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Bright v The Queen [2018] ACTCA 39 | Case summary | Zoe

ACTACTCA

Bright v The Queen [2018] ACTCA 39

[2018] ACTCA 39

Court of Appeal (ACT)|2018-09-12|Before: Murrell CJ, Burns and Bromwich JJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2018-09-12

Before

Murrell CJ, Burns and Bromwich JJ

Catchwords

CRIMINAL LAW – Appeal – complaint that mental health issues not
fully taken into account – complaint of poor representation
–
complaint that statement from partner not put before the Court – whether

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – Appeal – complaint that mental health issues notfully taken into account – complaint of poor representation–complaint that statement from partner not put before the Court – whetherthe proposed further evidence should be received– whether the individualsentences or aggregate sentence were manifestly excessive

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Bright v The Queen

Citation: [2018] ACTCA 39

Hearing Date: 15 August 2018

Decision Date: 12 September 2018

Before: Murrell CJ, Burns and Bromwich JJ

Decision: See [27]

Catchwords: CRIMINAL LAW – Appeal – complaint that mental health issues not fully taken into account – complaint of poor representation – complaint that statement from partner not put before the Court – whether the proposed further evidence should be received – whether the individual sentences or aggregate sentence were manifestly excessive Court Procedures Rules 2006 (ACT) r 5606 Legislation Cited: Criminal Code ss 312, 318, 324 Supreme Court Act 1933 (ACT) s 37N(3) Cases Cited: CX v The Queen [2017] ACTCA 37 Dalton v The Queen [2015] ACTCA 48 Fusimalohi v The Queen [2012] ACTCA 49 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Leighton v The Queen [2017] ACTCA 55 R v Aleksovski [2017] ACTSC 163 R v Catania [2017] ACTSC 264 R v Cringle [2018] ACTSC 41 R v Oeti [2018] ACTSC 229 Parties: Warren Douglas Bright (Appellant) The Queen (Respondent)

Representation: Counsel Self-represented (Appellant) Mr J White (Respondent)

21 May 2017 offences 6. At about 3:45am on 21 May 2017 the offender and two unknown males used a Toyota Hilux to ram the rear roller door of the SPAR Rivett supermarket. After gaining entry into the supermarket the offender and the two males stole tobacco and alcohol products to the value of $12,876.96 belonging to the company which ran the supermarket, T2M Group Pty Ltd. They were wearing masks and gloves. Video of the burglars was captured on CCTV. The video shows considerable damage being done inside the supermarket to get hurried access to cigarettes and alcohol. 7. The manager of the supermarket later attended the premises and found that the lock securing the cage blocking access to the roller door had been cut off, that there was considerable damage to the pallets of alcohol positioned behind the damaged roller door, that there was damage to the cool-room door and panels adjacent to the roller door, that security panels to the cigarette and tobacco drawers within the supermarket had been ripped away and cigarettes and loose tobacco littered the floor. The owner of the vehicle that was used to ram the supermarket did not give any permission to the offender or anybody else to use the vehicle on that morning. 8. Police saw the vehicle at 4:45am. After some attempts to avoid police the vehicle ultimately collided with a fence line near Point Hutt crossing. Three males exited the vehicle. One male was not apprehended or identified. The other two were not charged at that stage. 9. The supermarket incurred the following expenses: (a) theft of items $12,876.96 of which $8265.15 was subsequently recovered by police and returned to the supermarket leaving a balance of $4611.81; (b) damage to fixtures and fittings $15,881.80; and (c) damage to stock $12,324.55. 23 May 2017 offences 10. On 23 May 2017 the offender and an unknown co-offender entered the secure car park at a multiunit complex in Leichardt Street Kingston, in the Australian Capital Territory, with the intent to commit theft. Access to the car park had been obtained by following another vehicle when it opened the security gate. This gives rise to a charge of aggravated burglary. The aggravation being that it was burglary in company. Shortly thereafter the offender and his co-offender stole a motorbike belonging to Peter Meaking. The motorcycle was lifted onto a trailer that was then towed by the vehicle used by the offender. This gives rise to the charge of taking a motor vehicle without consent. The offender and co-offender were unable to exit the car park in the ordinary manner and, after making attempts to open the door by cutting the cables that held it in place with a pair of bolt cutters, used their vehicle to ram the security gate to get out. At the time of committing the offences the offender and co-offender were driving a white Lexus which was registered to a person who had not given permission for them to use the vehicle. It had been stolen from a residence in Garran. 11. Police subsequently saw the Lexus in a number of locations. The vehicle entered New South Wales (‘NSW’). It was pursued by NSW police. It stopped at an address in Queanbeyan where the offender and co-offender exited the vehicle. NSW police apprehended the offender after a short pursuit but were unable to apprehend the co-offender. On 26 May 2017 police executed a search warrant at the offender’s address and identified some 33 items as stolen property. 12. The offender was subsequently interviewed by police. He made admissions in relation to the events subject of these charges.

