S v Tasmania [2007] TASSC 62

Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206; Fordham (1997) 98 A Crim R 359 at 377; R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593; Knights (1993) 70 A Crim R 105; Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154, referred to.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Appeal by convicted person - Powers of appellate court - New evidence on appeal.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Grounds for interference - Other matters - Whether order under the Community Protection (Offender Reporting) Act is appealable.

Community Protection (Offender Reporting) Act 2005 (Tas), s6(1) and (2).

Sentencing Act 1997 (Tas), s94.

Nicholas v Hibble [2007] TASSC 26, referred to_._

Criminal Law- Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Hardship - Life expectancy of offender.

Austin (1996) 87 A Crim R 570; R v Hunter (1984) 36 SASR 101; Holyoak (1995) 82 A Crim R 502; Bazley (1993) 65 A Crim R 154; DPP v Che Kien [2000] VSC 376, referred to.

Judgment Number: [2007] TASSC 62

That the parties have leave to adduce further evidence relating to the life expectancy of the appellant.

1 The appellant appeals against a sentence of eight years' imprisonment and related orders made upon his conviction on his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years. The criminal conduct occurred between 1972 and 1979. His victim was his daughter, then aged between 9 and 16 years.

2 The grounds of appeal are:

"1 The learned Judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.

2 The failure of the Appellant's counsel to inform the sentencing court that the Appellant had confessed to the Police in relation to his criminal conduct thirty years ago deprived the court of relevant and cogent evidence and led to a miscarriage of justice.

3A The learned Judge erred in making an order under the Community Protection Offender Reporting Act 2005 s6 on 26 July 2006 as his Honour's jurisdiction ceased on 13 June 2006 when sentence was imposed.

3 The learned Judge erred in failing to be satisfied for the purposes of the Community Protection Offender Reporting Act 2005 s6 that the Applicant did not pose a risk of committing a reportable offence in the future, and in consequence made an order requiring the registration of the Appellant under the Act

4 The failure of the Appellant's counsel to obtain an adequate medical report deprived the court of relevant and cogent evidence as [to] the Appellant's life expectancy which led to a miscarriage of justice."

3 I turn first to grounds of appeal 2 and 4, which are underpinned by the contention that there has been a miscarriage of justice, as the learned sentencing judge did not have before him relevant and cogent evidence:

• that the appellant had confessed to the police in relation to his criminal conduct 30 years ago; and

• that the appellant's life expectancy was between 3 to 5 years.

4 The genesis for the statutory provisions that govern criminal appeals in each of the Australian States and the Northern Territory is the Criminal Appeal Act 1907 (UK) ("the UK Act"). That Act, s4(3),which deals with appeals against sentence, is as follows:

"4 - (3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal."

This provision has been adopted in substantially similar terms in all of the Australian jurisdictions mentioned. In Tasmania, it takes the following form in the Criminal Code Act 1924 ("the Code"), s402(4):

"402 - (4) 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 there for, and in any other case shall dismiss the appeal."

5 Provisions along the above lines that have been adopted throughout Australia do not spell out any prerequisite for an appellate court's conclusion that some other sentence is warranted in law. Nevertheless, it is well established that ordinarily a sentence will not be set aside unless it has been shown that the sentencing judge made an error; error being understood in the sense explained in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 and Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519 - 520. Recent confirmation of this proposition, in relation to Western Australia's equivalent to the Code, s402(4), can be found in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [3, 20 - 22, and 57 - 60].

6 It is also well established that an exception to the requirement of a finding of error on the part of the sentencing judge before a sentence will be set aside arises where material that was not before that judge is put before the appellate court and the material shows that there has been a miscarriage of justice. The provision that governs the receipt of such evidence by this Court is the Code, s409(1), which relevantly provides that the Court may receive evidence "if it thinks it necessary or expedient in the interests of justice". The quoted words are contained in equivalent provisions in each of the other Australian jurisdictions I have mentioned. Whilst there are some differences in the approach taken to the receipt of further evidence by the appellate courts in each of those jurisdictions, there is consistent authority to the effect that an application to tender further evidence is never lightly granted. See In re Van Beelen (1974) 9 SASR 163 at 188, R v Dorning (1981) 27 SASR 481 at 486, Fordham (1997) 98 A Crim R 359 at 377 and R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593 at 596. The cautious approach that this Court takes to the receipt of further evidence on a sentencing appeal was explained by Zeeman J, agreed with by Crawford J, in Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206 at 215 where he said:

"There are important policy reasons for this Court not to receive evidence on an appeal against sentence as a matter of course. The Court should not become a forum for convicted persons to have their sentences reconsidered upon the basis of whatever factual material they are minded to put before it, including material which they might have placed before the sentencing judge. It is in the public interest that there be finality to litigation. The reception of evidence on the hearing of an appeal is discretionary, with the discretion to be exercised by reference to what is necessary or expedient in the interests of justice ...".

