New South Wales Court of Criminal Appeal CITATION: Terry Peter Stumbles v R [2006] NSWCCA 418 HEARING DATE(S): 27 November 2006, 13 December 2006 JUDGMENT DATE: 21 December 2006 JUDGMENT OF: Sully J at 1; Hidden J at 2; Latham J at 3 DECISION: 1. Leave to appeal granted ; 2. Appeal allowed in part; 3. Quash the sentence imposed on Count 3 on 13 May 2005 and in lieu, the applicant is sentenced to a non parole period of 8 months, commencing 13 May 2006, expiring 12 January 2007, with a balance of term of 16 months expiring 12 May 2008. The applicant is to be released on 13 January 2007 CATCHWORDS: Sentence appeal - Accessory Before the Fact to Steal Motor Vehicle - Fresh Evidence - Disparity - Hardship to offender's family. R v Munday [1981] 2 NSWLR 177 R v Bailey (1988) 35 A Crim R 458 R v Ehrenburg NSWCCA (unreported) 14 December 1990 R v Ashton (2002) 137 A Crim R 73 Iglesias v Regina [2006] NSWCCA 261 CASES CITED: R v Abou-Chabake [2004] NSWCCA 356 (2004) 149 A Crim R 417 R v Poole [2006] NSWCCA 93 R v Goodwin (1990) 51 A Crim R 328 R v Fordham (1997) 98 A Crim R 359 Tatana v Regina [2006] NSWCCA 398 R v T (1989) 47 A Crim R 29 R v Edwards (1996) 90 A Crim R 510 PARTIES: Applicant - Terry Peter Stumbles Respondent - Regina FILE NUMBER(S): CCA 2006/1003 COUNSEL: Applicant - MC Ramage QC Respondent - P Miller SOLICITORS: Applicant - Voros Lawyers Respondent - S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/41/0270 LOWER COURT JUDICIAL OFFICER: Phelan DCJ LOWER COURT DATE OF DECISION: 13 May 2005 IN THE COURT OF CRIMINAL APPEAL 2006/1003 SULLY J HIDDEN J LATHAM J 21 DECEMBER 2006 TERRY PETER STUMBLES v REGINA Judgment 1 SULLY J : I agree with Latham J. 2 HIDDEN J : I agree with Latham J. 3 LATHAM J : The applicant, Terry Peter Stumbles, seeks leave to appeal against sentences imposed on 13 May 2005 by his Honour Judge Phelan (the Judge) for three counts of Accessory Before the Fact to Steal Motor Vehicle, each carrying a maximum penalty of 10 years imprisonment. On each of two counts the applicant received a fixed term of one year, commencing 13 May 2005. On the remaining count the applicant received a sentence of two years imprisonment, with a non parole period of one year commencing 13 May 2006. Thus, the aggregate sentence was one of 3 years imprisonment, with a non parole period of 2 years. 4 Seven grounds of appeal were filed. When the matter came before this Court, it became apparent that, were the applicant to succeed on the fresh evidence ground, there would be no necessity to address the remaining grounds. Indeed, on the hearing of the appeal, senior counsel for the applicant concentrated his submissions on the fresh evidence ground, no doubt in recognition of where the strengths of the application lay. Having regard to the conduct of the application and the views that I have formed of the material placed before the Court by way of affidavit, it is sufficient to note that none of the grounds, with the exception of the fresh evidence ground and the parity ground, would justify the intervention of this Court. 5 It is not necessary to canvass the facts relating to the applicant's offences in any detail. Over a three month period from late October 2003 to late January 2004, the applicant instructed another person on three occasions to steal specific motor vehicles. On two of those occasions, the person who stole the vehicle was Stephen Fairall. The applicant was a motor mechanic who, according to intercepted telephone conversations with his co-offenders, wished to use parts obtained from the stolen vehicles. The offences were detected by a task force set up to investigate the re-birthing of stolen cars. 6 The applicant pleaded guilty to all three charges at the Local Court on 15 December 2004. His criminal history consisted of summary property offences in 1997 and 2002 for which he was fined and placed on a 12 month bond. The applicant's subjective circumstances were unremarkable, save for the fact that his wife, from whom he was separated at the time of the offences, had responsibility for the care of their two sons, both of whom are autistic. The older of the two boys had been diagnosed some time prior to sentence, but the precise diagnosis of the younger boy's condition did not emerge until after sentence. This application is therefore directed to the reception by this Court of evidence that was not before the sentencing judge and to the question whether, assuming the Court receives the evidence, that material warrants a reduction in the sentences presently being served. The Principles Governing the Reception of Fresh Evidence 7 Generally speaking, the Court will not receive evidence of events occurring after sentence has been imposed, for sound policy reasons, namely that "the review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court" : R v Munday 2 NSWLR 177 at 178 per Street CJ. 8 This general principle will, however, give way to