)(b), 5193 Magistrates Court Act 1930 (ACT), ss 214, 214(4) |
Cases Cited: | Grooms v Toohey [2012] ACTSC 28 R v Eliason (1991) 53 A Crim R 391 R v WEF [1998] 2 VR 385 |
Parties: | Michelle Victoria Russell (Appellant) Emma Mills (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 92 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 8 November 2013 Case Title: Emma Mills and Michelle Russell Court File Numbers: CC12/7105; CC12/7108; CC12/7110; CC12/3684 |
Introduction
On 8 November 2013, Michelle Russell was convicted, on pleas of guilty, on one count of theft and three counts of obtaining property by deception. She was sentenced in the Magistrates Court to a total of 10 months imprisonment, five months of which was to be served by periodic detention and the remaining five months of which was to be suspended subject to a good behaviour order.
Ms Russell appealed against the sentences. On 4 December 2014 her appeal was dismissed. These are my reasons for dismissing the appeal, and for various orders made before and after dismissing the appeal.
Background
The prosecution arose out of Ms Russell’s dealings with money the property of Wanniassa Preschool Parents Association while she was the treasurer of that body during 2011. First, in August 2011, Ms Russell collected an amount of $2,250 raised through a fundraising barbecue conducted by volunteer members of the Association, but instead of banking that money in the Association’s account she stole it, by keeping it and using it for her own purposes. Secondly, in September 2011, Ms Russell persuaded another signatory to the Association’s bank account to sign three blank cheques for her to hold in case anything needed to be paid by the Association in an emergency. Ms Russell then used the three cheques to remove funds totalling $3,900 from the Association’s bank account.
Sentencing in the Magistrates Court
The pre-sentence report (dated 18 April 2013) provided the following information about relevant aspects of Ms Russell’s background:
Ms. Russell stated she has recently sought assistance from a psychologist to address her mental health issues. She stated she has taken anti depressants and sleeping tablets obtained from her GP in the past. Ms. Russell stated she has anxiety and is also a compulsive liar which she believes stems from being sexually and verbally abused by her uncle. Ms. Russell's psychologist confirmed she has attended three out of six scheduled appointments.
The psychologist reported Ms. Russell suffers from depression coupled with anxiety and stress and she felt there were some underlying personality issues. The psychologist commented she was still assessing Ms. Russell and any work she had done with her was crisis driven dealing with whatever was the current crisis. She said Ms. Russell may benefit from long term therapy; however, Ms. Russell currently has difficulty with long term planning and felt she was not fully committed.
Two attempts to prepare updated pre-sentence reports were unsuccessful because of Ms Russell’s lack of co-operation. On a third attempt, Corrective Services reported:
ACT Corrective Service case notes have indicated that Ms Russell suffers from anxiety and depression however it was not until the interview on 23 October 2013 that she provided evidence from her general practitioner (GP) to that effect. Her GP has prescribed anti depressants for her and sees her on a weekly basis to monitor her depression. Additionally she has now committed to a Mental Health Plan and has re-engaged with a psychologist on a weekly basis. This information has been verified.
Also before the sentencing Magistrate was a Forensic Psychiatric Report prepared for the Court by Dr Anthony Barker. Dr Barker said:
Ms Russell appears to have long-standing anxiety symptoms and she would benefit from evidence based psychological therapy (e.g., cognitive behavioural therapy) to assist her with managing her distress. Medication may also provide some degree of benefit although the most effective means of treatment for anxiety conditions is usually obtained via psychological input. In addition, Ms Russell reports problematic use of promethazine and she may benefit from Drug and Alcohol Counselling with a counsellor nominated by Corrective Services. The Court may also consider legal orders that mandate involvement in drug and alcohol treatment.
The above recommendations may be enacted in the community or in custody depending on the Honourable Court's disposition.