In the same case, Cox CJ, agreed with by Crawford J, said the following at 209 - 210 as to the link between the receipt of further evidence and the court's assessment of whether there has been a miscarriage of justice:

"Section 402(1) is not confined to appeals against conviction. It requires the Court on any appeal to allow that appeal if it is of the opinion that on any ground whatsoever there was a miscarriage of justice. In the same vein, s409(1) para(c) permits the Court for the purposes of the Chapter dealing with appeals to receive evidence, 'if it thinks it necessary or expedient in the interests of justice.' In R v Araya & Joannes (1992) 63 A Crim R 123 at 129 - 130 Gleeson CJ said:

'As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.

However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.'

I think that is a proper approach for this Court to adopt and the appropriate reason for doing so."

"402 ─ (1) On an appeal the Court 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 or order 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."

This provision is based on the UK Act, s4(1). However, that provision is confined in its application to an "appeal against conviction". Apart from Tasmania, all of the other Australian jurisdictions that have adopted that provision have retained that restriction. Accordingly, the equivalent of the Code, s402(1), in those jurisdictions does not provide a basis for setting aside a sentence on the ground of a miscarriage of justice. Nevertheless, this ground for setting aside a sentence has been recognised in those jurisdictions. Knights (1993) 70 A Crim R 105 is a decision of the Court of Criminal Appeal, Victoria, on an appeal against sentence based on evidence given to that court by a Sergeant Gibson that the appellant had been of significant assistance to the police in other investigations. This information was known to the appellant's instructing solicitor at the time of the sentencing hearing but had not been placed before the sentencing judge. At 110 - 111, Crockett J, with the agreement of Marks and Hampel JJ, said:

"Although the evidence which Gibson was able to give does not qualify under the fresh evidence rule for admission before this Court because of its non-conformity with the rules which allow so-called fresh evidence to be placed before an appellate court, that does not mean, as I think the Crown conceded, that this Court could not receive the evidence and act upon such reception.

I think a re-appraisal of the sentence is called for so that the applicant can be sentenced afresh. Authority for such a proposition is to be found in the judgment of Sir Garfield Barwick CJ in Ratten [1974] HCA 35; (1974) 131 CLR 510 at 517 - 518. His Honour there said:

'But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.'

By comparative reasoning when dealing with an appeal against sentence, it is clear, I think, that this Court may resentence if it considers that the failure of the sentencing court to have before it relevant and cogent evidence might well have led to the risk of a miscarriage of justice. In the same vein, Sir Laurence Street CJ, in Abbott (1985) 17 A Crim R 355, said with respect to that case that on the hearing of the appeal the appellant's counsel had come equipped with affidavits to prove further quite significant matters affecting the applicant's general emotional state at the time of the killing and with evidence giving assistance in the form of a psychiatrist's report and a psychologist's report. His Honour held:

'This material is highly relevant and ought to have been produced at the sentencing proceedings as it bears very significantly upon the determination of the sentence and the non-parole period. In the absence of that material there can be little quarrel with the sentence and the non-parole period determined by the learned judge, but taking into account that material, it establishes a case in which a shorter sentence and non-parole period were adequate to meet the requirements of criminal justice.'

I am of opinion that the Chief Justice's words are precisely applicable to the present case."

7 Fordham (supra) is a decision of the Court of Criminal Appeal, New South Wales, on the receipt of further evidence on a sentencing appeal. Howie AJ, agreed with by Hunt CJ at CL and Smart J said as to the receipt of such evidence:

"Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice."

8 R v Maniadis (supra) is a decision of the Court of Appeal, Queensland, on the receipt of further evidence on an appeal against sentence. Davies JA and Helman J, agreed with by Fitzgerald P, said at 597:

"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."

9 The appellant has proffered evidence to this Court that he has a life expectancy of 3 to 5 years and that he had disclosed to police the conduct that is the subject of the charge brought against him about 34 years prior to being charged. This evidence was not challenged or tested by the respondent. The evidence was not put before the learned sentencing judge and the appellant contends that in consequence there has been a miscarriage of justice.

10 The appellant was born on 23 February 1931. He was 75 years of age when he pleaded guilty on 24 April 2006. On that day, following the prosecutor's statement of the facts, the hearing was adjourned to enable counsel for the appellant to obtain medical reports on the appellant and his wife. On the resumption of the hearing on 8 June 2006, counsel for the appellant informed the court that the general practitioner from whom she had requested a report had done little other than list the appellant's medication and outline his condition. Counsel informed his Honour that the appellant suffered from asthma, diabetes that needed on-going monitoring, hypertension and high cholesterol. She said that since being remanded in custody, the appellant had been admitted to the Royal Hobart Hospital with angina for which he was receiving medication and he had undergone a bypass operation in 1990.

11 In the course of sentencing the appellant on 13 June 2006, the learned sentencing judge said:

"You are 75 years old and in poor health. I take that into account. You made an early confession and entered a plea of guilty. I take that into account. Insofar as these factors indicate remorse, I take that into account as well but, apart from that, there are no mitigating circumstances."

12 As is to be expected, there being no information before the learned sentencing judge referable to the appellant's life expectancy, no comment was made about it. The life expectancy of an Australian male aged 75 years is 10.6 years, see Luntz Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Australia 2002, Appendix Table 6.