exceptional circumstances, the nature of which may vary from case to case. There have been a number of occasions when an appellate court has allowed the reception of fresh evidence relating to the medical and/or psychiatric condition of the offender : see R v Bailey (1988) 35 A Crim R 458 ; R v Ehrenburg NSWCCA (unreported) 14 December 1990 ; R v Ashton (2002) 137 A Crim R 73 ; Iglesias v Regina [2006] NSWCCA 261. In all of these decisions, the special and unusual circumstances justifying departure from principle were stressed. It is also relevant to note that Ehrenburg concerned fresh evidence relating primarily to the special needs of an infant born prematurely shortly after sentence was passed, although the health of the mother (the offender) was also a factor. 9 The basis upon which the Court determines the reception of such fresh evidence has been expressed in terms of the existence or effect of the relevant condition being unknown or not fully appreciated at the time sentence was passed : Bailey ; Ehrenburg. In this respect, the rationale is consistent with those decisions dealing with the reception of fresh evidence after trial and conviction, a number of which were examined by Kirby J in R v Abou-Chabake [2004] NSWCCA 356 at [63] ; (2004) 149 A Crim R 417 at 427ff (cited with approval by Simpson J in R v Poole [2006] NSWCCA 93). In short, fresh evidence is evidence not available to the applicant at the time of sentence, actually or constructively. Evidence is constructively unavailable if it could not have been discovered or was not available by the exercise of due diligence. 10 There is no distinction for these purposes between fresh evidence relating to the health of an offender, which renders the custodial conditions more harsh than was apparent at the time of sentence, and fresh evidence relating to the health of a family member that brings into play considerations of exceptional hardship to an offender's partner and children occasioned by that offender's incarceration. In both instances, the absence of the evidence, or the failure to appreciate its real significance, at the time of sentence, raises the prospect that the additional material may have had a real bearing on the exercise of the sentencing discretion : R v Goodwin (1990) 51 A Crim R 328 ; R v Fordham (1997) 98 A Crim R 359. The Evidence Available on Sentence 11 The proceedings on sentence commenced on 11th February 2005, continued on 23 March 2005, 5 April 2005 and concluded with the delivery of remarks on sentence on 13 May 2005. The co-offender Mr Fairall gave evidence in the course of his own proceedings, conducted jointly with the applicant on 23 March 2005. Mr Fairall was sentenced on 11 May 2005, a subject to which I shall return later in these reasons. 12 A presentence report dated 4 February 2005 was Exhibit 2 in the proceedings. Under the heading "Relevant Family/Social Factors", the Probation and Parole Officer noted that :- the offender has maintained a 12 year relationship with his wife, however reports that they have lived apart for the last four years whilst still maintaining a relationship. Mr Stumbles and his wife have two children aged four and two years. He explained that their oldest child has been diagnosed with autism and requires significant constant care by his parents. He further disclosed that their younger child is also displaying behaviours consistent with autism and is more difficult to look after than his older sibling. This care also involves expenses associated with their special needs. 13 Exhibit A on sentencing was a report under the hand of Katherine Barrier of Duffy Barrier Robilliard, psychologists, dated 10 February 2005. Within the body of that report, it is noted that the applicant has two sons aged four and two. Further :- his elder son has been diagnosed as autistic and attends a special school. [The applicant] spoke at some length of the difficulties he and his wife encounter in the raising of an autistic child, as well as the depths of his own sadness and loss at having a son who is unable to express warmth and affection. He said that whilst he and his wife remain on amicable terms and he visits the family home on most days, he has moved back to reside with his parents. 14 The applicant did not give evidence in the course of the proceedings, nor was any evidence called on his behalf. In the course of submissions made by his counsel on 23 March 2005, the applicant's "very complex and difficult domestic situation" was referred to, in the context of the applicant's two small children. It was submitted that "both of them suffer from autism and in the case of the younger child, owing to his tender years, it's not possible to make a final diagnosis, at this stage, but I am instructed that he is certainly displaying signs of Asperger's syndrome." A short time later, the following submission was made :- Additionally, he has the onerous burden of a difficult family life and although he has a great deal of love for his wife and two sons, I would ask your Honour to find that his role in those three people's lives and the need for a constant level of support from him, particularly in relation to his two sons, is a factor which would weigh heavily upon the court in sentencing Mr Stumbles to a full-time sentence of imprisonment. 