Smith v The Queen

Case [2014] NSWCCA 316

Court of Criminal Appeal

New South Wales
Case Title: Smith v R
Medium Neutral Citation: [2014] NSWCCA 316
Hearing Date(s): 17/09/2014
Decision Date: 18 December 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [100]
Adamson J at [101]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - manslaughter and being an accessory after the fact of murder - admissibility of "fresh" evidence - whether a miscarriage of justice occurred in sentence proceedings - whether assistance provided by applicant - low value of assistance - no reduction in sentence appropriate - subjective case adequately evaluated - sentence not manifestly excessive - no slip in sentence imposed.
Legislation Cited: Crimes Act 1900 - s 18(1)(b), s 349(1)
Crimes (Sentencing Procedure) Act 1999 - s 23
Criminal Appeal Act 1912 - s 5F(3)
Cases Cited: "C" (1994) 75 A Crim R 309 at 314-315
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Kaminic v R [2014] NSWCCA 116
Khoury v R [2011] NSWCCA 118
Lowndes v R [1999] HCA 29; 195 CLR 665
Norrie v R [2008] NSWCCA 185
R v Fordham (1997) 98 A Crim R 359
R v Kristi Anne Abrahams [2013] NSWSC 952
R v Rushby (1977) 1 NSWLR 594
R v Smith [2013] NSWSC 796
Category: Principal judgment
Parties: Robert Terry Smith - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr R Strickland SC - Applicant
Ms J Girdham SC - Respondent Crown
- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/133222
Decision Under Appeal
- Before: Latham J
- Date of Decision:  03 May 2013
- Citation: R v Smith [2013] NSWSC 796
- Court File Number(s): 2011/133222

JUDGMENT

  1. HOEBEN CJ at CL:

    On 16 December 2011 at the Penrith Local Court the applicant pleaded guilty to the gross negligence manslaughter of a six year old child (by failing to obtain medical assistance) who was murdered by his de facto partner on 13 July 2010 and to being an accessory after the fact to her murder, that offence having been committed between 13 July 2010 and 21 April 2011.

  2. Manslaughter is an offence contrary to s18(1)(b) Crimes Act 1900 and subject to a maximum penalty of imprisonment for 25 years. The accessorial charge which is contrary to s18(1)(a)/349(1) Crimes Act 1900 is also subject to a maximum penalty of imprisonment for 25 years.

  3. Sentence proceedings were heard before Latham J on 15 February, 1 March and 15 March 2013. On 3 May 2013 her Honour sentenced the applicant as follows:

    ·Manslaughter: imprisonment for a fixed term of 7 years to commence 22 April 2011 and expire 21 April 2018.

    ·Accessory after the fact to murder: imprisonment with a non-parole period of 9 years commencing 22 April 2014 and expiring on 21 April 2023 with a balance of term of 4 years to expire 21 April 2027.

    The…

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Smith v The Queen [2014] NSWCCA 316
Case
[2014] NSWCCA 316
Decision Date

CaseChat Overview and Summary

The applicant, Smith, appealed against his sentence for manslaughter and being an accessory after the fact of murder. The court had to determine whether Smith's assistance to authorities constituted fresh evidence warranting a lesser sentence and whether the sentence was manifestly excessive. The court found that Smith's assistance was not fresh evidence as it did not exist at the time of sentencing and therefore could not be considered. Furthermore, the court found that the assistance provided by Smith was of low value and did not warrant a lesser sentence. The court also found that the sentence was not manifestly excessive and that the sentencing judge had adequately evaluated the subjective circumstances of the case.