13 As recognised by the learned sentencing judge, the old age and poor health of the appellant was a mitigatory matter. In Austin (1996) 87 A Crim R 570 at 572, Malcolm CJ, agreed with by Franklin J and Murray J at 572, cited with approval a decision of the Court of Criminal Appeal, Western Australia, in Smith (unreported, 2 June 1994) where the court, in a joint judgment, said:

"The significance of old age as a mitigatory factor, particularly when combined with ill health, is that it constitutes a basis on which the court, in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case."

14 In R v Hunter (1984) 36 SASR 101, King CJ said at 103:

"A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial portion of the period of life which is left to [the offender]."

15 This, of course, does not mean that it can never be appropriate to impose a term of imprisonment which will have the effect that the offender will spend the whole of his or her remaining life in custody because of advanced age (Holyoak (1995) 82 A Crim R 502 at 507), and advanced age cannot justify the imposition of an unacceptably inappropriate sentence (Bazley (1993) 65 A Crim R 154 at 158). What the authorities establish is that advanced age may be significant to, but not determinative of, the quantum of a sentence (DPP v Che Kien [2000] VSC 376 [17]).

16 In the ordinary course, the head sentence of eight years imposed on the appellant would not be a life sentence, however, it may well be if the forecast as to his life expectancy of 3 to 5 years is correct. Had the learned sentencing judge been aware of that forecast, to my mind, it is inevitable that this possibility would have been a material and pertinent consideration to the length of the sentence, and a lesser sentence may have been imposed.

17 Should the evidence of the appellant's reduced life expectancy be received by this Court? It is contained in a letter from Dr C J Wake, clinical director of Clinical Health Services. That report was provided to the appellant's solicitors on 18 December 2006. In the absence of evidence to the contrary, I have no hesitation in concluding that evidence of the appellant's reduced life expectancy was available at the time of the sentencing hearing and could, with reasonable diligence, have been obtained and put before the learned sentencing judge. Accordingly, the criteria for the admission of this evidence as fresh evidence are not satisfied. This is not, however, determinative of the issue. The question for this Court pursuant to the Code, s409(1), is whether it is necessary or expedient in the interests of justice to receive the evidence and, consistent with the authorities to which I have referred, this question turns on whether the exclusion of the evidence would result in a miscarriage of justice. There is no suggestion that evidence of the appellant's life expectancy was not sought or worse was withheld by him so that it might be relied upon if an appeal was thought to be necessary (R v Lanham [1970] 2 NSWR 217 at 218). Counsel for the appellant on the sentencing hearing sought and obtained a medical report referable to the appellant for the purposes of that hearing. That report is before this Court. From its contents it can be inferred that the relevance of the appellant's life expectancy was not adverted to by the writer of the letter that sought the report, or the doctor who provided it. In my view, the life expectancy evidence would have been material and pertinent to the learned sentencing judge's consideration of the length of the appellant's sentence and in its absence there has been a miscarriage of justice. The evidence should accordingly be received by this Court.

18 I have reached a different conclusion in relation to the evidence proffered on behalf of the appellant to the effect that he had confessed to police in relation to his conduct some 30 years ago. This information was known to the appellant's counsel on the sentencing hearing. She had been told by the appellant that in around 1972, he had informed two police officers that he was interfering with his daughter. His counsel sought, but was unable to find, any independent confirmation of these instructions and ultimately concluded that the better course was not to put them before the court. The period of the appellant's criminal conduct covered the years 1972 to 1979 inclusive. On the basis of the appellant's instruction that he had made the admission in 1972, his criminal conduct had continued for seven years after the admission and during that period the nature of his conduct had increased in severity and frequency. In these circumstances counsel took the view that the admission did not reflect remorse and might be viewed as an aggravating feature.

19 Where it is claimed that a miscarriage of justice has resulted from a course taken in the course of a hearing, it is for the appellant to establish that the course was not the result of counsel's informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage was slight in comparison with the disadvantage resulting from the course in question (TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 [33]). The advantage in the course adopted by the appellant's counsel on the sentencing hearing was not slight compared to the potential disadvantage of the appellant's admission being viewed as an aggravating factor. I am unpersuaded that the appellant was disadvantaged by the course that was adopted and accordingly unpersuaded that it resulted in a miscarriage of justice. I would refuse to receive the evidence of the admission.

20 A determination that there has been a miscarriage of justice because the learned sentencing judge was not provided with evidence that the appellant's life expectancy was 3 to 5 years will not result in the imposition of a different sentence unless this Court is satisfied that "some other sentence ... is warranted in law". For the purposes of that assessment I would give the parties leave to put evidence before the Court as to the appellant's life expectancy. This is the approach adopted where material error has been established (Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154). There is no reason for adopting a different approach where there has been a miscarriage of justice.

21 To so proceed does not avoid the need to address grounds of appeal 3A and 3, which relate to an order made by the learned sentencing judge pursuant to the Community Protection (Offender Reporting) Act 2005 that the Registrar place the name of the appellant on the Community Protection Offender Register, and that the appellant comply with the reporting obligations imposed by that Act, Pt3, for such time as he is on parole.

