Zefi v The Queen - [2021] SASCA 15

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ZEFI v THE QUEEN
[2021] SASCA 15
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
1 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Application for permission to appeal against sentence.
The applicant pleaded guilty to the following four offences: trafficking in a large commercial quantity of a controlled drug (cannabis); cultivating controlled plants (cannabis) for sale; unlawful possession of money; interfering with the supply of electricity.
After identifying individual notional starting points and guilty plea discounts for each of these offences, the sentencing Judge imposed a single head sentence of four years imprisonment and fixed a non-parole period of two years.
As the first count was a “serious and organised crime offence” under s 96(9) of the Sentencing Act 2017 (SA), the sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment was conditioned upon satisfaction that exceptional circumstances existed for doing so. The sentencing Judge did not accept that the applicant’s health and family circumstances were sufficient to establish exceptional circumstances, and so declined to suspend the applicant’s sentence of imprisonment.
The applicant seeks permission to appeal against the sentence imposed on two grounds. The first contends that the sentencing Judge erred in failing to take adequate account of the hardship to the applicant’s family, flowing from his leukemia and post-traumatic stress disorder, his wife’s migraines and the lack of additional support available to her, and his daughter’s disability and son’s haemophilia. The second contends that the sentencing Judge erred in failing to find exceptional circumstances sufficient to suspend the applicant’s sentence.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), refusing the application for permission to appeal:
1. The sentencing Judge had regard to the full nature and extent of the family hardship relied upon by the applicant. The precise weight to be attached to this consideration was a matter for the sentencing Judge, and there is nothing in the sentencing remarks in this case to indicate that his Honour’s discretion miscarried.
2. The sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment did not miscarry. His Honour was entitled to reject the submission that the applicant’s family circumstances gave rise to exceptional circumstances warranting suspension when considered in the context of the very serious nature of the applicant’s offending, and Parliament’s intention that suspended sentences not be generally available in respect of offending of this nature.
Controlled Substances Act 1984 (SA) ss 32(1), 33B(3); Summary Offences Act 1953 (SA) ss 41(1); Electricity Act 1996 (SA) ss 84(1)(b); Sentencing Act 2017 (SA) ss 3, 4, 11, 96(3)(c), 96(6)(a), 96(9); Criminal Law (Sentencing) Act 1988 (SA) ss 10(1)(n) , referred to.
R v Wirth (1976) 14 SASR 291; Neill v Police [1999] SASC 270; R v Penno [2004] SASC 354; R v D, RHC [2011] SASCFC 31; R v Hill (2011) 110 SASR 588; R v M, G (2016) 262 A Crim R 152; R v Reiner (1974) 8 SASR 102; Lane v The Queen [2020] SASCFC 82; R v Skinner (2016) 126 SASR 120; R v Yavuz (2018) 130 SASR 231; House v The King (1936) 55 CLR 499; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, considered.

ZEFI v THE QUEEN
[2021] SASCA 15

Court of Appeal: Kelly P, Doyle and Bleby JJA

KELLY P: I would refuse permission to appeal for the reasons given by Doyle JA.
DOYLE JA: The applicant pleaded guilty to the following offences:
·trafficking in a large commercial quantity of a controlled drug (cannabis), contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the CSA) (maximum penalty of life imprisonment or a fine of $500,000, or both) (count 1);
·cultivating controlled plants (cannabis) for sale, contrary to s 33B(3) of the CSA (maximum penalty of 10 years imprisonment or a fine of $50,000, or both) (count 2);
·unlawful possession of money, contrary to s 41(1) of the Summary Offences Act 1953 (SA) (maximum penalty of two years imprisonment or a fine of $10,000) (count 3); and
·interfering with the supply of electricity, contrary to s 84(1)(b) of the Electricity Act 1996 (SA) (maximum penalty of two years imprisonment or a fine of $20,000) (count 4).
After identifying individual notional starting points and guilty plea discounts for each of these offences, the sentencing Judge imposed a single head sentence of four years imprisonment and fixed a non-parole period of two years.