On sentence, the Magistrate took account of:
(a)the abuse of trust involved in Ms Russell’s actions;
(b)the amount of money taken, noting that it had been raised by unpaid work by parents and other volunteers and that it was a not inconsiderable sum for the Association, but also that it was a relatively small amount having regard to the fact that the offences concerned would also apply to thefts or deceptive obtaining of millions of dollars;
(c)that Ms Russell’s pleas of guilty had come on her seventh appearance before the court;
(d)that Ms Russell had a prior conviction for a Commonwealth offence of making a false document, which was committed shortly before the current offences but not dealt with in court until after these offences (although it seems that Ms Russell had appeared in court in relation to the earlier offence before committing the current offences);
(e)a victim impact statement provided on behalf of the Association, which included the claim that, at the point when that statement was prepared in November 2012, Ms Russell had not repaid any of the money nor offered any apology or explanation for her actions;
(f)the subsequent repayment to the Association of a total of $600 in two stages, each payment being made shortly before a scheduled court appearance;
(g)pre-sentence report advice about Ms Russell’s personal and family circumstances;
(h)a forensic mental health report prepared in September 2013;
(i)the absence of any evidence about the likely effect of any kind of imprisonment on any mental health condition from which Ms Russell was suffering;
(j)expressions of remorse apparently made by Ms Russell during the sentencing hearing or in a letter to the Association, and the absence of any such expressions of remorse, or attempts at repayment, for a considerable time after the offences were committed;
(k)evidence about Ms Russell’s financial position, being:
(i)that Ms Russell was the sole provider for her family, her current partner (who is the father of her two youngest children, who were then living with her) having been unemployed since 2010 and apparently having no interest either in working or in seeking Centrelink support; and
(ii)that Ms Russell’s work as a self-employed masseuse would be affected by periodic detention because some work was done on Friday nights and Saturday mornings;
while noting the absence of any evidence about how much work was likely to be done at those times or the likely effect on Ms Russell’s earnings;
(l)that evidence of good character was of limited value given the circumstances of Ms Russell’s offending.
The appeal
Ms Russell’s appeal against her sentences, was specifically against the imposition of periodic detention. She prepared the notice of appeal herself, setting out the following grounds:
1.Magistrate failed to acknowledge family/financial situation and PD [effects].
2.Magistrate gave a manifestly excessive sentence.
3.Sentence was set down without accurate or independent advice on my mental health.
4.Magistrate failed to consider health limitations which prevent me from completing community service component of [periodic detention].
In her notice of appeal, Ms Russell indicated an intention to seek the admission of further evidence on appeal, being an “independent mental health report to dispute government report” and “specific documentation regarding physical health and family situation”.
No such evidence, with or without an affidavit required by r 5193 of the Court Procedures Rules 2006 (ACT), was filed before the matter came on for hearing. Nor did Ms Russell file any written summary of argument as required by r 5137 before the listed hearing.
The requirement for the appellant to provide a transcript of the Magistrates Court hearing had been waived, but Ms Russell did not before the scheduled hearing collect the transcript copy made available to her by the court. She later explained this by saying that her husband did not want the document in the house.
The appeal notice was lodged three days after Ms Russell was sentenced, but after what should have been her first weekend of period detention, which was due to start on the day on which she was sentenced. I understand that she did not attend for periodic detention on that weekend, and that breach proceedings were instituted but were not continued after the appeal was begun.
The appeal has taken a considerable time to be ready for hearing. Since the notice of appeal was lodged on 12 November 2013, it has been mentioned in the Supreme Court, mainly before the Deputy Registrar but in one case before the Chief Justice, on a total of 10 occasions:
(a)3 February 2014;
(b)27 February 2014;
(c)20 March 2014;
(d)3 April 2014;
(e)17 April 2014;
(f)8 May 2014;
(g)29 May 2014;
(h)12 June 2014;
(i)26 June 2014 (twice).
On seven of those occasions Ms Russell did not appear; she provided explanations (one of which was supported by a doctor’s certificate) for five of the failures to appear.
I note at this point that none of the defence exhibits relied on in the Magistrates Court have been made available to me. None of them was included in the material provided by the Magistrates Court, and I assume that they were returned to the appellant at some point (perhaps after the sentence was finalised). Possibly because of Ms Russell’s erratic appearances at appeal listing mentions, no order was ever made for them to be provided.
The appeal hearing
13 October 2014
On 13 October 2014, the appeal was called on for hearing. Ms Russell did not appear. At almost exactly the point at which the hearing should have begun, a staff member in the Court’s Registry received a phone call from Ms Russell, as follows:
Just had a phone call from Michelle Russell, who is before Justice Penfold at 2.15, to say that she will not be attending today as she is in the car park very distressed and has vomited all over herself.
The respondent made an application to revive a previously filed application to strike out the appeal under r 5191(2)(b) of the Court Procedures Rules, on the ground that the appellant:
otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.
I declined to strike out the appeal under r 5191(2)(b), noting:
(a)that the last step in the proceeding, which had been taken more than three months earlier, was to list the appeal for hearing on 13 October 2014, that there were apparently no orders requiring Ms Russell to do anything during the intervening period, and that therefore it could not be said that she had not prosecuted her appeal with appropriate effort, except by failing to appear on the hearing day; and
(b)that since an explanation, albeit unsubstantiated, had been provided to the Court for Ms Russell’s failure to appear, it did not seem to be an appropriate exercise of my discretion to strike out the appeal by reference to that non-appearance.
