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[1996] QCA 242
appellant. Application granted; appeal allowed; sentences imposed below set aside. In lieu, subject to applicant's consent, orders that the applicant be released under supervision of an authorised corrective...
The Court of Appeal allowed an application to appeal the applicant's sentences for stalking. The Court held it could admit psychiatric and psychological reports obtained after sentencing because those reports showed the applicant's condition at the time of sentencing (including that he had been sexually assaulted in custody and faced an exceptional suicide risk if imprisoned). The Court confined the earlier decision in R v Cornale to changes in law, not factual matters, and exercised its discretion to admit the reports. Finding the original custodial sentences manifestly excessive in the circumstances, the Court set them aside and, with the applicant's consent, substituted three-year supervised community orders with treatment and programme conditions and recorded convictions.
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Darios Athanasios Maniadis (the applicant) pleaded guilty in the District Court at Ipswich to two counts of stalking with circumstances of aggravation. The offending conduct was a series of 24 obscene and, in some instances, threatening telephone calls made in January–February 1995. On 17 November 1995 the sentencing judge imposed a term of imprisonment of six months on each count, and a further three years probation with conditions (including psychiatric/psychological counselling and treatment as directed). The applicant was 21 at the time and had one earlier conviction (March 1992) for an assault that had resulted in two years probation and community service. He had also spent approximately one month in custody in July 1995 for breach of bail.
After the District Court sentence, psychiatric and psychological reports were obtained: two reports by Dr Fong (Community Forensic Mental Health Service), a report by Dr Fama (consultant psychiatrist), and a report by Ms Lennon (research psychologist). None of these reports had been before the sentencing judge. The applicant sought to tender those reports on an application for leave to appeal against sentence, relying on the material in them to show (a) that he was at high risk of suicide if sent to prison because he had been sexually assaulted in custody in July 1995, and (b) that he was suffering a depressive illness around the time of the offending and sentencing.
The respondent opposed admission of the reports. The Court of Appeal (Davies J.A. and Helman J.; Fitzgerald P. concurring) considered the admissibility question and the proper construction and ambit of s 668E(3) of the Criminal Code. It requested, conditionally upon admission of the reports, additional reports from Corrective Services addressing treatment options in and out of custody and the likely effectiveness of programmes.
The Court admitted the post-sentence evidence (accepting, in particular, the hearsay but uncontradicted evidence that the applicant had been sexually assaulted in custody and that, in consequence, he suffered an irrational fear of imprisonment with an exceptionally high suicide risk). Having regard to the applicant's youth, his remorse, his psychiatric condition and the better prospects for monitoring and treatment in the community, the Court concluded the original custodial sentences were manifestly excessive. The Court allowed the appeal, set aside the sentences and (subject to the applicant's consent) substituted orders for supervised release under corrective services for three years with specified conditions (reporting, treatment, counselling, restrictions on travel, and compliance with directions). Convictions were recorded.
Two central legal questions drove the outcome.
First, could the Court admit evidence produced after sentence? The Court examined s 668E(3) (the power to quash a sentence and pass another) in the light of appellate practice on fresh evidence in appeals against conviction, notably the High Court’s reasoning in Ratten, and decided that the discretion to admit evidence not adduced below is at least as wide on an appeal against sentence as on an appeal against conviction. The Court emphasised that admission would not be common, but accepted that evidence discovered after sentence may be admitted if it shows the true state of affairs at the time the sentence was imposed and, crucially, if admitting or excluding it bears on whether a different sentence is warranted or whether there would be a miscarriage of justice.
Second, did the decision in R v Cornale prevent the Court from substituting a sentence that could not lawfully have been imposed at the time of sentence? The Court read Cornale narrowly: its ratio is confined to changes in the law between sentencing and appeal, and does not prevent consideration of post-sentence factual evidence that demonstrates what the position was at the time of sentence. The Court anchored this interpretive approach in the ordinary non-retrospectivity principle for penal measures (citing Maxwell v Murphy and Fisher v Hebburn as authorities for avoiding retrospective operation unless clearly intended).
Applying those principles to the particular reports, the Court accepted the uncontradicted, though hearsay, evidence that a sexual assault occurred while the applicant was in custody in July 1995. That event, together with expert opinion, showed an exceptional psychiatric risk if the applicant were imprisoned again. The psychiatric evidence also supported the view that community-based treatment provided better prospects for rehabilitation and risk management. Balancing these factors against the public protection concern (some risk of future offending, perhaps of sexual nature), the Court concluded that the original sentences were manifestly excessive and that a community-based supervisory order with strict conditions better served the purposes of sentencing in the circumstances.