The appellant was represented by a legal practitioner during the sentence proceedings before the primary judge on 26 October 2017. He apparently had some assistance thereafter in filing his notice of appeal, but he was not represented by a legal practitioner for the purpose of preparing his written submissions or making oral submissions during the course of the appeal. In his written submissions the appellant complained that his mental health issues were not fully taken into account in the sentence proceedings. He said that it was difficult to gain access to his mental health records while he was in custody awaiting sentence, and that these records would have demonstrated that he had been treated for many years for anxiety and depression. He submitted that this was relevant because he had been self-medicating with illicit drugs at the time he committed these offences. He further submitted that prison records would have revealed that he had commenced addressing his mental health issues in the AMC.
The appellant’s second complaint was that he was poorly represented in the proceedings leading up to his sentence hearing, in that he had three different lawyers assigned to him during that period, causing a degree of confusion in the preparation of those proceedings. He stated that the lawyer who represented him in the sentence proceedings told him that the sentence was manifestly excessive, before subsequently withdrawing as his legal representative. He submitted that this was another indicator that he was poorly represented during the sentence proceedings.
The appellant further complained that a statement from his partner was not put before the Court to indicate how a custodial sentence would affect her, which was further proof that he was poorly represented. In the proceedings before us the appellant sought to tender a statement from his partner which speaks of the difficulties she has encountered since he has been imprisoned. She says that their child is no longer in her care due to her drug abuse and the appellant being in prison. She speaks of emotional difficulties she has suffered due to the absence of the appellant. She also speaks of her commitment to address her drug addiction and to reform herself so that she, the appellant and their child can once more be a fully functioning family. She expresses the belief that the appellant’s continued imprisonment affects both of their prospects for rehabilitation. In addition, she says that if the appellant were released from prison he could assist with certain medical conditions from which she suffers, and that the absence of the appellant places her under a degree of stress.