As count 1 was a serious and organised crime offence under s 96(9) of the Sentencing Act2017 (SA), the sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment was conditioned upon satisfaction that exceptional circumstances existed for doing so (ss 96(3)(c) and 96(6)(a)). The sentencing Judge did not accept that the applicant’s health and family circumstances were sufficient to establish exceptional circumstances, and so declined to suspend the applicant’s sentence of imprisonment.
The applicant seeks permission to appeal against the sentence imposed. He relies upon two proposed grounds of appeal. The first contends that the sentencing Judge erred in failing to take adequate account of the hardship to the applicant’s family (flowing from his leukemia and post-traumatic stress disorder, his wife’s migraines and the lack of additional support available to her, and his daughter’s disability and son’s haemophilia). The second contends that the sentencing Judge erred in failing to find exceptional circumstances sufficient to suspend the applicant’s sentence of imprisonment.
The applicant’s application for permission to appeal was referred to this Court to be heard and determined at a full hearing.
It is convenient to commence by summarising the applicant’s offending and personal circumstances, and the sentencing Judge’s remarks, before returning to address the two proposed grounds of appeal more directly.
Circumstances of the offending
As at 2018, the applicant was residing in a Medindie Gardens property with his wife and two young children (a daughter and a son). He had also been renting a residential property in North Adelaide since September 2014.
On 19 July 2018, the police attended the North Adelaide property. Upon their arrival, the police located the applicant inside the premises. They also located his van parked under a rear carport. The van contained various documents in the applicant’s name, including bank deposit receipts for large sums of cash, Cryovac bags, $1,065 cash in the applicant’s wallet, and a bottle of ‘Zero’ agriculture chemicals.
Upon searching the premises at the North Adelaide property, the police located a room which had been set up with four drying racks containing 31.759 kilograms of loose female cannabis head (count 1). Another room was being exclusively used to hydroponically grow six mature cannabis plants (count 2). A third room was set up with six black pots and hydroponic equipment. It appeared these pots had been recently harvested.
An electrician attended at the police’s instigation and confirmed that electricity was being illegally diverted from the premises (count 4).
Later the same day, the police searched the applicant’s residence in Medindie Gardens. In an office at that address, the police located two white envelopes and two brown paper bags in the top drawer of a filing cabinet. They contained a total of $30,000 in cash. A further $9,720 in cash was located in a brown paper bag in a handbag belonging to the applicant’s wife. The applicant ultimately pleaded guilty to being in unlawful possession of $15,000 of the cash located at his Medindie Gardens residence (count 3).
It was agreed for the purposes of sentencing that if the six growing cannabis plants were harvested as seized, each could have yielded between 350 to 400 grams of dry usable cannabis material. If the cannabis harvested from the plants was to be sold, the street value was between $18,000 and $24,000 if sold by the ounce, or between $13,800 and $18,880 if sold by the pound.
In relation to the 31.759 kilograms of drying cannabis, and taking the estimate most favourable to the applicant by factoring in a shrinkage rate of 75 per cent (giving 7.92 kilograms), the sentencing Judge accepted that the value of the cannabis was around $70,000 if sold by the ounce, or between $52,000 and $54,000 if sold by the pound.
The sentencing Judge concluded his summary of the applicant’s offending by noting that while he accepted that the applicant was a user of cannabis, and would have used some of it himself, it was appropriate to sentence the applicant on the basis that he intended to sell most of it. His Honour added that the applicant thus fell to be sentenced on the basis that he was responsible for a sophisticated hydroponic set up in premises that he had been renting for some four years for the purpose of growing cannabis. The Judge acknowledged, however, that the applicant was only to be sentenced in respect of the cannabis which was found on the occasion of the search.
The applicant’s personal circumstances
In addressing the applicant’s personal circumstances, the sentencing Judge made reference to various matters, including the health difficulties on the part of the applicant and his family. Given the nature of the applicant’s proposed grounds of appeal, it is appropriate to set out the relevant passage from his Honour’s sentencing remarks in full (with paragraph numbering inserted for convenience):
[1]In sentencing you, I have taken into account the submissions of counsel; your criminal history; a large number of medical reports about you, your wife and your children; the evidence of Dr Pronk, who is the director of South Australia Prison Health; a report of Mr Fugler psychologist; a mental health treatment plan; documents about your donations to charities and a letter from your wife.
