R v SPIERO No. SCCRM-00-249 [2001] SASC 19

1 DOYLE CJ. I agree with the orders proposed by Duggan J. There is nothing that I wish to add to the reasons that he gives for making those orders.

2 DUGGAN J. On 4 November 1991 the applicant in this matter was sentenced in the criminal jurisdiction of this court to imprisonment for 29 years and six months. A non-parole period of 24 years was imposed. There were two components to the sentence. As to the first component, the applicant had been found guilty by a jury of six counts of armed robbery committed in October and November 1990. The armed robberies were particularly serious. One was committed on the premises of a building society and the others were committed on banks. On each occasion the applicant or his accomplice was armed with a shotgun. Large sums of money were stolen. Prior J imposed an effective head sentence of 29 years imprisonment for the armed robberies. At the hearing of the applications before this court it was pointed out that the portion of the head sentence referable to the armed robbery offences has been reduced to 20 years and six months by operation of the Statutes Amendment (Truth in Sentencing) Act, 1994.

3 The second component of the sentence arose out of the revocation of suspension of a previous sentence. On the day on which the first armed robbery had been committed, the applicant was sentenced to a term of imprisonment for six months which was suspended when he entered into a recognisance to be of good behaviour for a period of three years. As a result of the breaches of that recognisance Prior J revoked the suspension of the term of imprisonment and directed that the sentence be served cumulatively on the sentence of 29 years for the armed robbery offences. When sentenced by Prior J the applicant was about 34 years old. He is now about 43 years old.

4 On 11 February 1992, while serving this sentence, the applicant escaped from custody. Two armed men held up a prison van in which the applicant was travelling and the applicant made his escape with them. He was apprehended in New South Wales in May 1993 and extradited to South Australia.

5 The applicant appeared before Millhouse J on 4 August 1993 and pleaded guilty to escaping from custody and a charge of housebreaking and larceny which took place before the date on which he was sentenced by Prior J. Millhouse J sentenced the applicant to imprisonment for two years on the housebreaking offence to be served concurrently with the sentence then being served for the armed robbery offences. His Honour purported to impose a non-parole period of 21 months in relation to the two year sentence. His Honour then sentenced the applicant to imprisonment for three and a half years for the escape from custody offence to be served at the expiration of the current sentence. He said he extended the existing non-parole period by three years.

6 Before his escape from prison the applicant had filed an application for leave to appeal against conviction on one of the armed robbery offences and against the sentences imposed by Prior J on all the armed robbery offences. The sole ground of appeal against sentence was that the head sentence and the non-parole period were manifestly excessive. The application was filed on 30 November 1991. It came on before me on 23 December 1991. There was argument in relation to the grounds of appeal against conviction and counsel for the applicant was granted an adjournment in order to reformulate two of the grounds. It was during this adjournment that the applicant escaped. I then referred the matter to the Full Court and on 9 December, 1992 the application for leave to appeal against conviction and sentence was summarily dismissed by the Full Court pursuant to rule 20 of the Supreme Court Criminal Appeal Rules 1990.

7 No further application was made to the court until 20 November 2000 when the applicant filed a fresh application for leave to appeal against the sentences imposed by Prior J. The grounds of appeal are more extensive than the single ground included in the earlier notice of application for leave to appeal against sentence. In addition to the assertion that the head sentence and non-parole period are manifestly excessive they include complaints that there is a disparity between the sentences imposed on the applicant and those imposed on his co-offender. There is also an application for leave to call evidence of the applicant's alleged reformation since May 1993 and evidence of his state of health. No affidavit has been filed setting out the proposed evidence and the court has been provided with only a brief outline of the evidence. There is an application for extension of time within which to appeal, but no adequate explanation is given in the application or by way of affidavit as to the reason for the delay since 1993 in filing the most recent application for leave to appeal.

8 The second application for leave to appeal came on before Wicks J on 18 December 2000. At this hearing the applicant was given leave to amend the application so as to add a further application that the dismissal by the Full Court of the application for leave to appeal against sentence be set aside. Wicks J heard argument and then dismissed the applications. The applicant has now requested that the applications be considered and determined by the Full Court.

9 I have said that the application for leave to appeal was dismissed by the Full Court pursuant to Rule 20 of the Supreme Court Criminal Appeal Rules 1990. The rule provided as follows:

"In the event of an appellant not being present at any hearing of the appeal by reason of the appellant's escape from custody or failure to appear in accordance with the conditions of a bail agreement entered into by the appellant, the Full Court may summarily dismiss the appeal, consider it in the appellant's absence or make such other order as may seem proper in the circumstances."

"Appellant" was defined in the Supreme Court Criminal Appeal Rules 1990 as including a person seeking leave to appeal against conviction or sentence.