22 That Act, s6(1) and (2), provides:

"6 - (1) The court is to make an order directing that -

(a) the Registrar cause the name of a person whom the court sentences for a reportable offence to be placed on the Register; and

(b) the person comply with the reporting obligations under this Act -

unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future.

(2) The court is to make the order at the time the person is sentenced for the reportable offence."

23 A reporting order was not made on 13 June 2006, the day that the learned sentencing judge announced that the appellant was sentenced to eight years' imprisonment. The reporting order in contention was made on 26 July 2006 when the court was re-convened and the State applied for the same. By ground of appeal 3A, the appellant, in substance, contends that the judge had no jurisdiction to make that order on 26 July 2006 as pursuant to the Community Protection (Offender Reporting) Act, s6(2), it could only be made "at the time the person is sentenced". Implicit in this ground of appeal are two propositions. Firstly, the proposition that the requirement that the reporting order be made "at the time the person is sentenced for the reportable offence" means that the order must be made at the moment of, or at least contemporaneous with, the oral announcement of that sentence by the judge. Secondly, the proposition that this requirement is mandatory and not directory, the consequence of this being that if there is a failure to comply with the requirement when making a reporting order, it is a nullity.

24 In my view, neither of these propositions is sustainable. There is no reason for ascribing such a confined meaning to the words "at the time the person is sentenced". Whilst ordinarily all aspects of a sentence are dealt with at the same time, different aspects of a sentence may be dealt with over an extended period. A decision can be made and announced on some aspects of a sentence, whilst other aspects such as the making of a community service order, probation order, continuing care order, supervision order or restraining order may be adjourned pending the receipt of reports or other material. After it has been announced that a person is sentenced to a term of imprisonment for a reportable offence, it may be necessary to adjourn the hearing to enable the parties to put information before the court on whether it should be satisfied that the offender does not pose a risk of committing a reportable offence in the future. A judge of this Court is not functus officio in relation to the sentencing of an offender until a formal record of the result has been completed. This occurs when particulars of the result are endorsed on the back of the indictment or certified copy of the complaint, and signed by the judge. See the Criminal Rules 2006, r42, and Tasmania v Coy [2004] TASSC 151 [2]. Against this background I conclude that the words "at the time the person is sentenced" in s6(2) cover the period of the sentencing process that concludes when the outcome is recorded on the indictment or complaint and signed by the judge.

25 Assuming, however, that I am mistaken in my construction of s6(2) and it means that a reporting order is to be made at the moment of, or contemporaneous with, the announcement of all other aspects of a sentence, then I have no hesitation in concluding that this requirement is directory not mandatory, so that a failure to comply with it does not affect the validity of a reporting order. The preamble to the Community Protection (Offender Reporting) Act is that it is:

"An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time (to reduce the likelihood that they will reoffend and to facilitate the investigation of any future offences that they may commit), to enable courts to make orders specifying certain offenders to be reportable offenders, and for related purposes".

In terms of the role of the court, it is clear from the preamble and s6(1) that the predominant objective behind that provision is to ensure that where appropriate, a court that sentences a person for a reportable offence also makes a reporting order. That objective is served if the requirement in s6(2) that the court make a reporting order at the time the offender is sentenced is directory. To elevate this requirement to the status of a mandatory provision that confines the court's jurisdiction would unnecessarily derogate from that predominant purpose. In so concluding, I have borne in mind the following passage from the decision of Hope, Glass and Samuels JJA in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24:

"The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court: Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 and Hatton Beaumont [1977] 2 NSWLR 211. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81. From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case [1977] 2 NSWLR 955, at pp 963 et seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [1977] 2 NSWLR 211, at p 220. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81, at pp 179, 180."

26 The formal record of the sentencing of the appellant is relevantly as follows:

"JUDGMENT AND DATE THEREOF 13/06/06, 26/07/06

Sentence 13/06/06 (Burnie)

1 A conviction.

2 A sentence of 8 years' imprisonment to commence on 5 May 2006.

3 That you not be eligible for parole until you have served half of that sentence.

4 An order to pay $50.00 fixed by the Victims of Crime Compensation Act. Payment is to be made within one month of your release from prison.

Order 26/07/06 (Hobart)

1 That the Registrar cause your name to be placed on the register.

2 That you comply with the reporting obligations imposed by part 3 of the Community Protection (Offender Reporting) Act 2005 for such time that you are on parole.

(Judge's signature)"

As can be seen from the above, the record was signed once only and this was below the record of the reporting order. This suggests that a formal record of the outcome of the sentencing of the appellant was not completed until after the reporting order was made, in which case the learned sentencing judge would not have been without jurisdiction when he made that order. In different circumstances this matter might warrant further enquiries. However, this is not such a case, as the Court does not have jurisdiction to deal with a reporting order on an appeal against sentence. In Nicholas v Hibble [2007] TASSC 26, Crawford J said at [4 - 5]:

"The first question I consider is whether it is open to the applicant to seek a review of the reporting order. It was not part of the sentence for the offences. The Sentencing Act 1997 makes no provision for such an order. The source for the order is the [Community Protection (Offender Reporting) Act], which contains no provision that the order is to be taken to be part of the sentence and no provision for any form of appeal from it. The statutory position is to be contrasted with the position under the Crime (Confiscation of Profits) Act 1993, s72(2), which provides that a person against whom a pecuniary penalty order is made under that Act may appeal against the order in the same manner as if it was the sentence, or part of the sentence, imposed on the person in respect of the offence in reliance on which the order was made.

