Background
Background to the litigation
At the hearing of the appeal four documents that had not been before the Magistrate were received by the Court. (i)An affidavit of the police prosecutor, Dianne Lynette Langton, sworn 16 January 2014, was read by the respondent. In that affidavit, Ms Langton set out her recollections of what occurred before the Magistrate on the three occasions when submissions as to sentence were made, 21 October 2013, 4 December 2013 and 11 December 2013. This affidavit was received without objection by the appellant.(ii)An affidavit by senior counsel for the appellant, Grant Raymond Algie, sworn 4 February 2014, was read by the appellant. In that affidavit Mr Algie set out his recollections of what occurred before the Magistrate on the same three days.[2] This affidavit was received without objection by the respondent.[2] These are no material differences in the two recollections.(iii)A further[3] report by the clinical psychologist, Ms Mary Johnson, dated 31 January 2014 and purporting to address matters which had come to her attention after sentencing and after the appellant had been released on bail, was received over the objection of the respondent. After hearing from the parties, I was satisfied that the usual requirements for the admission of fresh evidence had been met.[4] I was satisfied that this latest report by Ms Johnson served the purpose of explaining the true significance of facts which were in existence and known at the time of sentence. In R v Smith,[5] King CJ said this.The proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.After ruling on this report, counsel for the respondent declined to take the opportunity offered of obtaining an answering report but, rather, submitted that, in the circumstances, only limited weight should be given to this report. (iv)An affidavit sworn on 4 February 2014 by the appellant’s husband, Frederick Charles Warner, was read by the appellant. In this affidavit Mr Warner deposes to a number of aspects of his and the appellant’s financial situation and the effect upon their financial situation that would result should the appellant be required to serve an immediate term of imprisonment. Counsel for the appellant, candidly, acknowledged that not all of the matters deposed to could be characterised as fresh evidence in accordance with the notion and requirements as discussed in, for example, R v Dorning.[6] Counsel submitted that, nevertheless, it was evidence that should be received by the Court in any event. In this respect, counsel relied upon the summary of the principles, governing the reception of such further evidence, provided by Gray J in R v Pickard.[7] His Honour’s observations on this topic included the following.In sentence appeals, the courts have adopted a flexible view. Further evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[8] There is also the public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension, the courts have developed principles, including those set out [in paragraph [41] of his Honour’s judgment] to facilitate the reception of evidence in appropriate cases. The decisions of McIntee,[9] Smith,[10] C[11] and Brain[12] are examples of means by which this tension may be resolved.[13] In the criminal court where liberty may be lost, the overriding principle must be the interests of justice.During argument, counsel for the Crown withdrew her initial objection to the reception of this affidavit and conceded that it would be in the interests of justice for the Court to receive it. Again, submissions were made as to the weight that ought be accorded to it. Leaving aside the question of admissibility which I do not need to decide, I was satisfied that the matters deposed to in Mr Warner’s affidavit (whilst, largely, in existence at the time of sentence) also served to explain facts which had been before the sentencing judge so as to put them in a new light.[14][3] A number of earlier reports, dated 18/10/2012, 17/12/2012, 14/1/2013, 18/3/2013 and 9/9/2013, had been provided to the Magistrates Court by Ms Johnson on behalf of the appellant.[4] See for example, R v Dorning (1981) 27 SASR 481 at 485; “In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible… .”[5] (1987) 33 SASR 587 at 588.[6] (1981) 27 SASR 481 at 485.[7] [2011] SASCFC 134 at [41]-[42].[8] Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593.[9] R v McIntee (1985) 38 SASR 432.[10] R v Smith (1987) 44 SASR 587.[11] R v C (2004) 89 SASR 270.[12] R v Brain (1999) 74 SASR 92.[13] See also, Aplinv Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341.[14] Cf; R v Smith (1987) 33 SASR 587 at 588.Factual background
Decision
Reasons for decision
NICHOLSON J
There is a risk, for the reasons Dr Raeside has given, that the appellant might commit further dishonesty offences. However, I am not persuaded that a term of imprisonment necessarily will assist to prevent this. In this respect, because of the nature of the appellant’s personality disorder and other psychological difficulties, the effect that an immediate term of imprisonment might have by way of personal deterrence is to be considered, at best, as problematic.[67] Furthermore, both Dr Raeside and Ms Johnson agree that, through the treatment being provided by Ms Johnson, the appellant is making progress towards rehabilitation in this respect. The continuation of this treatment and progress towards rehabilitation would appear to be the best option available for the protection of the public. To incarcerate the appellant now would run the real risk of undoing the good work that has been done to this point and arguably exacerbate rather than reduce the risk of the appellant offending in this way again. It is in this sense that, in my view, the Magistrate appears to have placed insufficient weight on the importance of the appellant continuing with her treatment.[67] See generally R v Verdins (2007) 169 A Crim R 581; [2007] VSCA 102.Conclusion This was the second time the appellant has offended in this way. This consideration had a strong influence on the Magistrate’s refusal to suspend[68] but, given the other matters I have referred to, too much influence. The previous offending occurred many years earlier. From the end of the first period of offending to the beginning of the second period about eight years had elapsed. The appellant has not offended again over a period of five years (four and half years at the time of sentence) and is now, for the first time, engaging in appropriate psychological treatment. Notwithstanding the undoubted seriousness of the present offending, the question of suspension remained open on the information before the Magistrate.[69][68] Remarks on Penalty at [13].[69] Kovacevic v Mills [2000] SASC 106 at [40], [43]; R v O’Toole [2013] SASCFC 18 at [50]. With the benefit of the additional evidence available on appeal (the affidavit of Mr Warner and the new report by Ms Johnson) I am satisfied that, at the time of sentencing, insufficient weight was placed on the question of restitution when understood in its full context, on the mental state of Ms Warner and in particular the potential risk of suicide, again when understood in its full context, on the effect that an immediate term of imprisonment would have on Mr Warner who himself has suffered as a result of the appellant’s conduct and on the importance to the community of the appellant being able to continue with her psychological treatment. These matters, in combination, cause me to conclude that the discretion not to suspend miscarried. The appeal is allowed and the sentence of the Magistrate set aside. In undertaking a resentencing of the appellant, I see no reason to depart from the starting points for head sentence and non-parole period determined by the Magistrate nor from the discounts given with respect to the pleas of guilty. The head sentence of two years with a non-parole period of 12 months is confirmed. However, for the reasons set out, I am satisfied that good reason does exist to suspend the term of imprisonment and I will do so provided that the appellant is prepared to enter into a bond to be of good behaviour with conditions.