[2]You are now 41, a married man with two children, nine and six. You have some prior convictions, three of them for drug offences but judging by the penalties imposed for them I conclude that they were not especially serious.
[3]You were born in Kosovo, the eldest of your parents' four children. Your early years were unremarkable. You grew up in a supportive family and you seemed to have done well at school. By the time were you 17, Kosovo was becoming a dangerous place in which to live. With help from your family, you fled first to Italy and then to Australia. About a year later your parents and siblings followed you here. For some time after their arrival you were the breadwinner for the whole family working hard as a painter. Over the years you continued to work as a contract painter, running your own business.
[4]You and your wife have been married for a number of years and you continue to have her support. She works full-time as a beautician and is also studying nursing at TAFE.
[5]In the middle of 2019 you were diagnosed with what is known as hairy cell leukemia, a serious condition. When the matter first came before me in about July last year, I adjourned the matter at your counsel's request. You were about to have chemotherapy. You underwent that treatment in September last year and it was not until March that doctors were able to report that it had been successful and that you are, or were then, in remission. The coronavirus pandemic was then underway in Australia and I further adjourned the matter because it was submitted to me that you would be at high risk of contracting COVID-19 in prison. I ended up hearing evidence from Dr Pronk about that. Dr Pronk was a careful witness. I accepted his evidence. He was not prepared to give evidence on one issue, saying that he would defer to an immunologist. I then received a report from an immunologist who reported that you were not at risk and said that he tried to reassure you about that. Having said that, and while noting that you are and that you remain in remission, I accept that you would and will always be anxious about your health.
[6]Mr Fugler dealt with the history of your mental health. Owing to your experiences when fleeing from your native country, you suffered from post-traumatic stress disorder. That disorder is now in the long-term recovery stage and there has been a reduction in the severity of the signs associated with it but they have not yet remitted completely. Mr Fugler noted that those signs continued to be present, particularly when you are under stress.
[7]The family's general practitioner has reported that your wife and children have particular health problems. Your wife sometimes suffers from debilitating migraine headaches. Your son suffers from mild factor IX deficiency, sometimes called Haemophilia B. Day-to-day management of the condition involves your being sure to have appropriate medication on hand should it be needed and your son refraining from high-contact activities.
[8]In August 2018, an organisation called Kid Sense Child Development reported that your daughter may suffer from social and behavioural traits consistent with autism spectrum disorder. At that stage she was receiving occupational therapy regularly. You told Dr Fugler, when you saw him earlier this month, that she attended occupational therapy and speech therapy weekly. Both your son and your daughter have been attending primary school and there is no suggestion that their health conditions, which I have referred prevent them from doing so.
[9]Your own health prevented you from continuing work as a painter from shortly before the time you were diagnosed with cancer. While the treatment has been successful and you are in remission, you have not been able to work for some 18 months, apart from doing a few small jobs when you felt up to it. You hope that in time you will be able to resume your work as a full-time painter.
The sentence imposed
In addressing the sentence he intended to impose, the sentencing Judge noted the seriousness of the applicant’s offending, which he added was plain from the maximum penalties prescribed by Parliament. His Honour noted the great importance of general deterrence in cases of commercial drug offending. However, in respect of personal deterrence, the sentencing Judge said that, in the applicant’s case, “owing to the effect of your behaviour upon your family to date, I think that personal deterrence is probably of less importance.”
The sentencing Judge considered it appropriate to identify separate notional sentences for each of the offences, given the differing guilty plea discounts available in respect of each. His Honour said that for the offence of trafficking in a large commercial quantity of cannabis (count 1) he would have imprisoned the applicant for five years; for the offence of cultivation (count 2), two years imprisonment; for the offence of unlawful possession of money (count 3), six months imprisonment; and for the offence of interfering with the supply of electricity (count 4), nine months. The sentencing Judge indicated that he would then have allowed the maximum available discount for each of these offences, being 20 per cent for counts 1, 2 and 4, and 30 per cent for count 3; and that he would have ordered that the various sentences be served concurrently.
