Browne v R [2006] ACTCA 15

Court of Appeal (ACT)|2006-08-17|Before: Gyles JJ, Crispin J

1. Rebecca Louise Browne appeals against a sentence imposed upon her in respect of five charges of theft and in respect of which a further 89 offences of theft were taken into account. The offences took place between September 1999 and October 2000. On 13 July 2006, Crispin J sentenced the appellant to imprisonment for two years on each of the five charges before him but ordered that the sentence that he imposed on each charge be served partly concurrently with and cumulative upon that which he imposed on each charge. He did this by commencing each sentence successive to the first at three monthly intervals. The total effect was a sentence of three years imprisonment. He fixed a non-parole period of six months.

2. The offences all took place at a time when the appellant was employed as an accounts clerk. As a consequence of the thefts, the company which employed her suffered extensive losses and the subsequent hardship that results to a relatively small enterprise occasioned by losses of the magnitude involved here.

3. The offences involved a serious breach of trust and a constant pattern of dishonesty over the time charged. The loss occasioned was substantial both by reason of what was taken at the time and expense incurred by the company and its directors as a consequence. The proceeds of the criminal activity were dissipated by the appellant's addiction to gambling.

5. The grounds set out in the appellant's notice of appeal are as follows:

1. the appellant did not provide informed instructions to her counsel to enter and to maintain a plea of guilty in respect of all of the offences Scheduled to the Indictment and does not admit that the total amount of money stolen by her was $215,028.63, but does admit to stealing an amount of approximately $140,000.00 only.

2. matters relevant to the sentence were not presented to the Court or were inadequately and incompletely presented to the Court and by reason thereof the Court was led into error:

A. evidence of the appellant's early admission of guilt and co-operation with police;

B. evidence that the delay between the date of the offences and the entry of a plea of guilty on 9th May 2006 was not due to the appellant's refusal to co-operate with the investigating police;

B. [sic] evidence of the appellant's co-operation with the investigation police officer and her employer in investigating the offences and the identification of how the offences were committed and of the amounts of money stolen;

C. psychiatric evidence of the appellant's mental condition at the time of the offences;

D. psychiatric evidence of the appellant's condition at the date of sentence;

E. evidence relating to the rehabilitation of the appellant;

F. evidence relating to the appellant's attempts to re-pay the stolen money;

G. psychiatric evidence relating to the appellant's mental condition during the police investigation and her fitness to be interviewed at various times during that investigation;

3. the sentence imposed was manifestly excessive in the circumstances.

6. The notice of appeal also gave notice of what can only be described as a broad ranging application to place further evidence before the court. Particulars were given which, in their scope, if this court acceded to the application, would have required this court to conduct its function by rehearing the sentence as if it were the court at first instance. As it turned out, Mr Thomas conceded that a number of the topics that the additional evidence sought to canvass could only be admitted if he made good the justification for putting before this court the additional material in but three areas that he submitted would have been of real significance in the sentencing judge's consideration of the matter.

The principles concerning the admission of fresh evidence on appeal

7. The court's reception of further evidence on appeal is governed by s 37N of the Supreme Court Act 1933 (ACT). That section provides:

(1) The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose.

(2) The Court of Appeal may draw inferences of fact from that evidence.

(3) The Court of Appeal may receive further evidence in any of the following ways:

(a) by oral examination before the court or a judge;

(b) on affidavit;

(c) by audiovisual link or audio link;

(d) any other way the court may receive evidence.

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] HCA 16; (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. (See [30])

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:

(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. It is against this background that the application to admit additional evidence is to be judged.

15. As we have said, there were three factors that Mr Thomas concentrated upon in suggesting that the fresh evidence that he sought to adduce would be significant. The first of these was the rehabilitation factor. It was his submission that there was material that should have been adduced before the sentencing judge in respect of this aspect. The evidence primarily sought to be adduced on the appeal comprised a recent report of Dr L Nomchong, a psychologist and a further supplementary report of Dr F H Lowden, a psychiatrist. The sentencing judge had before him a full and comprehensive report from Dr Lowden which gave a very detailed assessment of the appellant's psychiatric condition. Dr Lowden had in fact seen the appellant at an early stage subsequent to the commission of the offences with which the sentencing judge was concerned. She saw her on a number of occasions between November 2000 and May 2006. Her report was dated 19 June 2006, a very short time before the sentencing proceedings took place. Her report is comprehensive and sets out properly all the matters that could be considered by the sentencing judge for the purposes of the sentencing proceeding. The suggestion that she can further elaborate on her opinions is not matched by any indication that what she said in her report did not fairly put before the sentencing judge that which he should have before him. In addition, the sentencing judge had the benefit of a comprehensive report by way of a pre-sentence report from ACT Corrective Services. The additional material is not of such significance that it can be said that as far as the sentencing judge is concerned, it could have any real bearing upon his decision. There can be no justification for admitting on the hearing of this appeal further evidence on this aspect.

