Sullivan v Police

[2010] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SULLIVAN v POLICE

[2010] SASC 216

Judgment of The Honourable Justice Kourakis

20 July 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - FRESH EVIDENCE

Appeal against sentence – offences committed whilst appellant on good behaviour bond – Magistrate sentenced appellant to 26 months’ imprisonment with non-parole period of 12 months – Magistrate sentenced on misapprehension that amount of unexpired portion of parole was one year and 27 days when it was actually two years, nine months and 21 days – Magistrate corrected head sentence to four years and 11 months – Magistrate fixed new non-parole period of two years – appellant challenges new non-parole period on basis that Magistrate considered one year to be sufficient in all of the circumstances regardless of head sentence to be served – whether Magistrate erred in varying non-parole period – whether fresh evidence could be considered on appeal – Magistrate had power to vary non-parole period – new non-parole period appropriate proportion of head sentence – fresh evidence would not render non-parole period unjust – appeal dismissed.

Correctional Services Act 1982 s 74, s 75; Criminal Law (Sentencing) Act 1988 s 9A, s 32; Magistrates Court Act 1991 s 42, referred to.
R v Fraser [2007] SASC 257; R v Barnett (2009) 54 MVR 283; R v Sarandoglou [2010] SASC 190, applied.
R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v O’Shea (1982) 31 SASR 129, discussed.

SULLIVAN v POLICE
[2010] SASC 216

Magistrates Appeal:  Criminal

1. KOURAKIS J:     On 19 October 2009 the appellant was sentenced to concurrent six month terms of imprisonment for offences of non-aggravated serious criminal trespass in a non-residential building and theft.  The offences were committed on 9 June 2008; I shall refer to them as the June offences.  By those offences the appellant breached a bond pursuant to which an earlier sentence of imprisonment had been suspended.  The suspension was revoked and the appellant had to serve the 20 month term of that sentence cumulatively upon the concurrent sentences imposed by the Magistrate.

2. Both the offence for which the appellant had initially received a suspended sentence and the June offences were committed during a period of the appellant’s release on parole.  The appellant had entered into the bond on 22 May 2007.  The appellant was therefore also required to serve the unexpired portion of the parole as of the date that the first of the offences which breached his parole was committed.  The Magistrate imposed a non-parole period of 12 months on the misapprehension that the unexpired portion of the appellant’s parole was one year 27 days.  It was later discovered that the non-expired portion of parole that the appellant was required to serve was two years, nine months and 21 days.

3. The police brought the matter back on before the Magistrate on 8 January 2010. The Magistrate corrected the total head sentence to four years 11 months and revoked the earlier non-parole period, instead fixing a non-parole period of two years, in reliance on s 9A of the Criminal Law (Sentencing) Act 1988.  The appellant appeals against his sentence on the ground that the non-parole period should not have been varied, but does not challenge the corrected head sentence.  I would dismiss the appeal for the reasons which follow.

   Offender history and the proceedings in the Magistrates Court

4. I first set out the offending and sentencing history of the appellant.

5. On 23 November 2005 the appellant was sentenced to four years’ imprisonment with a non-parole period of 10 months, backdated to 7 July 2005 when the offences for which he was being sentenced were committed.  The appellant was released on parole on 6 July 2006.

6. On 10 July 2006 the appellant committed non-aggravated serious criminal trespass in a doctor’s rooms and theft of stationery and on 13 December 2006 he committed dishonestly take property without owner’s consent and carry an offensive weapon.  On 22 May 2007 the appellant received a sentence of 20 months’ imprisonment with a non-parole period of 10 months, suspended on his entry into a good behaviour bond for three years for those offences.

7. On 9 June 2008 the appellant committed non-aggravated serious criminal trespass in an office building and theft of stationery to the approximate value of $2,500.  He was remanded in custody until 8 August 2008 and began home detention bail on the following day.  On 7 October 2008 the appellant breached his bail, although his home detention bail continued after that date until he came to be sentenced for the 9 June 2008 offences.

8. On 19 October 2009 the Magistrate imposed two sentences each of six months imprisonment to be served concurrently for the offences of non-aggravated serious criminal trespass and theft. The offence of breach of bail was dealt with without any further penalty being imposed. The Magistrate revoked the suspended sentence and ordered that that sentence be served cumulatively on the concurrent sentences for the June offences. The Magistrate proceeded on the basis that the appellant was liable to serve one year and 27 days; that being the balance of his unexpired non-parole period as of 9 June 2008. Pursuant to s 75 of the Correctional Services Act 1982, where a person is sentenced to imprisonment for an offence while on parole and the sentence is not suspended, that person is liable to serve in prison the balance of the sentence or sentences of imprisonment in respect of which he or she was on parole; being the balance unexpired as at the day on which the offence was committed.