The sentencing Judge ultimately imposed a single sentence of four years imprisonment, and fixed a non-parole period of two years. In declining to suspend that sentence of imprisonment, the sentencing Judge said:
I am only permitted to suspend that sentence if I am satisfied that exceptional circumstances exist. Your counsel submitted that, in combination, your health and the health of your children and your wife, together with the circumstances of your committing these offences make out special circumstances. I have given that submission earnest consideration but in my opinion the circumstances are not exceptional. It is regrettable that in many cases that come before the courts the families of sentenced prisoners will suffer to some degree on account of health, social or other problems. In my view, while your family circumstances are different from those of many families, they are not unusual, special or uncommon in the sense they become exceptional. Accordingly, I decline to suspend the sentence.
Hardship to dependents
I accept that hardship to an offender’s dependents may, in some cases, be a relevant consideration, despite this not being a matter expressly identified in s 11 of the Sentencing Act.[1]
[1] Cf s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA).
However, the law recognises that there will often be some degree of hardship visited upon the dependents of people who commit criminal offences and become liable to serve a custodial sentence of imprisonment. As a reflection of this, hardship to dependents will only impact significantly upon the sentence to be imposed where that hardship is of a relatively serious or extreme nature.[2] Further, even when relevant, hardship of this type is merely a factor to which the Court should have regard. It will not generally control the sentencing outcome, or otherwise be the dominant factor. The usual sentencing objectives and considerations, in particular as prescribed by the Sentencing Act, will continue to govern the process, and require, for example, that the Court have regard to the importance of community protection (being the primary sentencing purpose under s 3), as well as punishment and accountability, denouncement, recognition of harm, deterrence and rehabilitation (being the secondary sentencing purposes under s 4).
[2] R v Wirth (1976) 14 SASR 291 at 295-296; Neill v Police [1999] SASC 270 at [24]; R v Penno [2004] SASC 354 at [46]; R v D, RHC [2011] SASCFC 31 at [14], [21]-[24]; R v Hill (2011) 110 SASR 588 at [38]-[41]; R v M, G (2016) 262 A Crim R 152 at [39]-[40], [100].
The applicant relies upon the combination of circumstances (namely, his diagnoses of leukemia and PTSD, his wife’s migraines and the lack of additional support available to her, and his daughter’s disability and son’s haemophilia) which he contends rendered the hardship to his dependents sufficiently serious or extreme to warrant them being taken into account by the sentencing Judge. He complains that the sentencing Judge did not have adequate regard to this hardship in imposing the sentence he did.
I accept that the applicant’s family circumstances were sufficiently out of the ordinary, and the consequential hardship to his family as a result of his imprisonment was sufficiently serious, to warrant them having a bearing on the applicant’s sentence. While it is common for there to be difficulty in arranging care for children of an offender who is imprisoned, those difficulties were significantly exacerbated in the present case by the wife’s debilitating migraines (which have been of increasing frequency and duration), and the relatively demanding needs of the two children given their difficulties.

However, the difficulty for the applicant in relation to this ground of appeal is that on the face of the sentencing Judge’s remarks, he took these matters into account. The sentencing Judge introduced the section of his remarks addressing the applicant’s personal circumstances with a reference to the medical reports about the applicant, his wife and his children (at [1]). His Honour later devoted separate paragraphs to the applicant’s leukemia and PTSD (at [5]-[6]), before then noting (at [7]) that the family’s general practitioner had reported that the applicant’s wife and children had particular health problems. His Honour went on in that same paragraph to refer to the applicant’s wife “sometimes suffer[ing] from debilitating migraine headaches”, to his son’s haemophilia (and its implications), and in the next paragraph, to his daughter’s social and behavioural traits consistent with autism spectrum disorder. It can be inferred that the sentencing Judge thus had regard to the hardship to the applicant’s family, both in the head sentence he imposed, as well as the lenient non-parole period that he fixed.
While acknowledging that the sentencing Judge referred to various aspects of the family hardship that he relied upon in challenging the sentence imposed, the applicant’s counsel contended that the limited reference to the wife’s migraines tended to understate the significance of her difficulties in this regard, and their implications for her ability to care for their children (particularly given their own difficulties) while he was in custody.
In support of this contention, counsel relied upon two reports or letters from the family’s general practitioner (dated 20 October 2020 and 23 November 2020 respectively), and an undated letter from the applicant’s wife.