Fitzgerald P. expressly agreed with the joint reasons and reiterated the confined reading of Cornale and the exercise of the discretion in the interests of justice.
Before Maniadis there were established principles in two domains:
Fresh evidence on appeal: Ratten (High Court) set the framework for when appellate courts may receive evidence not available at trial, notably evidence that could produce a different verdict, or evidence which, though not fresh, could show innocence or establish reasonable doubt. Authorities also indicated appellate courts might admit new evidence on sentence appeals in exceptional circumstances (see cases cited in the reasons, e.g. R v Lanham; R v Brett).
Non-retrospectivity of penal legislation: It was a settled canon that penal statutes increasing punishment should not be given retrospective effect unless the statute clearly so provides (Maxwell v Murphy; Fisher v Hebburn). The Court of Appeal in Cornale had held that s 668E(3) could not be used to impose a sentence that had only become available after the original sentencing because that would effect a retrospective change in law.
Maniadis clarifies the law in two ways:
It affirms that appellate courts have, in appeals against sentence, a discretion comparable to that in appeals against conviction to admit post-sentence evidence where that evidence shows the state of affairs at the time of sentencing and leads to the view that another sentence should have been passed. Maniadis therefore broadens the practical scope for admission of post-sentence factual material in sentencing appeals, subject to the interests-of-justice test.
It confines Cornale. Maniadis treats Cornale as directed at changes of law between sentencing and appeal, not as a bar to receiving factual material occurring after sentence which bears on the position at the time of sentencing. The result is a more permissive posture towards post-sentence factual evidence, provided the evidence is relevant to what the position was at sentencing and exclusion would risk a miscarriage of justice.
Thus after Maniadis, a litigant seeking to rely on post-sentence factual or medical material on appeal against sentence has a clearer route: show that the material demonstrates the state of affairs at the time of sentence and that its exclusion would produce a miscarriage of justice (or that it makes clear the original sentence was manifestly excessive).
"The power to admit evidence not adduced below appears to be at least as wide in an appeal against sentence as in an appeal against conviction." (joint reasons)
Plain English: The Court has the ability, in sentencing appeals, to accept new evidence much as it can in appeals against conviction; the scope is comparable.
"Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed."
Plain English: New facts that happen after sentencing normally will not justify changing the sentence, except when they reveal what the situation really was when the judge sentenced the offender.
"The reports of Dr. Fong and Ms. Lennon ... support a conclusion that ... this assault engendered in him an irrational fear of prison causing an exceptionally high risk of suicide if he is sent to prison again."
Plain English: The Court accepted expert material (though hearsay) that the applicant had been sexually assaulted in custody and that, because of his psychiatric condition, sending him back to prison would likely put his life at risk.
"We think that the appropriate sentence should be one which does not involve his serving a term of actual imprisonment but which ensures, as long as possible consistently with the need for it, his continued treatment."
Plain English: Given all the evidence, the Court decided a non-custodial sentence focused on treatment was more appropriate than another short term in prison.
Maniadis is engaged where:
Post-sentence material is discovered that was not before the sentencing judge (for example, psychiatric reports obtained after sentence; evidence of assault suffered in custody; new medical data).
The post-sentence material tends to show the offender's condition or circumstances at the time of sentencing (for example, that the offender was suffering a severe psychiatric illness or had been subjected to events before sentence that dramatically change the risk profile of a custodial order).
The newly adduced evidence bears directly on whether the original sentence was manifestly excessive or constitutes a miscarriage of justice if left unconsidered.
There is no clear evidence that the offender or their advisers deliberately suppressed the material at the sentencing hearing; if the appellant knew and withheld the material, admission will normally be refused.
Maniadis is less likely to help where the new material relates solely to events after sentencing that do not illuminate the position at the time of sentencing, or where the appellant or counsel had the material but deliberately withheld it.
Within the reasons, Maniadis situates itself against earlier authorities:
The Court confines R v Cornale to changes in law; Cornale does not stand for a broader bar on considering post-sentence factual material.
The Court expressly declines to follow the stricter approach in Goodwin (NSWCCA), which sought to impose two mandatory conditions on admissibility of post-sentence evidence (that the appellant did not realise the significance and that the appellant's lawyers did not know of it). Maniadis treats those matters as usually but not invariably decisive and leaves the ultimate test to the miscarriage-of-justice inquiry.
Maniadis cites Ratten to import the general approach to fresh evidence from appeals against conviction into the sentencing appeal context.
The decision therefore endorses a flexible, discretionary approach rather than bright-line rules, and it signals to later courts that post-sentence factual evidence may be admitted where fairness and the interests of justice require it.