There is no common law right of appeal. It is invariably the creation of statute. See Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 35 and the cases cited there. Therefore, it seems that there could be no appeal to the Court of Criminal Appeal from a reporting order made by a judge of this Court in the exercise of its criminal jurisdiction, for the right of appeal given by the Criminal Code, s401(1)(c), is only a right to appeal against a sentence."

I agree with Crawford J. The Code, s389, which is headed "Sentences" provides:

"(3) Subject to the provisions of the Sentencing Act 1997 or of any other statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case."

27 The Sentencing Act 1997 details the sentencing orders that may be made by the court. They do not include a reporting order. That Act, s94, empowers a court to correct a sentence in certain circumstances. The section recognises the limited scope given to the meaning of the term "sentence" in that Act, insofar as it provides that for the purposes of the section:

"'sentence' includes a forfeiture, compensation levy, compensation order, restitution order, exclusion order, disqualification and loss or suspension of a licence or privilege."

The Code, Ch XLVI, governs appeals to this Court. The first section in that Chapter, s399, provides:

"In this chapter, unless the contrary intention appears -

'sentence' includes any order made by the court of trial -

(a) for the keeping in custody of any person convicted;

(c) with reference to any moneys to be paid by a person convicted."

This definition of sentence does not cover an order of the nature of a reporting order. In those circumstances where Parliament has been minded to expand the meaning of "sentence" for the purposes of appeals to this Court, this has been done expressly. Crawford J made reference to the Crime (Confiscation of Profits) Act 1993, s72(2), which provides that a person against whom a pecuniary penalty order is made under the Act may appeal against the order in the same manner as if it was the sentence or part of the sentence. A further illustration can be found in the Criminal Code (Amendment) Act 1987 which amended the Code, s401, so as to give the Attorney-General a right to appeal against an order that a person be discharged upon his entering into a recognizance under the Code, s386(1)(c), as it then was, and a probation order under s7(2) of the then Probation of Offenders Act 1973. This result was achieved by adding subs(3) to s401 which provided that the term "sentence" included those orders. See also the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, s12 of which expressly provides for a right of appeal under the Code, s401, against a sentence imposed pursuant to that Act.

28 In my view the inability of this Court to deal with a reporting order on an appeal against sentence is unsatisfactory and the legislation should be amended to allow this to occur.

29 I would give the parties leave to put evidence before the Court as to the appellant's life expectancy and adjourn the hearing for that purpose.

30 I have read the reasons for judgment of Evans J and Tennent J in draft form. I need not repeat the facts of the case.

31 This ground relates to the confession made by the appellant to the police some 30 years ago. For the reasons stated by Evans J, I think this ground must fail.

32 This ground relates to the fact that the learned sentencing judge made an order under the Community Protection (Offender Reporting) Act 2005 on 26 July 2006, some weeks after the time of sentencing, when s6(2) of that Act requires such an order to be made "at the time the person is sentenced for the reportable offence". That subsection was not complied with. In the field of administrative law, it is well established that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid, and that its validity or otherwise depends on whether it was a purpose of the legislation to invalidate any act done in breach of the condition: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I think it must follow that, whenever a court makes an order in breach of a statutory requirement regulating the making of such orders, the order will not be impeachable unless it was the intention of Parliament that no orders were to be made other than in accordance with the statutory requirement in question. An interpretation of the relevant legislation that promotes its purpose or object has to be preferred to one that does not: Acts Interpretation Act 1931, s8A. The legislation was enacted by Parliament with a view to sex offenders ordinarily being ordered to comply with reporting obligations for years after they were sentenced. It cannot have been Parliament's intention that a failure to make a reporting order on the required day would result in the sentencing court suddenly losing its jurisdiction to make such an order. I therefore agree with the other members of the Court that this ground must fail.

33 I agree that there is no right of appeal to this Court from an order under the 2005 Act, for the reasons stated by Evans J. Whilst an offender aggrieved by such an order has no right of appeal to this Court, he or she may apply for special leave to appeal to the High Court of Australia: Constitution, s73(ii); Judiciary Act 1903 (Cth), s35(2). It is most inappropriate for there to be no right of appeal to an intermediate appellate court. I agree with the other members of the Court that it would be desirable for Parliament to consider changing the law in this respect.