The 20 October 2020 letter from the general practitioner mentioned the wife’s inability to work since May 2019 on account of her ongoing medical conditions, explaining that she “suffers with recurrent and severe migraines and as a single mother if [the applicant] is incarcerated it would make it very difficult for her to look after her two young children.” After mentioning the children’s own difficulties, the letter concluded that the effects of the applicant’s incarceration “would be devastating for his family.”
The 23 November 2020 letter was to similar effect, but elaborated that while the wife had been suffering with “recurrent migraines of a severe nature for a period of time now”, there had been “an increase in the severity and frequency of these debilitating headaches” over the preceding two years (apparently by reason of, or at least coinciding with, the applicant’s leukemia diagnosis and treatment).
As for the wife’s letter, it summarised the various health and related difficulties confronting the applicant’s family. It concluded with the following in relation to her own difficulties:
I suffer from migraines and they usually last for 3 days and most of the time, I have to be admitted to the hospital.
I am very concerned what will happened to the kids when this occurs to me, how will I be able to look after them or who can take them to school or pick them up.
We have tried to apply for a visa for my parents to come to Australia so I would have some help but unfortunately due to Covid19 this is impossible.
I ask you to please consider our families and children’s wellbeing and the impact that this would have in our lives.
In considering the applicant’s submissions, it is important to keep in mind the nature of sentencing remarks. They are intended to convey the factual basis and considerations that have informed the sentencing Judge’s task, and the rationale for the sentence imposed. However, it is desirable that they do so in a succinct and plain manner so as to be understandable to the offender. Given their objective, it is neither necessary nor desirable that they address every matter of detail that might have informed the Judge’s approach. As Wells J said in R v Reiner:[3]
A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not “Reasons for Sentence”); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing.
[3] R v Reiner (1974) 8 SASR 102 at 114; quoted with approval in numerous subsequent cases, including Lane v The Queen [2020] SASCFC 82 at [37].
Here, the Judge’s sentencing remarks made it plain that he had had regard to the hardship to the applicant’s family by reason of his incarceration. His Honour mentioned, and described, the difficulties confronting the wife, daughter and son. While he did not recite all of the detail included in the three documents upon which the applicant’s counsel focused, I do not think it can be said that his Honour overlooked or misunderstood the content of these letters. He expressly referred to those documents (at [1]), and there is nothing in the Judge’s subsequent references to those matters in his sentencing remarks that is inconsistent with, or otherwise suggests that his Honour overlooked or misunderstood, the additional detail that those documents contained.
I am satisfied that the sentencing Judge had regard to the full nature and extent of the family hardship relied upon by the applicant. The precise weight to be attached to this consideration was a matter for the sentencing Judge. Quite properly, the applicant did not contend that the sentence imposed was manifestly excessive. To the extent that a failure to attach appropriate weight to a particular consideration might, in an exceptional case, warrant this Court’s interference, there is nothing in the sentencing remarks in this case to indicate that the sentencing Judge’s discretion miscarried.
Exceptional circumstances warranting suspended sentence
As mentioned at the outset of these reasons, the applicant was being sentenced for a serious and organised crime offence. As such, s 96(3)(c) of the Sentencing Act prevented the suspension of the applicant’s sentence. However, s 96(6)(a) provides that despite s 96(3)(c), “the court may, if satisfied that exceptional circumstances exist for doing so”, suspend the sentence.
As held in R v Skinner,[4] the power to suspend a sentence of imprisonment where “exceptional circumstances” exist involves the exercise of a discretion, and thus any appeal from a refusal to exercise that discretion is subject to the principles of appellate restraint in House v The King.[5]
[4] R v Skinner (2016) 126 SASR 120 at [85]-[86]; approved in R v Yavuz (2018) 130 SASR 231 at [115].
[5] House v The King (1936) 55 CLR 499 at 504-505.
The applicant in the present appeal contends that by reason of his family circumstances (outlined in the preceding section of these reasons), the sentencing Judge erred in failing to accept the applicant’s submission that there were exceptional circumstances warranting suspension of his sentence of imprisonment.