Margin of discretion: Maniadis explains the principles but affirms that the discretion to admit post-sentence evidence will not be commonly exercised. It leaves open exactly how appellate courts should weigh competing considerations in marginal cases, for example, how to balance public protection where post-sentence evidence militates against custody but indicates some ongoing risk.
Deliberate withholding: Maniadis indicates withheld known evidence will generally be excluded but does not fix an exhaustive test for deliberate non-disclosure or for degrees of culpability by appellant or counsel. Questions remain about what must be proved to establish deliberate withholding and how courts should treat borderline situations.
Standard for "manifestly excessive": Maniadis applied the manifest-excess ground, but practical guidance on how much new evidence is required to establish that a custodial sentence was manifestly excessive (versus merely arguable) is not exhaustively developed.
Interaction with legislative amendments: Maniadis confines Cornale to changes in law as at the appeal date; there remains potential complexity where legislative amendments, policy changes or new sentencing regimes are introduced after sentence but before appeal. Maniadis provides the confinement but not a comprehensive framework for all such permutations.
These points invite refinement in future appellate decisions.
This analysis explains what the Court said and how it reached its decision in R v Maniadis [1996] QCA 242. It is general legal information only, not legal advice. I can make mistakes; before you act on, rely on, or use any part of this analysis or any draft derived from it, get a qualified Australian lawyer to check it.
The applicant had one previous conviction, on 25 March 1992, for assault. That offence involved threatening with a knife a 28 year old woman pushing a pram containing her 18 month old child and trying to force her to go into an area of bushland. He was sentenced to two years probation for that offence and ordered to serve 120 hours community service. In July 1995 the applicant served approximately one month in prison for a breach of his bail conditions in respect of the stalking charges.
Upon the hearing of this appeal counsel for the applicant sought to tender psychiatric and psychological reports concerning the applicant. They consisted of two reports of Dr. Fong, a senior medical officer in the Community Forensic Mental Health Service dated 30 January and 28 February 1996, a report of Dr. Fama, a consultant psychiatrist, dated 7 February 1996 and a report from Ms. Lennon, a research psychologist, dated 22 November 1995. No psychiatric or psychological evidence had been tendered before the learned sentencing Judge and it was frankly acknowledged on behalf of the applicant that, without this evidence the appeal must fail; that on the evidence before the learned sentencing Judge this Court could not interfere with the sentences imposed.
The applicant submitted that these reports indicated his psychological state at the time of the sentence. It was submitted that they were relevant in two ways. First they showed that, at the time of sentence, the applicant was so deeply depressed at the prospect of imprisonment that he was potentially at risk of committing suicide. Secondly, it was said, they showed that he was suffering from depression at the time he committed the stalking offences. The respondent opposes the introduction of this evidence and its reception is therefore the first question which must be resolved in this application.
During the course of argument the Court suggested that it might be helped by a pre-sentence report if the above evidence became admissible and if, after considering it, it became necessary to consider what sentencing options were open. With the consent of the parties the Court then requested the Corrective Services Commission to cause to be prepared and submitted to the Court the following reports, conditionally upon the admission of the above evidence and the consequent need to consider sentencing options:
1. A report by a psychiatrist other than Doctors J. Fong and P. Fama upon the following matters:
a) given the psychiatric condition of Darios Athanasios Maniadis, the types of psychiatric treatment that could be provided to him:-
b) an opinion upon the likely effectiveness of all of the abovementioned forms of treatment.
2. A report by a Community Corrections Officer upon the following matters:
a) given the nature of the offences committed by Darios Athanasios Maniadis, the programmes, counselling or other rehabilitative measures that could be adopted in relation to him:-
b) an opinion upon the likely effectiveness of such programmes, counselling, etc.
Section 668E(3) of the Criminal Code states the power of this Court on appeal to quash a sentence and pass another in its stead. For reasons which we shall mention shortly, that provision should be construed in the context which includes sub-s.(1) which deals with appeals against conviction. Section 668E relevantly provides:
" (1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
The effect of sub-s.(1) has been authoritatively decided by the High Court in Ratten v. The Queen[1]. There the court decided that, pursuant to an analogue of that sub-section, an appellate court:
(1) may order a new trial where fresh evidence (that is evidence which was not actually available to the appellant at the time of trial and which could not then have been available to him by the exercise on his part of reasonable diligence in the preparation of his case) was capable of being accepted by the jury and, if accepted, was likely to produce a different verdict; and
(2) may admit relevant and credible new evidence, notwithstanding that it is not fresh in the above sense, if the court is satisfied, on the basis of that evidence, that the guilty verdict should be set aside either because it is satisfied that innocence is shown or because the existence of a reasonable doubt is established.