34 The evidence before this Court as to the appellant's life expectancy is unsatisfactory. In an affidavit sworn by him on 15 February 2007, he said he had obtained a medical report from Dr Wake, the Clinical Director of Correctional Health Services. A copy of that report is annexed to that affidavit. The report is undated, but it is addressed to the appellant's solicitors, and bears the imprint of a facsimile machine suggesting that it was sent to them on 18 December 2006. The report refers to the appellant and his date of birth, and to a letter from the appellant's solicitors dated 5 December 2006 - a letter which this Court has not seen. Dr Wake then said the following:

"In answer to your specific questions I say the following:

1 Diabetes, arthritis, asthma and moderate ischaemic heart disease.

2 All of these conditions were developed and established prior to incarceration in June 2006.

3 These conditions would be expected to produce a reduction in life expectancy.

4 Prison has improved his general treatment, medicine compliance and rate of investigation of his heart disease.

5 On the balance of probabilities and with appropriate treatment [the appellant's] life expectancy is three to five years."

35 Dr Wake has not sworn an affidavit. He or she has not revealed the extent of the information provided about the appellant, details of any observations on examining the appellant, or the reasoning process that led to the conclusion that his life expectancy was three to five years. This appeal was heard on 31 May 2007. In the five months that the appellant's solicitors apparently had that report, they should have obtained and filed an affidavit from the doctor presenting his expert opinion and the basis for it in an appropriate way.

36 Taken at face value, Dr Wake's report suggests that the learned sentencing judge may have sentenced the appellant in ignorance of important information about the appellant's life expectancy, and that a miscarriage of justice may therefore have occurred. I agree with the reasons of the other members of the Court as to that point. In the circumstances, in order to do justice to the appellant, the only appropriate course is to afford both parties an opportunity to adduce affidavit evidence as to the appellant's life expectancy, and to cross-examine the deponents of each other's affidavits. I agree with Tennent J that it would not be appropriate to allow the appeal and quash the original sentence at this stage. That should only be done if and when this Court "is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed": Criminal Code, s402(4).

37 This ground asserts that the original sentence was manifestly excessive. I do not think this Court should determine this ground until it determines ground 4.

38 I would give both parties leave to adduce further affidavit evidence relating to the life expectancy of the appellant, and re-list the appeal for further hearing.

File No CCA 52/2006

39 On 5 May 2006, the appellant pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code 1924, s125A. On 13 June 2006, he was convicted and sentenced to a term of eight years' imprisonment to date from 5 May 2006, with an order that he not be eligible for parole until he had served one half of that sentence. On that day, the issue of an order pursuant to the Community Protection (Offender Reporting) Act 2005 ("the Act"), s6, was canvassed between the learned sentencing judge and counsel for the State. Counsel for the State did not seek an order and his Honour responded:

"No, all right, I think that's appropriate, having regard to his age, the length of the sentence, and particularly the fact that the victim was his own daughter."

40 On 26 July 2006, the matter of an order under the Act came back before the learned sentencing judge. While it was unclear how this came to be, it may be inferred from the transcript of proceedings on that date that the State may have requested the matter be relisted. There was no objection by counsel for the appellant. His Honour took the view he had jurisdiction on that date to consider and make an order under the Act in respect of the appellant and did so.

41 The appellant now appeals, not only the sentence imposed on 13 June 2006, but also the order made 26 July 2006, pursuant to the Act.

42 The appellant was born in February 1931 and at the date of sentence was 75 years old. The offending, the subject of the charge before the Court, occurred between 1972 and 1979. The victim was the appellant's daughter, born July 1963 ("the complainant"). She was therefore between about 9 and 16 years old when the offending occurred.

43 In March 1972, the appellant was living with his wife and a number of their children. His wife left, leaving all the children with their father. There were four bedrooms in the family home. The complainant shared a room with her sister. The appellant would go to the local hotel at night to drink. Not long after the appellant's wife left home, the appellant began to come home after being at the hotel and drag the complainant from her room. He would take her to his bedroom, undress and sexually assault her. This happened once or twice a week for a number of months. She would cry and try to push the appellant away. The behaviour escalated to more intrusive sexual assaults which would occur up to three times a week. The appellant threatened the complainant, saying if she told anyone about what was happening, the family would be split up. She was terrified of this.

44 The appellant's behaviour escalated further when the complainant was about 12 and this continued at least weekly until she was 15 or 16. The complainant's sister was disabled and when the complainant was about 13 years old, this sister began to go to respite care. Whereas before that the appellant would take the complainant to his bedroom, after that he came to hers. The appellant at times was violent after consuming alcohol. On an occasion when the complainant was 14 or 15, the appellant, during an argument, pushed her over and began kicking her. She became terrified of him. When she was about 15, she believed she was pregnant. She told the appellant this and tried to self-abort. She began haemorrhaging. No child was born. She ran away from home shortly after this.

45 The complainant did not tell anyone about what had happened until 2004. She did not do so because she was worried about the impact on the family of her disclosures. Over the intervening years she suffered significant severe depression and attempted suicide on four occasions as a consequence of the abuse.

46 The appellant was interviewed by police in September 2005. He admitted having a sexual relationship with the complainant as she had described it to police. He told police he had no relationship with anyone else after his wife left, and no social life. He thought he had a drinking problem at the time and the relationship just happened. He admitted it was a terrible thing he had done. The appellant had no relevant prior convictions.

47 The grounds of appeal as amended at the hearing were as follows:

"1 The learned Judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.