10 A question arises as to whether the order of the court was perfected. In R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 100 the learned Chief Justice pointed out that the Criminal Appeal Rules 1925 were replaced by the Supreme Court Criminal Appeal Rules 1990 which, in turn, were replaced by the Supreme Court Criminal Appeal Rules 1996. Rule 35 of the 1925 Rules provided that the Registrar was to notify the Clerk of Arraigns of the decision of the Full Court on the final determination of an appeal and the Clerk of Arraigns was then required to enter the particulars of the determination in the "Records of the Court". The 1990 and 1996 Rules did not contain this provision. However, the practice of the court is to record the outcome on the relevant Information and the outcome is also entered in the computerised record system of the court.

11 In the present case, the decision of the Full Court was recorded on the Information and the prosecution and defence were given written notice of the court's order. The notification to the applicant and the entry on the Information refer to "the appeal" being dismissed, but I do not think anything turns on this and, in my view, the order of the Full Court dismissing the application for leave to appeal was perfected (cf Brain's case at 100).

12 It is convenient to deal first with the question as to whether the court has jurisdiction to entertain the second application for leave to appeal which, as I have pointed out, includes grounds which are more extensive than the sole ground put forward in the original notice of application for leave to appeal. The answer depends to an extent on the effect of the order of the Full Court made pursuant to rule 20.

13 Although the original application for leave to appeal was disposed of, the application was not determined on its merits. The court did not purport to dismiss the appeal, but rather it dismissed the application for leave to appeal. If leave to appeal had been granted and the appeal itself had been dismissed after a hearing on the merits there could not be a second appeal. (Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 and the other cases referred to in Brain's case at [69]). If leave to appeal had been granted, but the appeal dismissed pursuant to Rule 20 because of a failure to prosecute it and the order of the court had been perfected in the manner referred to above, the question would arise as to whether the dismissal could be set aside. This was the situation which arose in Brain's case where it was held that the court had an inherent power to revoke the order and resume the hearing of the appeal (at [72-76]). It is apparent from the reasons of the court in Brain's case that, although there is power to set aside an order for dismissal made in circumstances in which the appeal was not considered on its merits, the power is to be used cautiously and only when the interests of justice require it. The present case is to be distinguished from Brain's case in that here the matter did not go beyond an application for leave to appeal which was not heard on the merits, but was summarily dismissed for want of prosecution.

14 In determining whether a further application for leave to appeal can be heard by the court in these circumstances it is appropriate to refer to Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Postiglione was sentenced to a term of imprisonment for offences of conspiracy to import narcotic drugs. One Savvas was alleged to be a co-conspirator. Postiglione was sentenced before Savvas because it was intended that he should give evidence at the trial of Savvis. Postiglione applied for leave to appeal against his sentence on the ground of its severity. Leave to appeal was granted, but the appeal was dismissed after a hearing on the merits. All this took place before the trial of Savvas on the charges of conspiring with Postiglione. Savvas was convicted and sentenced. Postiglione then brought a second application for leave to appeal in which he claimed disparity between his sentence and that imposed on Savvas.

15 There was some doubt as to whether the order dismissing the appeal had been perfected. The majority of the court was of the view that a case had been made out for a reduction in Postiglione's sentence because of disparity. However, it was decided that if the order dismissing the appeal had been perfected, there could not be a second appeal and the sentence could not be reduced in the course of the ordinary appeal process. On the other hand, if the order on appeal had not been perfected, it was open to the court to deal with the second application for leave to appeal.

16 In the course of their joint judgment, Dawson and Gaudron JJ drew a distinction between the dismissal of an application for leave to appeal and the dismissal of an appeal after the grant of leave to appeal. They said (at 305):

"Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed[1]. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed[2]. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed."

17 It is apparent that their Honours were of the view that there will be some cases in which a further application for leave to appeal may be brought after the dismissal of an earlier application. Nevertheless the circumstances of the previous application for leave to appeal will often have an important bearing on whether the court should grant leave to appeal on the subsequent application. Their Honours pointed out that it would be inappropriate to permit a subsequent application based on matters which were agitated on an earlier application. It is my view that it would also be inappropriate to grant leave on an application in which the grounds which were sought to be argued were available and could have been argued at the time of the earlier application.

18 It is somewhat difficult in the present case to divorce the question whether the most recent application for leave to appeal should be permitted from the merits of the grounds of appeal. It was for this reason that it was decided at the hearing before this court to permit counsel for the applicant to address full argument on the merits of the grounds. It is appropriate to consider those arguments now before returning to the procedural considerations discussed above.

19 There are two grounds of appeal which are concerned mainly with events which occurred after the filing of the earlier application for leave to appeal. The first is the sentencing of the applicant's accomplice, Mr Pepicelli, and the second relates to the claimed reformation of the applicant since sentencing as well as to his health and treatment in prison.