The court concluded that the sentence imposed was not manifestly excessive and that the appeal should be dismissed. The court found that the sentence was appropriate given the circumstances of the case and that the sentencing judge had adequately evaluated the subjective factors. The court also found that the applicant's assistance to authorities did not warrant a lesser sentence as it was of low value. The court found that the sentence imposed was not manifestly excessive and that the appeal should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought leave to appeal against sentence on the following grounds:(1)A lesser sentence is warranted in law due to the assistance given by the applicant to the authorities in relation to his co-offender, Kristi Abrahams.(2)Her Honour erred in not finding that there was any diminution in moral culpability arising from the relationship between the applicant and the deceased.(3)The sentence for the offence of accessory after the fact of murder was manifestly excessive.(4)Her Honour erred in:(a)Imposing a sentence of 13 years for the offence of accessory after the fact to murder when she intended to fix a sentence of 12 years.(b)Imposing an aggregate sentence of 16 years with a non-parole period of 12 years rather than a total aggregate sentence of 15 years with a non-parole period of 11 years 3 months.(c)Failing to impose a non-parole period of 8 years and 3 months for the offence of accessory after the fact to murder.Factual background The sentence hearing proceeded on the basis of a lengthy statement of agreed facts prepared by the Crown which her Honour summarised in the sentence judgment at pp 2-8. The applicant, who was aged 34 at the time of sentence, commenced a relationship with Ms Abrahams in 2006. She had a daughter, the deceased, who was born in April 2004 during her relationship with a former partner. This relationship ended following an assault by Ms Abrahams on the deceased on 3 July 2005. The child's father reported the assault to the police. Ms Abrahams was charged with assault occasioning actual bodily harm and was convicted of that offence on 1 May 2006 in the Local Court. She received a s9 bond for a period of 12 months. The deceased was placed in foster care for 18 months. Ms Abrahams was directed to enter into a parental care plan to attend anger management and counselling programs. She was allowed supervised access to the deceased. The deceased was restored to Ms Abrahams' custody on 23 December 2006. At that time she and the applicant rented premises in Mount Druitt being a two bedroom unit on the first floor. The applicant adopted the role of father to the deceased and thought of himself as her father. The applicant and Ms Abrahams subsequently had two children together, one born in February 2008 and the other in July 2010. The deceased occupied one bedroom of the unit while Ms Abrahams and the applicant shared the second bedroom with the other two children. At about 9.30am on 1 August 2010 Ms Abrahams called triple 0 and reported the deceased missing from her bedroom and the front door of the unit open. She told police that the applicant was searching for the missing child. Police undertook a large scale search and investigation but the deceased could not be found. Ms Abrahams and the applicant were interviewed by the police on two occasions, in August and September 2010. They each gave false accounts of the deceased's disappearance. They maintained that they put the deceased to bed at about 9.30pm. They further maintained that Ms Abrahams discovered the deceased missing from her bedroom at about 9.30am as she was returning from the bathroom. She said that she woke the applicant to look for the deceased while she rang triple 0. The applicant told police that he was yelling out the deceased's name throughout the neighbourhood, although none of the neighbours heard or saw anything consistent with that version of events.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

Under this ground the applicant also submitted that by reference to paragraphs 6 - 17 of his affidavit of 16 September 2014 there was "fresh evidence" that his conditions of imprisonment had been significantly more onerous because of the assistance which he had provided. While this issue was raised briefly in oral argument in the appeal (T.4.44, T.47.1) it was not otherwise developed or pursued. Consideration The question of what constitutes "fresh evidence" and its admissibility on appeal was comprehensively analysed by Simpson J (with whom Davies J and Grove AJ agreed) in Khoury v R [2011] NSWCCA 118. The evidence in that case comprised psychological and psychiatric reports which were not before the sentencing judge. When reviewing the issue generally, her Honour said:"The principles applicable to the tender of fresh evidence in applications for leave to appeal against sentence 104 The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. 105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. 106 I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake, per Kirby J, at [63]. 107 "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. 108 If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham.109 It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both criteria. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: "6(3) ... the court, if it is of the 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." 110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. 111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra). 112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing. 113 Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217. 114 Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13. 115 Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1. ...121 That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court to examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)."