The appellant's attitude in the context of the delay in bringing proceedings

16. Mr Thomas' primary submission was that there was not sufficient material before the sentencing judge for him to properly assess the appellant's apparent cooperation with the police. It was never an issue in the sentencing proceedings that the appellant had admitted her confession of the commission of offences and that this brought about police involvement. There was a significantly long period of time between this event and the laying of charges in January 2005. Why this was so is not entirely clear but it was the prosecution case that, as far as the directors of the company were concerned (the ultimate victims), the appellant had not cooperated with them in order to enable them to determine the extent of the defalcations. The sentencing judge was referred to the victim impact statement of one of the directors which put the view that the appellant did not cooperate with the directors' investigations even though she said she would; that significant paperwork had to be reconstructed; that they believed that documents had been destroyed by the appellant; that they received no assistance from the appellant; and, generally, that the investigation of these matters was made more difficult as a consequence of the appellant's attitude.

17. The written outline of submissions on behalf of the appellant is to the contrary and asserts that the appellant voluntarily attended upon the investigating police and assisted them and her employer in identifying the amount of money stolen and the method she had used to steal it. If the extent of the appellant's cooperation with her employer was a live issue before the sentencing judge, it should have resulted in a disputed facts hearing. The eventual outcome of such a hearing would, more than likely, have not assisted the appellant in the sentencing hearing. Further, there is enough in the material with which this court was provided to suggest that the appellant's confession in relation to the offence was anything other than inevitable in the circumstances and that her cooperation was only that of self interest in minimising the extent of her defalcations.

18. There is no doubt that there was delay before his Honour came to sentence the appellant. However, in this regard his Honour did not refer to the situation as to the extent of the appellant's cooperation but rather gave her credit with respect to the delay in the following way. His Honour said this:

It is, I think, also appropriate to take into account the delay in the bringing of this matter to court. That is relevant in a number of ways. Firstly, it is important to note that she has taken the initiative in that period to obtain treatment for her illness. The underlying problems being diagnosed and she has been involved in a sustained pattern of psychotherapy and other treatment.

While she has not apparently made any attempt to repay those who she stole money from, that is a factor which must be balanced against some other considerations to which I have referred. She has conscientiously repaid other debts and has expressed a desire to now attempt to make some repayments of the amount taken.

I accept that that expression of intention is sincere, though I have real reservations as to the extent to which she is likely to be able to do so in the foreseeable future. And some doubts as to whether that resolve will ultimately be sustained. She has also embarked upon a further course of study. Furthermore, it is, I think, important to note that she has already suffered throughout that period of time by reason of her anxiety and the inevitability of these charges being brought and the consequences that might ensue.

As she said in conversations with the author of the pre-sentence report, her life has, in a very real sense, been on hold for five years. It is also, I think, relevant to take into account the fact that this woman needs further psychiatric treatment and there is a risk that any significant - any substantial period of imprisonment might disrupt the progress that's already been made.

19. The fact that his Honour did not advert to the submissions put by the prosecutor as to the lack of cooperation with the victims of her offences, leads only to the conclusion that she received perhaps a more favourable view of her conduct than would have otherwise been open to the sentencing judge had that issue been the subject of a dispute. In every other respect, she was favoured by the view that the sentencing judge took as to the effect of delay between the time that the offences came to light and the laying of charges. In any event, there is no satisfactory explanation for all material not having been provided to the sentencing judge. There is no occasion to receive further evidence on this aspect.

20. The five matters charged on the indictment are in a sum amounting to $11,730.47. The 89 matters taken into account pursuant to s 357 of the Crimes Act 1900 (ACT) amount to $208,298.16. It is now asserted that the appellant does not accept that the extent of her defalcation exceeded $140,000.00. No calculations are provided to support that assertion nor are any of the particularised matters on the s 357 schedule identified as being in dispute. The appellant, on 12 July 2006, signed off on the matters scheduled. Without more, it cannot be a matter of contest concerning those matters that the appellant now should be permitted to raise. Nor is it suggested that any material, other than the appellant's bare assertion of what she regards as her position, can be placed before this court. The suggestion that this assertion by way of evidence should now be permitted to be made before this court must be rejected.

21. The application to adduce evidence in relation to each of the above matters must be rejected as must be the application to adduce evidence on the other topics which generally concern the sentence proceedings. The court, at the conclusion of the hearing of this matter, accordingly, refused leave to do so. Upon that refusal, the appellant was not able to add any further submissions in support of her appeal. As a consequence, the court dismissed the appeal.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Trevor Barker & Associates

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (1)

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