20 I have said the applicant complains of disparity between the sentences imposed on him and the sentences imposed on Mr Pepicelli who was his accomplice in some of the armed robberies. Pepicelli was sentenced by a judge of this court on 30 September 1992, a little over 12 months after the applicant was sentenced by Prior J. Pepicelli, who was 32 years of age at the time, was sentenced for his involvement in four armed robberies which he committed jointly with the applicant. In addition, he was sentenced for various drug offences. The sentencing judge imposed a sentence of imprisonment for five years on each of the armed robbery offences to be served concurrently as between themselves. A sentence of imprisonment for four years was imposed in relation to each of the counts of selling heroin and a further count of possessing heroin for sale. The sentences for the drug offences were ordered to be served concurrently as between themselves but cumulative upon the sentence for the armed robbery counts. A further cumulative sentence of six months imprisonment was imposed for a charge of simple possession of heroin. The total head sentence was imprisonment for nine years and six months and a non-parole period of seven years was fixed.

21 There are obvious differences between the two cases. Pepicelli pleaded guilty to all offences, whereas the applicant pleaded not guilty to the armed robbery offences. Pepicelli's criminal history was nowhere near as extensive as that of the applicant. Pepicelli's only criminal offences were two counts of assault and two counts of assault occasioning actual bodily harm which arose out of two separate incidents, one in 1979 and the other in 1983. The judge who sentenced Pepicelli described the applicant as the ringleader in the armed robbery offences. The appellant committed six armed robbery offences. As against this Pepicelli had spent two years in gaol which was taken into account when sentence was passed on him.

22 Despite the more serious features of the applicant's offending, there is disparity on the face of the two sentences. However, it is my view that the effective sentence imposed on Pepicelli was manifestly inadequate. The principal of totality which the learned sentencing judge applied did not justify concurrent sentences on all of the armed robbery offences. In my view this was a clear error. The Director of Public Prosecutions appealed against Pepicelli's sentence claiming the sentencing judge should have accumulated at least two of the sentences for armed robbery. However, the Court of Criminal Appeal refused to grant leave to appeal by reason of the considerable delay in applying for leave (DPP v Pepicelli (1993) 60 SASR 520). The court considered it unnecessary to comment on the merits of the application.

23 The question whether a sentence which is otherwise appropriate should be reduced because of an inadequate sentence imposed on a co-offender, has been the subject of conflicting decisions in various Australian jurisdictions. The controversy was not resolved by the judgments in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

24 However, there is longstanding authority in this court to the effect that the mere fact that one person has received too light a sentence does not justify the passing of an inadequate sentence on a co-offender. In the joint judgment of the Court of Criminal Appeal in R v Kite (1971) 2 SASR 94 at 96 their Honours stated:

"It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved."

25 In R v MacGowan (1986) 42 SASR 580 at 583 King CJ pointed out that the lower of the sentences being compared may be so inadequate that "to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest". (See also R v Lainas [1989] SASC 1431; (1989) 50 SASR 461 and R v Jorgenson (1980) 25 SASR 115 at 118, 121.)

26 After considering the respective sentences imposed on the applicant and Pepicelli and taking into account the circumstances of each offender along with the clear inadequacy of Pepicelli's sentence, I have reached the conclusion that it would be inappropriate to interfere with the applicant's sentence on appeal by reason of disparity.

27 The next matter for consideration is the application for leave to call evidence. There is no ground of appeal based on the proposed evidence, but counsel for the applicant argued that the evidence would justify reducing the sentence. The application is in the following form:

"The Applicant seeks leave to give and call evidence as to:-

(i) His reformation in prison since May, 1993 particularly as to his qualifications as a chef and his work as a 'peer support worker' counselling other prisoners.

(ii) His attitude and plans for his future life and the fact he has the support of a brother and sister-in-law with whom he communicates daily, and who are prepared to provide him with permanent accommodation upon release. He also has the support of his mother.

(iii) As to injuries he sustained in an assault whilst in prison; namely bruising, concussion, 4 broken teeth and 3 broken ribs.

(iv) His health in that he suffers from Hepatitis C.

(v) During the period the Applicant was unlawfully at liberty he led a law-abiding life and was gainfully employed."

28 Speaking generally, in order for fresh evidence to be admitted on an appeal against conviction or sentence it must pass the tests which are set out in the well-known authorities. Furthermore, events occurring after sentence rarely qualify as fresh evidence. The principles applicable to this situation were summarised by King CJ in R v Smith (1987) 44 SASR 587 at 588.