Subject to what we say later about the decision of this Court in R. v. Cornale[2] the power to admit evidence not adduced below appears to be at least as wide in an appeal against sentence as in an appeal against conviction. In an appeal against conviction the grounds of unreasonableness, that the evidence did not support the verdict and error of law all appear to relate to a verdict upon the evidence adduced at trial and the law existing at the time of trial. Only the ground of miscarriage of justice appears to allow the admission of evidence not adduced at trial. The sole ground in sub-s.(3) that some other sentence is warranted appears to allow at least the same latitude to an appellate court to admit such evidence.
That is not to say that the discretion to admit new evidence in an appeal pursuant to sub-s.(3) will be commonly exercised by an appellate court[3]. But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive[4]. Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed[5].
There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld that will generally be so.
However we would not agree with the majority of the New South Wales Court of Criminal Appeal in Goodwin[6] that, for such evidence to be admissible on appeal, two conditions which must always be satisfied are that, if the existence of the evidence is known to the appellant, its significance was not realised by him and that its existence was not known to the appellant's legal advisers at the time of the sentence hearing. No doubt where those conditions are absent such evidence will usually be excluded but that may not always be so. In the end, the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage.
Before turning to the facts of this case it is necessary to consider whether the decision of this Court in Cornale precludes it from reconsidering this sentence because, as we have previously mentioned, it cannot be established that, on the evidence before the learned sentencing Judge, any other sentence should have been passed. In Cornale two members of this Court construed the words "and should have been passed" in s.668E(3) as preventing it from imposing, on appeal, a sentence which could not, at law, have been imposed at the time when the sentence under appeal was imposed. In consequence they held that this Court, upon allowing an appeal against sentence and substituting a new sentence for that imposed below, could not impose a suspended sentence for an offence where the provision conferring power to impose such sentence came into force after the date of the original sentence but before the appeal was heard.
In our view the ratio of the joint judgment in that case is confined in its operation to changes in the law relating to the level of sentence between the date of imposition of that sentence at first instance and the date of appeal. This was to construe s.668E(3) as a statutory application of the general principle that legislation which is not merely procedural should not be construed so as to have a retrospective operation unless that construction appears clearly from its terms[7]. That construction, as their Honours pointed out, is consistent with s.204(5) (now sub-s.(6)) of the Penalties and Sentences Act 1992.
Even if, however, contrary to the view expressed in the preceding paragraph, s.668E(3) precluded consideration by this Court on appeal of facts occurring after the date of sentence, it would not affect the admissibility of evidence of such facts to the extent only that they showed the true state of affairs existing at the time of sentence. That was the basis upon which the further evidence in this appeal was sought to be adduced. In our opinion the above reports should be admitted into evidence.
The reports of Dr. Fong and Ms. Lennon are hearsay but uncontradicted evidence that the applicant was sexually assaulted whilst he was in prison in July 1995 and support a conclusion that, because of his psychiatric condition, this assault engendered in him an irrational fear of prison causing an exceptionally high risk of suicide if he is sent to prison again. This fact and opinion were not revealed to the learned sentencing Judge, apparently because the applicant did not tell Ms. Lennon or Dr. Fong of the assault or of his fear until after 17 November 1995. It is unfortunate that Dr. Fama the consulting psychiatrist was not asked to express an opinion on the risk of suicide if the applicant were again sent to prison but this Court is entitled to and should accept that fact and opinion expressed.
As to whether the applicant, when he committed the offences, was suffering from a depressive condition, there appears to be a difference of opinion between Dr. Fong and Dr. Fama. Dr. Fong was of opinion that the applicant was suffering from a major depression with psychotic symptoms at the time of commission of these offences, to such an extent that he was unable to appreciate the distress that he caused his victims. Dr. Fong also thought that his behaviour was impulsive rather than premeditated. Dr. Fama, on the other hand, thought that the transcript of the telephone calls which the applicant made read as a persistently crude, depraved conversation indicative of regressive, perhaps drunken, sexual hostility; that the nature of the offences was not typical of what might be expected to be associated with a depressive illness; and that a partial explanation was possible in terms of alcohol and drug intoxication in a sexually immature personality. He concluded that the offending may have represented a transient, extreme response to stress and intoxication by an emotionally unstable personality. However he thought it worrying that the applicant's previous conviction was also for a hostile act of intimidation with probable covert sexual intent.
The facts that the applicant, at the time, had lost the emotional support of his sisters, who had gone overseas and upon whom he had been dependent, and had been subjected to substantial emotional stress by his father's demands on him and that, it appears in consequence, he began heavy frequent consumption of alcohol and frequent use of marijuana tend to support Dr. Fong's view that he was extremely depressed.