I then re-listed the matter for hearing on 23 October 2014 at 11:30am. I ordered that the appellant be notified:
(a)by letter to the last address known to the Court; and
(b)by text message to the mobile telephone number provided to the officer of the court registry who took the phone call mentioned at [16] above;
that:
(c)the appeal would be heard on 23 October 2014 at 11:30am, whether or not Ms Russell appeared;
(d)that if she did not appear and the appeal was dismissed, Ms Russell would be immediately liable to serve the five months periodic detention and that failure to perform periodic detention might result in Ms Russell serving that five-month period in full-time detention, without further involvement of the court; and
(e)that if the appeal was dismissed in Ms Russell’s absence but she claimed to have a valid reason for not appearing, she would need to apply for the decision on appeal to be set aside, but that in the meantime the Magistrates Court decision, and in particular the requirement to perform periodic detention, would stand.
23 October 2014
On 23 October 2014 Ms Russell appeared for the hearing of the appeal. She sought leave to tender documents of the kind foreshadowed in her application to adduce fresh evidence, being:
(a)an independent forensic mental health assessment; and
(b)evidence about her financial position.
Forensic mental health assessment
Ms Russell explained that her husband had been unwilling to permit her to spend money obtaining further evidentiary material, the forensic mental health assessment in particular, until it became clear whether that material would be received in evidence. She had no particular explanation for her failure to pursue this question during any of the several occasions on which she had appeared in relation to the appeal in the 11 months after notice of the appeal was lodged.
The respondent pointed out that there had been an entirely adequate forensic mental health assessment prepared by Dr Anthony Barker (at [6] above) before the sentencing Magistrate, and that his Honour, while noting Dr Barker’s diagnoses including anxiety disorder and possible substance abuse disorder involving a sedating antihistamine, had recorded that there was no evidence that any of these conditions had affected Ms Russell at the time of the commission of the offence, or that any of them was relevant to the possible impact on her of any particular form of sentence.
Ms Russell said that she expected that a “proper mental health assessment”, conducted by a female practitioner to whom she would feel able to open up about her childhood sexual abuse, would establish that she suffered from depression. The respondent pointed out that Ms Russell had in the Magistrates Court tendered several letters about her mental health in general, all from male practitioners, and that a further assessment so long after the offences would be even less likely than the original report to be able to establish that any particular mental health condition of this kind was affecting Ms Russell at the time of the offences.
Having regard to the respondent’s submissions, to the sentencing Magistrate’s references to Ms Russell’s mental health including her anxiety disorder, and to the references to a diagnosis of depression made by a female psychologist and recorded in the pre-sentence report provided to the Magistrate (at [4] above), I indicated to Ms Russell that it seemed unlikely that a further mental health assessment would be useful in her appeal and accordingly unlikely that it would be admitted, and in the circumstances she should not waste money obtaining such a report.
Financial circumstances
As to the significance of her financial circumstances in relation to the sentencing, Ms Russell said that as things had turned out, about 75% of her income from her work as a masseuse was earned on Friday nights and Saturdays, and that a requirement to undertake periodic detention would accordingly deprive her of substantial income which, having regard to her partner’s failure to make any contribution to household expenses, would mean that she was unable to support her children.
This information, I considered, could fall into one of the categories of further evidence admissible under s 214 of the Magistrates Court Act 1930 (ACT), specifically, evidence admissible under s 214(4), which is as follows:
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
Evidence that 75% of the income from Ms Russell’s business was earned on Friday nights and Saturdays would have been admissible in her sentencing hearing.
At the time of the sentencing hearing, however, Ms Russell’s business was, apparently, only recently established. The significance of the Friday night and Saturday work was put to the sentencing Magistrate, but, as his Honour noted, no particulars were provided as to how much of the work was done at those times or the likely effect of a term of periodic detention on Ms Russell’s earnings. Ms Russell said that no further evidence was offered in the Magistrates Court because her solicitor did not ask her to provide any such evidence. It may be that, because the business records related to such a short period before the sentencing, no convincing evidence about the pattern of work in the business could have been put to his Honour in the Magistrates Court anyway, and it may be that this is why her solicitor did not ask for such information.