29 Quite clearly, the applicant's conduct in prison subsequent to sentencing falls outside the scope of what is permitted by way of fresh evidence. Counsel for the applicant stated in his submissions before this court that the applicant was subjected to violence by fellow prisoners before and after he was sentenced because of his assistance to police. It was said that this did not represent a present difficulty for the applicant in prison. The learned sentencing judge was not advised of any violence which took place before sentencing and any violence which took place subsequently cannot be the subject of fresh evidence. The only reference to the applicant suffering from Hepatitis C is that which is in the application for leave to call evidence which is set out above. It was not suggested in the course of submissions to this court that the learned sentencing judge was informed that the applicant suffered from this condition at the time of sentencing. None of the matters referred to by the applicant's counsel at the hearing of the appeal would qualify for reception as fresh evidence on the hearing of an appeal against sentence. It should also be pointed out again that there was no affidavit evidence or any material put before the court setting out the particulars of the evidence which would be given. It is not sufficient for counsel to provide this information in the course of oral submissions to the court as was done in the present case. In my view, none of the evidence identified by the applicant's counsel would be permitted on the hearing of an appeal.

30 Finally, I am of the opinion that the argument that the sentence is manifestly excessive could not succeed on appeal. I have said that the applicant had a long history of criminal conduct prior to being sentenced. The offences included an armed robbery for which he was sentenced to eight years imprisonment in 1979. He escaped from prison while serving that sentence. I have pointed out that the six armed robberies for which Prior J sentenced the applicant were serious offences. The victim impact statements provided by the bank staff indicated to the trial judge the extent to which they were terrorised in the course of the offences. The effective sentence imposed in respect of each of the armed robberies was far below the lower end of the scale appropriate for these offences at the time of sentencing. The learned sentencing judge applied the principle of totality and, in my view, it could not be said that he erred by imposing a total sentence which was manifestly excessive.

31 There is a further difficulty in the way of the applicant. In order to grant leave on the second application for leave to appeal it would be necessary to grant an extension of time within which to appeal. The notice of the second application for leave to appeal was filed nine years after the sentence was imposed and over seven years after the applicant's recapture. His counsel advised the court in the course of submissions that solicitors had been contacted about the possibility of an appeal from time to time after the applicant's recapture, but no attempt was made to provide the court with any evidence or material which would justify an extension of the time within which to appeal. There was simply no reason advanced for the delay. In these circumstances there is no basis upon which to grant an extension of time.

32 Although, on the authority of Postiglione, a second application for leave to appeal might be made in some cases where a previous application has been summarily dismissed, it is my view that the present application for leave to appeal cannot succeed. The appropriate order is to refuse the application for extension of time, but even if there had been grounds for granting the extension, the application for leave would have been properly dismissed for the reasons which I have given.

33 There remains the application to set aside the summary dismissal. In Brain's case it was held that an order for the summary dismissal of an appeal could be set aside in certain circumstances. The reasoning of the court is applicable also to the setting aside of the dismissal of an application for leave to appeal. However, there are no circumstances which would justify such an order in the present case. I have referred to the absence of merit in any of the proposed grounds of appeal and, in addition, the present case is devoid of any extenuating circumstances attendant upon the failure to prosecute the appeal such as were present in Brain's case.

34 I would dismiss the application to set aside the order of the Full Court which summarily dismissed the application for leave to appeal dated 30 November 1991 and I would refuse an extension of time within which to file the notice of application for leave to appeal dated 20 November 2000.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(See Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 62 ALJR 319 at 319-320; [1988] HCA 19; 78 ALR 116 at 117, per Mason CJ, Brennan, Dawson and Toohey JJ).

2 (As to the special features which distinguish an application for leave or special leave to appeal from other legal proceedings, see Coulter v The Queen (1988) 164 CLR 350. See also Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120 at 122, per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney-General (Cth) v Finch [No 1] [1984] HCA 1; (1984) 155 CLR 102 at 105; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43; (1991) 173 CLR 194 and Carson v John Fairfax & Sons Ltd [1991] HCA 43; (1991) 173 CLR 194. See also R v Gibbings [1936] SAStRp 35; [1936] SASR 204 where an application for leave to appeal against conviction was entertained notwithstanding that an earlier application for leave to appeal against sentence had been dismissed, it being held that there may be separate appeals against sentence and conviction).

(See Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 62 ALJR 319 at 319-320; [1988] HCA 19; 78 ALR 116 at 117, per Mason CJ, Brennan, Dawson and Toohey JJ.

[2] (As to the special features which distinguish an application for leave or special leave to appeal from other legal proceedings, see Coulter v The Queen (1988) 164 CLR 350. See also Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120 at 122, per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney-General (Cth) v Finch [No 1] [1984] HCA 1; (1984) 155 CLR 102 at 105; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43; (1991) 173 CLR 194 and Carson v John Fairfax & Sons Ltd [1991] HCA 43; (1991) 173 CLR 194. See also R v Gibbings [1936] SAStRp 35; [1936] SASR 204 where an application for leave to appeal against conviction was entertained notwithstanding that an earlier application for leave to appeal against sentence had been dismissed, it being held that there may be separate appeals against sentence and conviction).