This Court may receive further evidence in an appeal pursuant to s 37N(3) of the Supreme Court Act 1933 (ACT). The appellant did not comply with r 5606 of the Court Procedures Rules 2006 (ACT) by filing an application and an affidavit in support setting out the grounds for the application to adduce further evidence, but the Crown did not take issue with that in the course of the appeal.
It is not clear on the face of the letter from the appellant’s partner, which he seeks to put before this Court whether that letter was prepared prior to the sentence proceedings or after. As such, it is not clear whether it is properly to be considered to be fresh evidence, or whether it is appropriately to be described as further evidence. We are, nevertheless, satisfied that nothing turns upon the distinction in this case. The principles relating to adducing further or fresh evidence on an appeal were recently considered by this Court in Leighton v The Queen [2017] ACTCA 55 (Leighton) at [23] to [24]:
First, the principles which apply to resolution of an application to adduce further evidence on appeal as permitted by s 37N(3) of the Supreme Court Act 1933 (ACT) were recently re-stated in Jovanovic v The Queen [2015] ACTCA 29 in these terms: 22. Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164]. 23. As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed: The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result. At [119] the Court further explained: ...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result. (citations omitted) 24. In Browne v The Queen [2006] ACTCA 15 the following points of principle were also made (at [8]-[14]) which are relevant to Mr Leighton’s application: 8. In CDJ v VAJ (1998) 197 CLR 172, the court was of the view that the common law provisions, which very significantly restricted the use of fresh evidence on appeal, were not restricted when there were statutory provisions governing its acceptance. The High Court took the view that the restrictions contained in the court’s earlier decision of the Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 were not necessarily applicable where there was statutory authority to receive fresh evidence. However, in CDJ the majority of the High Court, McHugh, Gummow and Callinan JJ, at [111], did place some restrictions on the use of such material when they said: ... Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) [a statutory equivalent of s 37N cited above] should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. It should be noted that this case was a Family Law Act appeal involving children, where there is an over-riding statutory requirement to act in the best interests of the child. 9. Further, the court went on to say (at [113]): In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of [the equivalent section]. 10. Stress has been laid in subsequent decisions of appellate courts, such as the decision of the Full Court of the Federal Court in Guss v Johnstone [2000] FCA 1455, that an appellate court needs to be satisfied that such evidence would be likely to have produced a different result had it been available at the trial. … 11. In R v Fordham (1997) 98 A Crim R 359, the New South Wales Court of Criminal Appeal made the point that fresh or new evidence would only be received by that court if it were shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. It was said by the court, Howie AJ, with whom Hunt CJ at CL and Smart J agreed, at 377: As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. 12. Furthermore, the Court would need to be satisfied with the explanation offered for the evidence not having been put forward at the trial. Whilst the common law rules are not applicable so as to fetter the Court’s discretion, they will continue to provide useful guidance as to this aspect. There is no indication that the necessity to spell out the powers of the Court of Appeal upon the establishment of this Court involved any intention to alter the well-established rules for the conduct of criminal appeals. 13. A case which might be said to bear some similarity to the present is that of R v Goodwin (1990) 51 A Crim R 328 where Hunt J (as he then was), with whom Grove J agreed, said that with specific reference to sentencing appeals for the admission of fresh evidence: What must be established is: (1) that the additional material sought to be put before this court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings. 14. Although this was a decision before CDJ, it is not inconsistent with the principles expressed in that case and, in the case of sentencing appeals, offers a useful rule of thumb in assessing whether such evidence should be admitted …
In refusing the application to lead further evidence in Leighton, this Court said at [29]:
Otherwise, it is relevant that Mr Leighton was legally represented for the hearing on sentence. He was aware of and accepted the accuracy of the Statement of Facts. For the further evidence to be admitted in the present case would be inconsistent with the nature of appellate review. A trial is not a rehearsal for an appeal. Unless the appellate court can be satisfied that admission of the further evidence is in the interests of justice, the evidence should not be permitted to be relied upon in the appeal. In the circumstances of the present case, we would need to be satisfied that there was a real prospect that the further evidence would have led to a different sentence before we would grant leave for the further evidence to be received. As we consider that the further evidence, to the extent that it was not already before and considered by the primary judge, could not have made any difference to the overall sentence and non-parole period imposed, leave has to be refused.
In the course of the sentence proceedings, the appellant’s lawyer tendered a number of documents including a letter from the appellant’s partner. In that letter she spoke of the appellant having struggled emotionally since the death of his father and brother, resulting in his abuse of illicit drugs. She stated that the appellant had also found it difficult not having contact with his son from a prior relationship. She also referred to the fact that her son from her relationship with the appellant had been taken from her and placed into care on the day the appellant was arrested. She expressed the opinion that since being placed in custody the appellant had changed, and had expressed remorse for what he had done. She said that he was positive about his rehabilitation in order to better himself for his family.
The letter from the appellant’s partner which was tendered in the sentence proceedings was not as lengthy as that which he now seeks to tender in the appeal proceedings. It would also be fair to say that the letter tendered in the sentence proceedings does not address some of the matters which are referred to by his partner in the letter that he now seeks to rely upon. It is also fair to observe, we believe, that to the extent that the letter the appellant now proposes to tender deals with issues not canvassed in the letter before the sentencing judge, such as his partner’s health and emotional difficulties, that material would not have been likely to have produced a different result had it been placed before the sentencing judge. The material relating to the appellant’s partner’s health conditions is particularly vague, and is unsupported by any independent medical evidence. To the extent that his partner expresses emotional difficulties as a consequence of the appellant’s imprisonment, there is nothing in that material to suggest that this is anything more than one would expect any person to feel upon the imprisonment of their partner. Imprisonment almost inevitably leads to hardship both for the prisoner and also for their family. The fact that a prisoner’s family feels the normal and expected effects of the imprisonment is no basis for interfering with a proper exercise of the sentencing discretion.
In our opinion, the proposed further evidence should not be received because it would have made no difference to the sentences imposed on the appellant, and would make no difference to the outcome of this appeal.