2 The failure of the Appellant's counsel to inform the sentencing court that the Appellant had confessed to the Police in relation to his criminal conduct thirty years ago deprived the court of relevant and cogent evidence and led to a miscarriage of justice.

3 The learned Judge erred in failing to be satisfied for the purposes of the Community Protection Offender Reporting Act 2005 s6 that the Applicant did not pose a risk of committing a reportable offence in the future, and in consequence made an order requiring the registration of the Appellant under the Act.

3A The learned Judge erred in making an order under the Community Protection Offender Reporting Act 2005 s6 on 26 July 2006 as his Honour's jurisdiction ceased on 13 June 2006 when sentence was imposed.

4 The failure of the Appellant's counsel to obtain an adequate medical report deprived the court of relevant and cogent evidence as [to] the Appellant's life expectancy which led to a miscarriage of justice."

48 The grounds of appeal raise three issues. Ground 1 relates to the issue of manifest excessiveness generally. Grounds 2 and 4 relate to the asserted failure of the appellant's counsel to:

•

inform the sentencing judge about an admission said to have been made by the appellant some 30 years ago, and

•

obtain an adequate medical report, thus depriving the Court of cogent and relevant evidence as to the appellant's life expectancy.

Grounds 3 and 3A relate to the order made pursuant to the Act.

49 In respect of grounds 2 and 4, counsel for the appellant sought to present fresh evidence to the Court in the form of affidavits sworn by the accused on 9 November 2006 and 15 February 2007 and by Rochelle Courtney Mainwaring on 15 December 2006 and 17 May 2007. There was some discussion as to the capacity of the Court to receive the material and it was ultimately taken in de bene esse with a ruling to be made as to whether such material could be introduced to be made as part of any ruling on appeal.

50 This is an appeal against a sentence. The appellant's right of appeal is provided for by the Code, s401(1)(c). A sentence for the purpose of this section is defined in the Code, s399, to include any order for the keeping of a person in custody, with reference to any property and with reference to any moneys to be paid to the person convicted.

51 The powers of the Court in respect of such an appeal are set out in the Code, s402(1) and (4) which provide:

"(1) On an appeal the Court 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 or order 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.

...

(4) 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."

52 There are further powers set out in the Code, s409. As to the power of the Court to receive further evidence on the hearing of an appeal, that section relevantly provides that the Court may:

"... if it thinks it necessary or expedient in the interests of justice ¾

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not compellable, witness; and if the appellant makes application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application."

53 In Plumstead v The Queen [1997] TASSC 158; (1997) 7 Tas R 206 at 209, Cox CJ said:

"Section 402(1) is not confined to appeals against conviction. It requires the Court on any appeal to allow that appeal if it is of the opinion that on any ground whatsoever there was a miscarriage of justice. In the same vein, s409(1)(c) permits the Court for the purposes of the Chapter dealing with appeals to receive evidence, 'if it thinks it necessary or expedient in the interests of justice.' In Araya & Joannes v The Queen (1992) 63 A Crim R 123 at 129-130 Gleeson CJ said:

'As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.

However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.'

I think that is a proper approach for this Court to adopt and the appropriate reason for doing so."

54 In the same case, commencing at 210, Zeeman J canvassed a number of authorities dealing with interstate equivalents of s402(4). Having, at 212 and 213, quoted passages from the judgments of Gibbs CJ and Mason J (as he then was) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 - 610 and 613 - 614 respectively, Zeeman J said at 213:

"In my view, the opinions expressed by Gibbs CJ and Mason J throw light on the ambit of the power conferred by s402(4). In the absence of that authority, I might have concluded that a sentence is to be judged by reference to the circumstances as they existed at the time of sentencing. That authority leads me to the opposite conclusion. In Babic v The Queen (1997) 93 A Crim R 254 the Victorian Court of Appeal, without reference to the basis on which an appellate court may interfere on the ground of disparity but after reference to a number of authorities, took the view that when a sentence is attacked as excessive, regard may be had to events occurring after sentence only for the purpose of showing the true significance of facts existing at the time of sentence."

"There are important policy reasons for this Court not to receive evidence on an appeal against sentence as a matter of course. The Court should not become a forum for convicted persons to have their sentences reconsidered upon the basis of whatever factual material they are minded to put before it, including material which they might have placed before the sentencing judge. It is in the public interest that there be finality to litigation. The reception of evidence on the hearing of an appeal is discretionary, with the discretion to be exercised by reference to what is necessary or expedient in the interests of justice (Criminal Code, s409(1)(c)). The true explanation for the decision in Babic v The Queen (1997) 93 A Crim R 254 may be that it concerned the question as to whether the evidence sought to be placed before the court by the appellant should be received. In the present case the evidence was received without objection from the respondent."

55 The sentence appealed from was one of eight years with a non-parole period of four years. The appellant was 75 at the time of sentence. At the sentencing hearing, which had been adjourned at the request of then counsel for the appellant to enable her to obtain medical reports relating to the appellant, counsel provided some information relating to the appellant's health. She did not, however, tender any reports. It can be inferred from the transcript that the report she did have did little more than outline the conditions from which the appellant was suffering and list the medications he was prescribed. Counsel did not seek a further adjournment. The learned sentencing judge was told the appellant suffered from asthma, diabetes (which required ongoing monitoring), hypertension, high cholesterol and angina. He had had a bypass operation in 1990. Since his remand in custody he had been admitted to the Royal Hobart Hospital in relation to the angina.