Both doctors commented on the applicant's apparent remorse for his conduct and thought that his prognosis was fair provided he continued to receive psychiatric treatment and Dr. Fama, who expressed the more conservative view, thought that the applicant was now capable of adequate reformative management in a community setting and recommended against imprisonment. But he was not prepared to rule out the possibility that the applicant might, in the future, be a danger to the community.
It is unfortunate that the reports requested by this Court were not obtained and sent to it until more than four months after they were requested. It is even more unfortunate that, of the reports obtained, that by the psychiatrist does not address the matters the subject of the request. However that of the Community Correctional Officer does.
It appears from the latter report that, whilst similar programmes are available to the applicant whether he is in prison or not, his progress can be more satisfactorily monitored and supported if he is out of prison. Also, because a requirement that he take part in any such programme can be made a condition of his probation there is a greater incentive to his undergoing and completing any such programme pursuant to a probation order than if he is in prison where his participation would be voluntary.
There are a number of factors which make it undesirable that the applicant should now be sent to prison. He is still very young. His only experience of prison was the month which he served in July last year during which he was sexually assaulted and this has left him with an irrational fear of imprisonment with a high risk of suicide if he is imprisoned. Moreover when seen by Dr. Fong only a few days after the date of sentence his psychiatric symptoms were controlled by medication, he was living with his sister and her husband with whom he had a good relationship and appeared to be committed to continuing treatment; in other words his prospects of rehabilitation, if he remained outside the prison system, appeared to be good. He had constantly expressed deep remorse for his conduct.
As against that the combination of his earlier offence and these offences give some cause for concern that he may again commit an offence of a sexual nature. However because the medical evidence appears to indicate that that possibility is more likely to be reduced by the continuation of his existing situation and treatment than by the imposition of a short term of imprisonment and because of the other factors referred to above we think that the appropriate sentence should be one which does not involve his serving a term of actual imprisonment but which ensures, as long as possible consistently with the need for it, his continued treatment.
We would therefore grant the application, allow the appeal, set aside the sentences imposed below and, in lieu, subject to his consent, in each case order that he be released under the supervision of an authorised Commission officer for a term of three years upon the following conditions:
1. that he must not commit another offence during the period of the order;
2. that he must report to an authorized Commission officer at Brisbane within seventy-two hours;
3. that he must report to and receive visits from an authorized Commission officer as directed by the officer;
4. that he must notify an authorized Commission officer of every change of place of residence or employment within two business days after the change happens;
5. that he must not leave or stay out of Queensland without the permission of an authorized Commission officer;
6. that he must comply with every reasonable direction of an authorized Commission officer;
7. that he must undergo such medical and psychiatric treatment as may seem appropriate to Dr. Fong the senior medical officer Community Forensic Mental Health Service or such other medical practitioner as may seem appropriate to an authorized Commission officer;
8. that he undertake such drug and alcohol counselling and attend such anger management or other programme as may be considered appropriate by an authorized Commission officer.
[3] See for, example, R. v. Lanham [1970] 2 N.S.W.R. 217, R. v. Brett [1983] 1 Qd.R. 38.
[4] Cf. Knights (1993) 70 A.Crim.R. 105.
[5] As in R. v. Mooney C.A. No. 268 of 1995, judgment delivered 5 December 1995, unreported; R. v. Smith (1987) 44 S.A.S.R. 587; Jones (1993) 70 A.Crim.R. 449. Evidence of subsequent sentences imposed on co-offenders appears to be an exception to the general proposition; and query Greer v. The Queen referred to in Gavin v. The Queen (1991) 6 W.A.R. 195 at 208.
[7] Maxwell v. Murphy [1957] HCA 7; (1957) 96 C.L.R. 261 at 267; Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 C.L.R. 188 at 194. See also Acts Interpretation Act 1954 s.20(2)(e), (3); and s.20C(3) which is even more emphatic with respect to amendments which increase penalty.
R
Maniadis [1996] QCA 242
I agree with their Honours that the decision of this Court in R. v. Cornale [1993] QCA 145; [1993] 2 Qd.R. 294 should be confined to changes in the law between sentencing and an application for leave to appeal against the sentence imposed, and that the Court has a discretion to admit further evidence on an application for leave to appeal against sentence which is to be exercised in the interests of justice.
Application granted; appeal allowed; sentences imposed below set aside. In lieu, subject to applicant's consent, orders that the applicant be released under supervision of an authorised corrective services officer for three years with specified reporting, treatment and program conditions; convictions recorded.