With regard to the appellant’s complaint that his mental health issues were not fully taken into account, the primary judge had before him at the time of sentencing a Pre-Sentence Report dated 16 October 2017 and a report from the Court Alcohol and Drug Assessment Service (CADAS) dated 25 October 2017. The Pre-Sentence Report refers to the appellant having engaged with grief counselling at the Winnunga Nimmityiah Aboriginal Health Service (Winnunga) after the death of his brother, but stated that records from that service indicated the appellant’s attendance was intermittent. The Report also noted that the appellant had reported ceasing his mental health medication three months prior to his current period of incarceration, and instead used illicit substances to self-medicate. Records from the AMC indicated that the appellant presented with suicidal ideation during his present period of incarceration. The appellant told the author of the report that he had commenced a mental health medication regime in August 2017 and that a mental health treatment plan was in place.
The CADAS report stated that the appellant advised that he was being treated for anxiety and depression in custody. The author of the report stated that the appellant had said that engaging with treatment interventions had supported him to develop improved skills for managing anxiety, depression and other difficult emotions.
In his sentencing remarks, the primary judge referred to the contents of the Pre-Sentence Report and the CADAS report regarding the appellant’s mental health. His remarks in that regard were neither detailed nor lengthy, as the material before him regarding that issue was quite scant. There is nothing in the sentencing remarks to suggest that the primary judge did not accept that the appellant had a history of anxiety and depression. There is nothing before this Court to suggest that any records which could have been produced from Winnunga concerning the appellant’s mental health history and his treatment by that service would have added substantially to the material before the primary judge and, in particular, would have warranted a different outcome.