9. The police requested information from the Parole Board of South Australia about the balance of the appellant’s parole outstanding as at the date of the offences of 9 June and 7 October 2008. The balance outstanding as at the time of the earliest of those offences, 9 June 2008, was one year and 27 days. The letter from the Parole Board dated 24 November 2008 was provided to the Magistrate. Unfortunately, the letter did not address the statutory consequences of the revocation of the appellant’s earlier suspended sentence. Pursuant to s 75(1)(b) of the Correctional Services Act 1982, on the revocation of the appellant’s earlier suspended sentence, he became liable to serve in prison the balance of his unexpired parole period as at the day on which the offence was committed.

10. When the sentence imposed by the Magistrate on 19 October 2009 was communicated to the Department of Correctional Services, the Parole Board realised that the information it had earlier provided may have led to a misapprehension on the part of the Magistrate.  On 2 November 2009 the Secretary of the Parole Board wrote to the Criminal Registry of the Adelaide Magistrates Court.  That letter stated:

    When requested by the Office of the Director of Public Prosecutions, for information relating to s 75 of the Correctional Services Act, 1982, the Parole Board was not aware that the suspended sentence bond was also under consideration by the court, the offences [committed on 10 July 2006 and 13 December 2006] were also committed whilst the defendant was on parole. The unexpired balances of parole were therefore not provided to the court in relation to the original offence dates of 10 July and 13 December 2006.

11. The Secretary then informed the Court that the balance of the sentence of imprisonment which the appellant was liable to serve as of 10 July 2006 was two years, nine months and 21 days. The letter also informed the Court that a period of 66 days served by the appellant in custody pursuant to s 74 of the Correctional Services Act 1982 from 17 June 2009 to 21 August 2009 for breaching a condition of his parole had been taken into account in calculating the unexpired portion of the parole that the appellant was liable to serve.

12. The Magistrate received the letter on 8 January 2010 when the matter was called back on.  The Magistrate asked the appellant’s counsel if she wished to make any submissions on the setting of a new non-parole period.  The appellant’s counsel did not make any submissions.

13. The Magistrate proceeded by observing that, by reason of the operation of the Correctional Services Act 1982, the appellant was liable to serve a head sentence of four years, 11 months comprising the six month concurrent terms for the June 2008 offending, the sentence of the 20 months which had initially been suspended, and the unexpired non-parole period of two years, nine months and 21 days.  The Magistrate revoked the original non-parole period and instead fixed a non-parole period of two years effective from 19 October 2009.

    Power to alter sentence

14. It is necessary to begin by considering the power of the Magistrate to vary the sentence she had first imposed. The power on which the Magistrate relied was s 9A of the Criminal Law (Sentencing) Act 1988, which provides:

    9A—Rectification of sentencing errors

    (1)A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.

    (2)The Director of Public Prosecutions and the defendant are both parties to an application under this section.

15. In R v Fraser,[1] Anderson J sentenced an offender for manslaughter without having been made aware that the offender had 11 months’ unexpired period of parole. The Director applied for the rectification of the sentence pursuant to s 9A of the Criminal Law (Sentencing) Act 1988.  Anderson J said:

    [13]Cox J was faced with a similar situation in the matter of R v Porter (SCCRM-98-38). In that matter the defendant had been convicted of manslaughter and Cox J had not been made aware that the defendant had been on parole at the time of committing the crime. As in this case, counsel applied for the sentence to be rectified pursuant to s 9A to take into account the time remaining of the parole. In his ruling on the rectification of sentence, which he handed down on 3 February 1999, Cox J stated:

    It remains, then, to impose an appropriate sentence for the manslaughter offence and to fix a non-parole period to embrace both that sentence, which must be cumulative on the activated sentences by virtue of the legislation ... and, as I say, to fix a comprehensive non-parole period.

    [14] Cox J then increased the non-parole period.  He makes it clear that this increase in the non-parole period relates to the portion of the sentence relating to the unexpired portion of parole and is not an increase in the non-parole relating to the sentence for manslaughter.