15 These submissions were the closest that counsel came to invoking the principle that exceptional hardship to members of an offender's family is capable of justifying the extension of some leniency in the determination of sentence. Unfortunately, the only evidence before the Judge touching upon the nature and extent of that hardship was contained within Exhibits 2 and A. There was no meaningful explanation of "significant constant care", or of the special needs of an autistic child, or of the difficulties encountered by the applicant and his wife, or of "behaviours consistent with autism". More importantly, the evidence suggested that the applicant was not spending significant time assisting his wife with the care of their children, beyond visiting them "on most days", yet counsel referred to "a constant level of support". 16 Against this background, his Honour merely noted that the applicant had maintained a 12 year relationship with his wife, that they had separated, "although maintaining close contact with his visiting the house very regularly and taking an interest in his two children, both of whom, it would appear, tragically have autism, [and that] this, of course, requires much more demanding attention to those children". It was accepted that the applicant was "devoted to his children and performs his role in a very conscientious fashion." (ROS 10) The "Fresh" Evidence 17 The affidavits of the applicant's wife dated 9 October 2006 and 6 December 2006 establish that the applicant's older son was diagnosed as autistic in 2002. That child, B, is presently classified as midrange autistic. The younger child, S, was diagnosed on 27 July 2005 with autism spectrum disorder, towards the high range. Although the applicant and his wife describe themselves as separated, the applicant slept every night at his wife's home in a separate bedroom and was fully involved in the day-to-day care of the children prior to sentence. 18 After B was diagnosed, the applicant's wife spoke to a specialist concerning her fears that the younger child might also be autistic. The applicant's wife received advice to the effect that it was very uncommon to have two autistic children and that the younger child might well be mimicking the older child. As at the date of sentence, both the applicant and his wife were unsure of the younger child's true condition and were hopeful that there was some other explanation for his problems. 19 In May 2005, the younger child was just over two years of age with a mental age of approximately 6 months. He had only just commenced to walk upright with assistance. He slept well and had a fairly fixed routine which involved a lot of sleeping and bottle feeding. In May 2005 the older child was four years of age. He was still in nappies, could not speak, was very easily frustrated and would scream and throw objects. At this time, the applicant's wife was able to cope with the demands of both children with the applicant's assistance. The older child's demands were more pervasive. 20 As at October 2006, neither child was able to speak or communicate verbally in a coherent or consistent manner. Neither child is able to dress himself and the younger child is unable to feed himself. The older child can partially feed himself under supervision. Both children are extremely sensitive to any noise. The younger child screams uncontrollably when disturbed by noise and wakes up to five times a night, crying and clutching his hands over his ears. The children do not relate to each other at all, and are not able to play together or relate in any way to other children. The children have to be bathed separately and cannot be let out of the house into the garden, nor can they be left unaccompanied with other children. 21 The older child attends a school for autistic children each weekday between 9 a.m. and 3 p.m. He travels to and from school by bus. The applicant's wife rises between 5 a.m. and 5:30 a.m. in order to prepare the older child for his departure for school at 8 a.m. Each child requires a fixed routine which, if disturbed, results in screaming and uncontrollable behaviour. The younger child attends an early intervention program for two and a half hours on Friday. At all other times, the applicant's wife has the sole care and responsibility for the children since the applicant's incarceration. Not surprisingly, this regime has taken its toll on her health. 