56 Part of the evidence sought to be admitted is that of a medical practitioner to the effect that the appellant's life expectancy is presently three to five years. The material is presently before the Court in the form of a copy of an undated medical report of a Dr Wake annexed to the affidavit of the appellant sworn 15 February 2007. No objection was taken at the hearing of the appeal to this information. If indeed it is correct, it potentially means that the appellant may die in prison.

57 The learned sentencing judge noted the appellant's age and that he was in poor health, that really being the extent of the information available to him. He was clearly mindful that it was appropriate to consider such matters in mitigation. In DPP v Che Kien [2000] VSC 376, Cummins J sentenced an 81 year old woman for murder. In doing so he canvassed authorities relating to the impact of the age of an offender on sentence. He said at 4:

"In Holyoak (1995) 82 A Crim R 502, at 507 (a sexual case) Allen J (with whom Handley JA agreed) stated at 507:

'It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he may well spend the whole of his remaining life in custody.'

There, the accused was 75 years of age at the time of sentence, and a period of 7 years was imposed upon him. In Austin (1996) 87 A Crim R, 570 at 572 (a sexual case) Malcolm CJ (in whose judgment the other Justices agreed) quoted with approval a decision of the West Australian Court of Criminal Appeal in Smith (2 June 1994, unreported) as follows, at 572:

'... the significance of old age as a mitigating factor, particularly when combined with ill-health, is that it constitutes a basis on which the court, in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case.'

Mr Austin was 87 years of age when sentenced for sexual offences committed 30 years earlier, in poor health, with a life expectancy of three to five years. The Court imposed a sentence of seven years upon him, as to which remissions of one third would operate. In R v Hunter (1984) 36 SASR 101 (a fraud case) King CJ at 110 stated:

'A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial proportion of the period of life which is left to him.'

There, the accused was 74 years of age; he was, on appeal, sentenced to five years with a minimum of three and a half years by a majority, and again was subject to remissions."

58 The expectation of the learned sentencing judge, having regard to the information with which he was provided, was most likely that the appellant would leave prison alive. The potential for his not doing so because of a limited life expectancy was clearly a factor relevant to the sentence to be imposed. Had the learned sentencing judge had the information now sought to be put before the Court, he may very well have imposed a lesser sentence. The absence of that information has, in my view, resulted in a miscarriage of justice.

59 There can be no doubt that the information as to the appellant's life expectancy could have been obtained at the time of sentence. The report of the appellant's medical practitioner referred to by counsel for the appellant, but not tendered at the sentencing hearing, is now annexed to the affidavit of Rochelle Mainwaring, sworn 17 May 2007. The information as to life expectancy could have been sought from that medical practitioner, but it appears nobody thought to ask the question. However, the fact that the information could have been available to the learned sentencing judge does not, having regard to the terms of the Code, s409, preclude its admission now. The section permits the Court to receive the evidence if it thinks it necessary or expedient in the interests of justice to do so. I am satisfied, having regard to the nature of the evidence, that it is necessary and expedient to admit it and would allow its receipt.

60 The appellant's counsel also sought to present further evidence about an admission alleged to have been made by the appellant to police some 30 odd years ago. That evidence must be treated somewhat differently. The information was known to the appellant's counsel prior to the sentencing hearing. It appears the appellant gave instructions to his counsel about this and she sought to verify it by enquiry through official channels. She was unable to do so. She made the decision not to raise it with the learned sentencing judge, clearly taking the view that it might suggest to the court a continuation of offending after disclosure, and hence be considered an aggravating factor. It cannot be said the appellant has been disadvantaged in any way by this decision. I am not satisfied it could be said it is necessary or expedient in the interests of justice for the information to be received by this Court and would not allow it to be received.

61 The application by counsel for the appellant early in the hearing of the appeal was for this Court to receive the further evidence in the form of the affidavits identified by counsel. Towards the end of the hearing, counsel for the State was asked if the State accepted the evidence relating to life expectancy as it was contained in the report of Dr Wake. She indicated she would wish to test it. Since I am satisfied there has been a miscarriage of justice by reason of the failure to put before the learned sentencing judge evidence as to the appellant's life expectancy, it would seem the appropriate course would be to allow the appeal and quash the sentence imposed.

62 The Code, s402(4), permits the Court to impose another sentence if it is of the opinion another sentence is warranted by law. The Court, at this point, is not able to make that determination and it would seem retains the power by reference to s409 to receive further evidence in an admissible form before determining that. In those circumstances, I would adjourn the further hearing of this appeal and give leave to the appellant to present further evidence relating to his life expectancy.

63 I have had the opportunity to read the reasons of Evans J in relation to these particular grounds of appeal as they appear at pars21 to 28 of those reasons. I agree with his reasons and the conclusion he has reached and endorse his view that the legislation should be amended.