    [15] It is my view that a separate period of non-parole should be set for this unexpired period of parole.  To take this approach in my view is not in any way re-sentencing Mr Fraser for the charge of manslaughter.  On 18 June 2007 I handed down a sentence for manslaughter that required Mr Fraser to spend a further 10 months in custody for that offence. In rectifying Mr Fraser’s sentence, he will still be spending 10 months in custody for manslaughter, but he will also spend a further period in custody for his breach of parole.

    [16] I am not in anyway re-evaluating the factors that I took into account in sentencing Mr Fraser for manslaughter. I do not view this as re-sentencing Mr Fraser. I regard it as an acceptable exercise of the powers conferred by s 9A. It seems to me that the section was enacted for this type of purpose. I consider that in the terms of s 9A what I am doing amounts to rectifying an error of a technical nature and also supplying a deficiency in the sentencing order.

    [17] Because of the view I have taken, it is not necessary to consider the decision in Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90. In that case, Doyle CJ stated:

    ... it is not clear that [s 9A] enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.[2]

    [1] [2007] SASC 257.

    [2]    R v Fraser [2007] SASC 257 at [13]-[17].

16. I find that the Magistrate was empowered by s 9A of the Criminal Law (Sentencing) Act 1988 to vary the sentence which she had earlier imposed because she was merely rectifying an error of a technical nature and correcting a deficiency in her earlier sentencing order.

    No error in the exercise of the discretion

17. The appellant contends that the Magistrate erred in exercising her discretion to revoke the non-parole period which she had earlier imposed upon him and setting a higher non-parole period.  His complaint is that the non-parole period was wrongly extended because, knowing the appellant’s background, the Magistrate had thought that the appellant could be safely released on parole after serving one year in custody, and that therefore there was no reason to fix a longer non-parole period when she later discovered that he had more unexpired parole to serve.

18. Section 32 of the Criminal Law (Sentencing) Act 1988 provides that, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must fix a non-parole period if the person is not subject to an existing non-parole period.  In R v Barnett,[3] I made the following comments with regards to s 32:

    [3] (2009) 54 MVR 283; [2009] SASC 332.

    [68]Pursuant to s 32(1) of the [Criminal Law (Sentencing) Act 1988], a court which sentences a convicted person to imprisonment must, subject to the other provisions of the section, fix such non-parole period as it considers appropriate. …

    …

    [70][The] statutory provisions [of the Criminal Law (Sentencing) Act 1988] must be understood against the general principles established by this Court for fixing a non-parole period pursuant to s 32. The first step in fixing a non-parole period is to identify the minimum period which the defendant must spend in prison to satisfy the punitive, deterrent and preventative purposes of punishment. Next, it is necessary to consider the likelihood of the prisoner responding to parole, his or her prospects of rehabilitation and the prospects that the terms and conditions of parole will be observed.

    [71]In R v Miller, Doyle CJ summarised the purpose of parole, by reference to several judgments of the High Court, in this way:

    What is the purpose of a grant of parole?  The High Court has considered this question on a number of occasions.  While there have been some variations of emphasis, a fairly consistent view has been expressed in a line of decisions which includes Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 and R v Shrestha (1991) 173 CLR 48. In Shrestha, Deane, Dawson and Toohey JJ conveniently drew together the principles that can be found in these cases. They said (at 67):

    The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.

    Having identified the basic theory of the parole system, they said (at 68) that:

    the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage.  At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole.

    Having explained the operation of the system, they then referred to the manner in which the decision to fix a non-parole period (the decision to be made by me) and the decision to release a prisoner should be made.  They said (at 68-69):

    The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released.  All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.  Thus, in Power v The Queen, Barwick CJ, Menzies, Stephen and Mason JJ drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where ‘the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’.  This approach has been consistently accepted in subsequent cases in this Court.  Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole.[4]  (footnotes omitted)

    [4]    R v Barnett (2009) 54 MVR 283; [2009] SASC 332 at [68]-[71].

19. In R v Sarandoglou,[5] I said the following in relation to the fixing of non-parole periods:

    [5] [2010] SASC 190.

    [30]It is well established that the non-parole period must reflect the minimum time which the prisoner must spend in prison in order to satisfy the punitive, deterrent and preventative purposes of punishment.[6] …

    …

    [32]The manifest purpose of parole is to promote the rehabilitation of an offender by allowing him or her to serve a part of his or her head sentence on parole in the community.  Courts are given a discretion to fix that non-parole period because it is recognised that ‘considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody’.[7]  The parole system operates by allowing ‘for a review of the offender’s case after he has actually served a significant part of the custodial sentence, for the purpose of deciding whether he should be released on parole at that stage’.[8]

    [33]It follows that the length of time during which an offender will benefit from the opportunity to rehabilitate whilst on parole in the community is as relevant a consideration in determining the length of the non-parole period as the requirements of punishment and deterrence.  Moreover, the very proposition that the non-parole period must, ‘no less than the head sentence’,[9] also reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence.  There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole.  I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other.  Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.