22 Before the applicant was sentenced, he prepared breakfast each day for his sons and dressed the older child. He attended to the toilet and hygiene of both boys and would return to the wife's home after work by 4:15 p.m. so that the family might walk together. The boys were distressed when this routine was broken. The applicant would bathe both boys upon their return to the home while his wife prepared the evening meal. The applicant would then dress the boys for bed and play with them until dinner. After dinner the applicant assisted the boys with toileting needs and put them to bed at 7:30 p.m. The applicant also assisted during the night when either of the boys awoke and required attention. 23 Since October 2006, the difficulties outlined above have progressively increased, particularly in relation to the younger child. Although he is still in nappies, he is now fully mobile and more demanding. It is more difficult to calm the younger child when he becomes aroused and violent. He is reportedly very strong and tall for his age and strikes the applicant's wife when frustrated. The younger child also bites and pinches the older child. The applicant's wife has been advised that the younger child's condition is likely to worsen. He has also developed self injurious behaviour, including biting himself when frustrated. These changes in the behaviour of her sons are attributed by the applicant's wife to the change of routine occasioned by the applicant's imprisonment. 24 The reasons for the absence of detailed evidence, on the subject of the applicant's involvement in the life of the children and their respective behavioural problems, in the course of the sentencing proceedings remain somewhat unclear. The Court did not receive an affidavit from counsel representing the applicant before the Judge, although the applicant's present solicitor and the Crown's instructing solicitor swore affidavits containing aspects of conversations that each of them had with the applicant's former counsel, suggesting that the applicant had instructed counsel not to involve his wife in the proceedings. 25 The Court ought to be reluctant to attribute incompetence to the applicant's former counsel in the absence of more reliable evidence. No doubt, counsel could have presented this feature of the applicant's case in a more comprehensive fashion, but it appears that the applicant's instructions confined the conduct of the matter. In any event, to the extent that the applicant now wishes to rely upon the affidavit evidence of his wife and himself, relating to the condition of the applicant's older son, that evidence was relevantly available at the time of sentence and does not therefore qualify as "fresh". 26 However, the position is different in my view with respect to the younger child, S. Notwithstanding the fact that the Judge noted the autism of both children, S. had not been diagnosed as at the date of sentence and the full extent of his condition was yet to emerge. The affidavit evidence from the applicant's wife throws new light upon those aspects of S' behaviour that were known to the applicant and his wife, albeit not fully appreciated. Importantly, it is the confirmed diagnosis of S, in combination with the behavioural problems already afflicting B, that have placed significantly greater strain upon the applicant's wife and highlighted the relevance of the applicant's imprisonment to the welfare of the family. This is, in my view, one of those exceptional cases that justify a departure from the general rule prohibiting the reception of evidence of post-sentencing matters. 27 Accordingly, I would receive the fresh evidence on this limited basis. It appears to me that, had this material been before the sentencing judge, the submissions touching upon the hardship occasioned to the applicant's family by his imprisonment would have warranted significantly more attention on the question of sentence than was given, having regard to the limited nature of the contents of the pre-sentence report and the psychologist's report. Re-Sentencing the Applicant 28 The offences were objectively serious, in that the applicant was the moving force behind the theft of two four-wheel-drive motor vehicles in late October and early November 2003, and the theft of a Holden Calais in early February 2004. The telephone intercepts and other electronic communications between the applicant and Fairall establish that the applicant made specific requests of, and gave specific instructions to, Fairall, including not to burn the vehicle until parts had been retrieved and advising Fairall to wear gloves to avoid fingerprints being located in the vehicle. 29 Following the applicant's arrest on 10 June 2004, the applicant informed police that he knew Fairall only in a professional sense, in that he had purchased parts and motor vehicles from him, which he believed to be legitimate. The applicant continued to deny that he was in any way responsible, either directly or indirectly, for the theft of any motor vehicle, in spite of the telephone intercept material. The applicant obviously maintained those denials until the entry of his pleas at the Local Court on 15 December 2004. He is entitled of course to the full measure of the discount applicable to the utilitarian value of his pleas. 