It seemed to me that, although evidence of the operations of the business since Ms Russell was sentenced consisted directly of evidence of events since sentencing, and would therefore appear to be inadmissible (see Grooms v Toohey [2012] ACTSC 28 at [37(c)(ii)]), it was in fact indirect evidence of the pattern of the operations of the business at the time of the sentencing. As noted, the pattern identified by Ms Russell was raised in the Magistrates Court but without evidence of business records establishing that pattern.
I considered that this evidence, analysed in that way, was “evidence of events occurring after sentence [that] can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence” (R v WEF [1998] 2 VR 385, Winneke P at 388-389, referring to R v Eliason (1991) 53 A Crim R 391 at 394). Winneke P referred at 389 to the explanation “that the basis for receiving the new evidence was to be found in demonstrating the true significance of facts in existence at the time of sentence”.
On that basis, I proposed to adjourn the matter to give Ms Russell an opportunity to tender copies of the following records relating to her business:
(a)her appointment book for the business;
(b)her receipt book showing receipts for payments to the business; and
(c)her 2013-2014 income tax return showing income from the business, certified by her accountant as the return that had been lodged with the Australian Taxation Office.
I indicated to Ms Russell that if those records confirmed her claim that the bulk of her massage business income was earned on Fridays and Saturdays, then I would consider admitting that evidence, upholding the appeal, and re-sentencing her to replace the five months of periodic detention with a roughly equivalent number of days of community service, which could be completed on weekdays, rather than on weekends when periodic detention is performed. Despite the appeal ground that refers to Ms Russell’s incapacity to do community service work, Ms Russell did not raise any objection to this suggestion.
Accordingly, I adjourned the matter to 14 November 2014 and made orders that the evidence described above, accompanied by either an affidavit or a statutory declaration by Ms Russell attesting to the truth of the material attached, was to be filed by 7 November 2014, and served on the respondent by the same date. Ms Russell had confirmed that her 2013-2014 tax return would be lodged before 7 November 2014. I noted that, if necessary, Ms Russell was permitted to serve an unsealed copy of her evidence on the respondent when she filed the evidence in the court registry, in case there was any delay in the receipt of a sealed copy of her documents. I warned Ms Russell that on 14 November, if necessary, the appeal would proceed in her absence.
No documents were filed or served as required by those orders.
14 November 2014
On 14 November 2014, Ms Russell did not appear. Instead, she sent an email to my associate, as follows:
I am the defendant in the above matter. It is listed for hearing at 10am today but I can't be there as I have [pneumonia]. I've attached a pic of my medical certificate & can post the original.
I don't know if I want to proceed with this appeal in it's current form. I am not coping with the situation. However, there is no way I can or will perform periodic detention or community service with my work and current emotional health. I am 100% sure I will breech. I'm aware that I'm at risk of this being made a full time jail term and if that is the decision of the court could someone please phone or email me and I will present to the nearest police station.
The email attached a photograph of a medical certificate apparently provided by a doctor which read as follows:
This is to certify that I have examined Michelle [Russell] today and I confirm that she will be unfit for work/school/usual activities from 13.11.14 to 17.11.14 inclusive. She is unable to attend court due to Bronchopneumonia.
Although the doctor’s provider number and phone and fax numbers were indecipherable from the photograph, a check of the ACT Health website confirmed the existence of the doctor who had signed the certificate and that he practices from the specified address.
In Ms Russell’s absence, and given her failure to file any of the documents relevant to her business and her indication that she might not want to proceed with the appeal “in its current form”, I made orders dismissing the appeal, but staying the dismissal to give Ms Russell one more chance to make her case. The stay was to operate until 4 December 2014, and the next mention was listed for 3 December 2014. I also ordered Ms Russell to provide the original medical certificate to the court.
Unfortunately, these arrangements were not accurately conveyed to Ms Russell by court registry staff; she was by different means advised that the next mention date was 3 December and that it was 4 December. Having discovered this inaccuracy, I made arrangements to ensure that if Ms Russell turned up on either day, the matter would be dealt with.
3 and 4 December 2014
Mrs Russell did not attend court on 3 December, but she did appear on 4 December, and provided the original medical certificate. She said that she was willing to serve her periodic detention, but asked that I continue the stay for another two weeks to allow her to complete her pre-Christmas massage appointments. She had not, however, brought her appointment book with her, so could not provide any kind of support for her request.
Ms Russell’s application was opposed by the respondent, but I stayed the orders for a further six days to allow her to deal with the first weekend’s appointments.
Outcome of appeal
The dismissal of the appeal, and the revival of Ms Russell’s obligations under the Magistrates Court sentence, therefore took effect on 11 December 2014.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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