    [34]The process which I have just described is, as I observed in Foley v Police,[10] the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.[11]

    [35]In The Queen v Shrestha,[12] Deane, Dawson and Toohey JJ explained that:

    Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.[13]  (emphasis added)

    [36]It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence.  To proceed on any other basis, in my respectful view, distorts the overall sentence.[14]

    [6]    Rv Creed (1985) 37 SASR 566 at 569; R v Stewart (1984) 35 SASR 477; R v Barnett (2009) 54 MVR 283; [2009] SASC 332 at [70].

    [7]    The Queen v Shrestha (1991) 173 CLR 48 at 67 per Deane, Dawson and Toohey JJ.

    [8]    The Queen vShrestha (1991) 173 CLR 48 at 67-8 per Deane, Dawson and Toohey JJ.

    [9]    Rv Creed (1985) 37 SASR 566 at 568 per King CJ.

    [10] [2008] SASC 338 at [17].

    [11]   R v Major (1998) 70 SASR 488 at 492 per Doyle CJ; R v Power [2003] SASC 288 at [29] per Sulan J, Doyle CJ and Besanko J agreeing; R v Matthews [2008] SASC 259 at [12]-[13] per Kelly J, Duggan and Anderson JJ agreeing.

    [12] (1991) 173 CLR 48.

    [13]   The Queen vShrestha (1991) 173 CLR 48 at 69.

    [14]   R v Sarandoglou [2010] SASC 190 at [30]-[36].

1. As can be seen from those passages, it is the case that non-parole periods are commonly fixed as a proportion of the head sentence.  I can understand that the appellant feels aggrieved by the fact that the Magistrate considered that a non-parole period of 12 months was appropriate in all of the circumstances, knowing as she did the appellant’s background and genuine attempts at rehabilitation.  However, a non-parole period is not only an assessment of when an offender is ready to commence the rehabilitative process of parole.  It must also reflect an element of punishment.  If a non-parole period is too small a proportion of the head sentence, then it will not adequately reflect the punitive, deterrent and preventative purposes of punishment.

2. In my view, even though it is necessarily implicit in the sentence first imposed by the Magistrate that it was her view that there were reasonable prospects of the appellant successfully embarking upon a course of rehabilitation after serving just 12 months in prison, it was necessary that the non-parole period fixed by her reflect not only the appellant’s prospects of rehabilitation but also the seriousness of the offences for which he was sentenced.  It was therefore necessary and appropriate to increase the non-parole period so that it bore a reasonable proportion to the head sentence which the appellant was liable to serve on a correct understanding of the non-expired parole which he was also liable to serve.

   Failure to make further submissions

3. The appellant further complains that there has been a miscarriage of justice by reason of the failure of his counsel to make any further submissions when his matter was called back on 8 January 2010.  I can understand the appellant’s concern about the silence of his counsel, particularly having regard to the increase in the non-parole period he must serve.  However, there was simply no submission that his counsel could have effectively made that had not been made on the previous occasion.

4. For the reasons that I have explained above, the Magistrate had to re-consider the proper non-parole period having regard to the effective head sentence.  The submissions in mitigation having been made on the earlier occasion, there was nothing to be gained by repeating them.  In the end result, the non-parole period fixed by the Magistrate was in fact a lesser proportion to the head sentence than the non-parole period that she had fixed on the earlier occasion.  In my view, there was no submission that the appellant’s counsel could usefully have made that could have had any bearing on the end result.

   Fresh evidence on appeal

5. The appellant seeks to rely on fresh evidence in support of his claim that the Magistrate erred in extending the non-parole period to two years when she had already considered a one year non-parole period to be sufficient, having regard to the appellant’s circumstances.

6. Whilst he was remanded in custody he was seen by a psychiatrist, Dr Czechowicz.  It was the opinion of Dr Czechowicz that the appellant’s criminal activity was probably associated with depressive symptoms which had not been previously noticed because they were masked by the appellant’s abuse of alcohol and benzodiazepines, which he had taken in the hope of alleviating those symptoms.  The report of Dr Czechowicz does no more than note an association between the appellant’s depression and his offending.  It is an association which is in any event implicit in the discussion of the appellant’s health problems and the report of the psychologist which were before the Magistrate.  The connection between mental states like anxiety, depression and drug dependency and the association of the latter with crime are well known to the courts.