As to what is meant by “exceptional circumstances” in this context, I refer to the discussion of this concept, in the context of the predecessor to the provision presently under consideration, in R v Skinner.[6] In summary, the Court must consider whether, having regard to all of the relevant sentencing considerations in the particular case, there exist exceptional circumstances warranting suspension of the sentence of imprisonment. While Parliament plainly intended that this be a more demanding test than the usual “good reason” to suspend test in s 96(1) of the Sentencing Act, it is difficult to generalise as to what more is required. Perhaps all that can be said is that “exceptional circumstances” connotes circumstances outside of the range of circumstances ordinarily or normally encountered. At the same time, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. The circumstances need not be unprecedented or very rare.
[6] R v Skinner (2016) 126 SASR 120 at [87]-[97]; R v Yavuz (2018) 130 SASR 231 at [113]-[114].
In R v Yavuz,[7] the Court approved what was said on this topic in R v Skinner, but added:[8]
Special or exceptional circumstances are therefore those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.
[7] R v Yavuz (2018) 130 SASR 231.
[8] R v Yavuz (2018) 130 SASR 231 at [115].
As to the type of circumstances that might qualify as exceptional, as explained in R v Skinner:[9]
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[10]
[9] R v Skinner (2016) 126 SASR 120 at [96].
[10] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].
I accept that the family circumstances and hardship relied upon by the applicant in the present case were of a nature and quality that meant that they were potentially capable of giving rise to exceptional circumstances. However, whether they did so in the present case required that they be balanced against all of the other circumstances (and, in particular, the nature and seriousness of the applicant’s offending), and was ultimately a matter within the discretion of the sentencing Judge.
I have earlier set out his Honour’s consideration of whether exceptional circumstances existed. It is apparent from that passage from his Honour’s sentencing remarks that he gave earnest consideration to the issue. In so doing he made express reference to the health and circumstances of the applicant and his family. His Honour ultimately concluded that whilst different from those of many other families of persons imprisoned, the circumstances were not exceptional in the relevant sense.
I am not satisfied that his Honour’s discretion to suspend miscarried. While the hardship to the applicant’s family was sufficiently serious to be relevant to the sentencing task, it did not necessarily follow that it gave rise to “exceptional circumstances” in the sense necessary to warrant an exercise of the sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment pursuant to s 96(6)(a).
I accept that the wife’s ability to care for the children was compromised, and that she did not have support readily available to her. But it was not as though the children were without any parent to support them, and it appeared from the information before the sentencing Judge that they were attending school without any apparent difficulty. While the hardship to the applicant’s family appears to have impacted the term of imprisonment imposed, and the (lenient) non-parole period that his Honour fixed, the Judge was entitled to reject the submission that it gave rise to exceptional circumstances warranting suspension of that sentence when considered in the context of the very serious nature of the applicant’s offending, and Parliament’s intention that suspended sentences not be generally available in respect of offending of this nature.
In my view, it has not been established that the sentencing Judge overlooked any relevant consideration, or that his decision not to suspend was unreasonable or plainly unjust in the relevant sense.
Fresh evidence
Upon being notified of the initial date for delivery of judgment in this matter, the Court was informed that the appellant wished to apply to adduce fresh evidence in support of his appeal. When the matter was called on, counsel for the appellant tendered an affidavit that exhibited a letter from the appellant’s doctor and a letter from his wife. The Court received those documents in order to determine the application to adduce fresh evidence.
Having adjourned to consider the purported fresh evidence, I am not satisfied that the evidence is fresh in the relevant sense, or in any event that it would have made a difference to the outcome of the appeal.
It is true that the report and letter provide some additional detail as to the frequency and severity of the appellant’s wife’s migraines, and their implications for her ability to care for the children. Those documents explain that she has been experiencing migraines on a fortnightly basis, and that they last up to three days.
However, it is not apparent to me why this material could not have been produced at the time of the sentencing hearing, or even at the hearing of the appeal. Further, and in any event, even if this Court were to receive the evidence sought to be relied upon, I do not consider that it would alter the outcome. It is consistent with the evidence already before the Court, and to which regard has been had. It at most adds a bit of detail and colour to the existing evidence, but does not materially alter the position.
For these reasons, I would refuse the application to adduce fresh evidence.
Conclusion
I would refuse the application to adduce fresh evidence, and the application for permission to appeal.
BLEBY JA: I would refuse permission to appeal for the reasons given by Doyle JA.