The primary judge assessed the objective seriousness of the offence of aggravated burglary committed on 21 May 2017 as “in the mid-to-upper range”. In making that assessment, his Honour had regard to the planned and deliberate nature of the offence, and the significant amount of property damage involved in the offence. The sentence imposed, 23 months’ imprisonment, was less than 10 per cent of the maximum available penalty of 20 years’ imprisonment. With regard to the offence of theft on the same day, the primary judge considered the deliberate and planned nature of the offence as well as the value of the items stolen. His Honour assessed the objective seriousness of this offence as in the mid-to-upper range. The sentence of 18 months’ imprisonment imposed was 15 per cent of the maximum available penalty of 10 years’ imprisonment. The offence of riding in a motor vehicle without consent on the same day was assessed by the primary judge as falling in the mid-range of objective seriousness of such offences. In reaching that conclusion the primary judge considered that it was an aggravating feature that the vehicle had been used for the purposes of further offending. The sentence of seven months’ imprisonment imposed was less than 12 per cent of the available maximum penalty of five years’ imprisonment. The sentences imposed for this series of offences were structured in such a way that the appellant was liable to serve an aggregate sentence of two years and three months’ imprisonment commencing on 26 May 2017 and expiring on 25 August 2019.
With regard to the offences of 23 May 2017, the primary judge assessed the objective seriousness of the aggravated burglary offence as being at the low-to-mid range of objective seriousness. In forming this assessment he took into account that the appellant did not force entry into the premises where the burglary occurred and that the premises did not form part of anyone’s home. The primary judge did take into account the fact that the premises were vulnerable to criminal activity, and imposed a sentence of 14 months’ imprisonment. The maximum penalty available for that offence was 20 years’ imprisonment, so that the sentence imposed was less than 6 per cent of the maximum penalty available. The primary judge assessed the offence of taking a motorcycle on the same day at the low to mid-range of objective seriousness of such offences. In doing so he took into account the value of the item which was taken. The sentence imposed of seven months’ imprisonment was less than 12 per cent of the maximum available for this offence. A sentence of seven months’ imprisonment was also imposed for the offence of riding in a motor vehicle without consent on the same day, an offence which also carries a maximum penalty of 5 years’ imprisonment.
The sentences imposed by the primary judge with regard to the offences of 23 May 2017 were structured in such a way that the appellant was liable to serve an aggregate period of 18 months’ imprisonment commencing on 26 August 2019 and expiring on 25 February 2021.
It will be apparent from the above, and from the schedule at [1] above, that the sentences imposed for the offences of 23 May 2017 were wholly consecutive upon the sentences imposed for the offences of 21 May 2017. The offences of 21 May and 23 May 2017 were separate instances of criminal offending such that there is no compelling reason, other than the application of the principle of totality, to make the sentences concurrent or partially concurrent. It will be observed that within each of the series of offences the primary judge allowed significant concurrency between the sentences for individual offences.
We note that the appellant’s counsel conceded before the primary judge that a term of imprisonment was warranted for this offending. On the face of it, the sentences imposed by the primary judge for each offence would appear to be clearly within the proper exercise of his sentencing discretion. Similarly, the degree of concurrency of individual offences within each series of offences would also appear to be clearly within the proper exercise of the primary judge’s sentencing discretion. Before us, the appellant submitted that he had not previously been convicted of similar offences and that the sentences imposed upon him were harsher than sentences that had previously been imposed by the primary judge on other offenders with regard to similar offending, citing the cases of R v Aleksovski [2017] ACTSC 163, R v Oeti [2018] ACTSC 229, R v Cringle [2018] ACTSC 41 and R v Catania [2017] ACTSC 264. It is apposite to restate a number of fundamental propositions. First, there is no single, correct sentence for offences of burglary or aggravated burglary or, indeed, any of the offences upon which the appellant was sentenced, and the fact that other offenders may have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive: Fusimalohi v The Queen [2012] ACTCA 49 per Burns and Lander JJ at [15]. Secondly, while consistency in sentencing is desirable, it is consistency of application of principle which must be demonstrated, not numerical consistency between the sentences imposed on different offenders: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520.
The appellant has a lengthy criminal history, both in the Australian Capital Territory (ACT) and in New South Wales. He was not, however, previously recorded for offences of burglary or theft. The majority of his prior offences were traffic offences, although he has some convictions for matters of dishonesty and violence. The New South Wales criminal history before the primary judge suggests that there is an outstanding charge of being carried in a conveyance taken without the consent of the owner in that state, which presumably has not been dealt with as it is alleged that the offence occurred on 23 May 2017 and the appellant has been in custody in the ACT since 26 May 2017. As the New South Wales charge has apparently not been finalised, we will not take it into account for present purposes. There is, therefore, no prior conviction recorded against the appellant for the unlawful taking or using of a motor vehicle. The appellant nevertheless had a lengthy criminal history which disentitled him to any significant leniency in the proceedings before the primary judge. The offences before the primary judge revealed an escalation in the number and seriousness of criminal offending by the appellant. This would ordinarily demonstrate a need for greater weight to be given to punishment and specific deterrence as sentencing considerations. It is also important to acknowledge that the appellant was subject to numerous Good Behaviour Orders at the time he committed these offences.
The primary judge took into account the appellant’s subjective features, and balanced the need for punishment/deterrence with the need for rehabilitation by providing a non-parole period of just over half of the aggregate sentence. In determining the extent to which the individual sentences were to be served concurrently, consecutively or partly concurrent and partly consecutive, the primary judge clearly considered the need to impose an aggregate sentence which reflected the totality of the appellant’s offending.
In our opinion neither the individual sentences imposed by the primary judge nor the aggregate sentence have been demonstrated to be manifestly excessive, and the appeal should be dismissed.