7. A report from the psychologist attached to the clinical advising team to the Magistrates Court Diversion Program reported extensively on the appellant’s mental health.  The psychologist referred to his depression and to the opinion of the appellant’s general practitioner that the appellant had suffered from depressed mood for a long time.  However, the general practitioner did not formally diagnose a major depressive disorder.  The report noted an earlier diagnosis of borderline personality disorder.

8. The appellant also sought to rely on a letter addressed to the Court by his mother in which she provides a brief background of Mr Sullivan’s life from her perspective.  She notes that, now that Mr Sullivan is being treated for anxiety and depression, she can see in him a stronger and more determined man and that she feels so positive about his chances of turning his life around that she is prepared to move to Adelaide to live with him and support him.  She adds that, should Mr Sullivan return to alcohol or drugs, she would leave immediately.

9. Pursuant to s 42(4) of the Magistrates Court Act 1991, a Court may on an appeal from the Magistrate’s Court re-hear any witnesses or receive fresh evidence if the interests of justice so require it. In my view, the power conferred by that section is a wide one which applies both to appeals against conviction and appeals against sentence. There is no reason to read the statutory power in s 42 narrowly and in the sense of that phrase understood by the common law on motions for new trials.

10. In R v Smith,[15] the Court of Criminal Appeal considered its power to receive fresh evidence on an appeal against sentence brought pursuant to the provisions of the Criminal Law Consolidation Act 1935.  In that case, King CJ applied the earlier decision of R v Dorning,[16] which had held that fresh evidence could be led on appeal against sentence subject to certain conditions: that the evidence could not have been obtained with reasonable diligence for use at trial; that the evidence would probably have had an important, although not necessarily decisive, influence on the result of the case; and that the evidence must be apparently credible.[17]  However, the Court held that it could not hear evidence as to events which had occurred after sentence.[18]  King CJ drew a distinction between events occurring after sentence which were unconnected with the circumstances which existed at the time of sentencing and events which, although occurring after sentence, “show the true significance of facts which were in existence at the time of sentence”.[19]

    [15] (1987) 44 SASR 587.

    [16] (1981) 27 SASR 481.

    [17]   R v Dorning (1981) 27 SASR 481 at 486 per Walters, Zelling and Williams JJ.

    [18]   R v Smith (1987) 44 SASR 587 at 588 per King CJ.

    [19]   R v Smith (1987) 44 SASR 587 at 588, relying on R v O’Shea (1982) 31 SASR 129 at 144 per Wells J, Walters and Matheson JJ agreeing.

11. Whatever the position may be with respect to the powers of the Full Court,[20] the particular restrictions explained in those authorities do not apply to appeals to this Court from the decisions of Magistrates.  In R v O’Shea,[21] Wells J distinguished the position of the Court of Criminal Appeal from what were then called Justices Appeals, emphasising that such appeals were re-hearings.[22]  Similarly, in Dorning the Court of Criminal Appeal spoke of the “fundamental difference” between a criminal appeal and a Justices Appeal.[23]  In my view, the transposition of the power of appeal from the Justices Act 1921 to the Magistrates Court Act 1991 has not affected that position. Section 42 of the Magistrates Court Act 1991 confers a wide discretion,[24] which requires this Court to balance the interests of justice in finality against the public interest in ensuring an appropriate sentence has been passed.

    [20]   C, TL v Police [2010] SASC 115 at [65]-[70] per Kelly J, White J agreeing.

    [21] (1982) 31 SASR 129.

    [22]   R v O’Shea (1982) 31 SASR 129 at 144.

    [23]   R v Dorning (1981) 27 SASR 481 at 488 per Walters, Zelling and Williams JJ.

    [24]   Lewis v Holder (2003) 229 LSJS 103 at 113-4 [27]-[29] per Gray J.

12. I have read and had regard to the fresh evidence on which the appellant seeks to rely.  I do not consider that the evidence, even if it were to be received, would render the non-parole period fixed by the Magistrate unjust and liable to be set aside.  I therefore dismiss the appeal on this ground.

    Conclusion

13. For the reasons I have given above, and even having regard to the fresh evidence on which the appellant relied, I dismiss the appeal.