30 As I have already noted, his prior criminal history is of a minor nature, although three Goods in Custody offences for which the applicant was convicted and fined on 7 May 2004 related to motor vehicles. The applicant's driving history reflected his occupation and included a significant number of speeding offences and negligent driving offences. The applicant had completed a Community Service Order in 1996 in relation to an offence of Drive Whilst Disqualified. 31 The applicant is the youngest of his parents' three children, one of whom died in an accident in 2001. The applicant was particularly close to that sibling and is estranged from his elder brother. He continues to receive the support of his parents and his former wife. Significantly, the applicant attained his Higher School Certificate at a level that ensured his entry to university. However, he chose to complete a panel beating apprenticeship and was employed as a workshop foreman in a panel beating business at the time of the offences. A reference from his employer attested to his position of responsibility and the high regard in which he is held by his work associates. 32 The applicant has expressed remorse for his offending, particularly given the consequences to his wife and children. They have suffered as a result of their separation from the applicant to an unforeseen extent. Whilst it is true that the applicant is not responsible for the full-time care of the children, the importance of his assistance on a daily basis should not be overlooked. This case is on the cusp in terms of whether the hardship to the applicant's family is so exceptional that a court should draw back from imposing a sentence of imprisonment that would otherwise be entirely appropriate: see R v T (1989) 47 A Crim R 29; R v Edwards (1996) 90 A Crim R 510. 33 It is relevant to note at this stage that the applicant's co-offender Fairall was sentenced by the Judge in respect of 19 offences, including 10 counts of Steal Motor Vehicle, 6 counts of Receiving, 2 counts of Obtaining Money by Deception, one count of Larceny and 3 further Goods in Custody offences on a Form One. Two of the 10 offences relating to the theft of motor vehicles were those offences in respect of which the applicant received wholly concurrent fixed terms of one year imprisonment. The applicant received a wholly accumulated sentence of two years imprisonment for accessory before the theft of the Holden Calais. 34 Fairall was seven years younger than the applicant and was sentenced to an aggregate term of 5 years imprisonment with a non parole period of two and a half years for a spate of offending between February 2003 and February 2004. Fairall had no criminal history and had also entered pleas of guilty in the Local Court. However, he had also maintained his denial of the offences when questioned by the police. Even allowing for a finding of fact that attributed a directing role to the applicant in the theft of three motor vehicles, Fairall's criminality was patently more extensive than the applicant's. It is difficult to reconcile the non parole period imposed upon Fairall with that imposed upon the applicant. Indeed, the Crown conceded that disparity had arisen but maintained that the objective criminality of the applicant's offences could not be reflected in any lesser sentence. 35 I agree with the Crown's submission to the extent that a head sentence of 3 years is appropriate to the commission of three offences, each carrying a maximum penalty of 10 years imprisonment. The applicant received the benefit of wholly concurrent sentences on the first two offences in time. Those sentences expired on 13 May 2006. To the extent that the Court proceeds to re-sentence the applicant, only the sentence in respect of Count 3 remains. 36 The combination of the exceptional circumstances arising out of the long-term condition of the applicant's children and the disparity between the non-parole period to be served by the applicant and the non parole period to be served by Fairall has led me to the conclusion that a greater alteration in the proportion of the aggregate non-parole period to the aggregate head sentence is justified. : see Tatana v Regina [2006] NSWCCA 398. 37 Accordingly, I propose the following orders :- 1. Leave to appeal granted. 2. Appeal allowed in part. 3. Quash the sentence imposed on Count 3 on 13 May 2005 and in lieu, the applicant is sentenced to a non parole period of 8 months, commencing 13 May 2006, expiring 12 January 2007, with a balance of term of 16 months expiring 12 May 2008. The applicant is to be released on parole on 13 January 2007. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.