Ram v R [2012] NSWCCA 177

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ram v R [2012] NSWCCA 177 Hearing dates: 7 August 2012 Decision date: 17 August 2012 Before: McClellan CJ at CL at [1] R A Hulme J at [2] Schmidt J at [27] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - appeal - sentence - fresh or new evidence - inadmissible - no question of principle Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Criminal Appeal Act 1912 Cases Cited: BT v R [2012] NSWCCA 128 Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 Stumbles v R [2006] NSWCCA 418 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Sharleen Ram (Applicant) Regina (Respondent) Representation: Mr I McLachlan (Applicant) Ms E Balodis (Respondent) Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2009/207263 Decision under appeal Date of Decision: 2010-11-05 00:00:00 Before: Coolahan DCJ File Number(s): 2009/207263

Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2R A HULME J: Ms Sharleen Ram (the applicant) applies for leave to appeal against the severity of sentences imposed upon her in the District Court at Newcastle on 5 November 2010. 3For an offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900 and for which there is prescribed a maximum penalty of imprisonment for 7 years, his Honour Judge Coolahan imposed a fixed term of imprisonment of 4 months. 4For an offence of intimidation with intent to cause fear of physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 for which there is prescribed a maximum penalty of imprisonment for 5 years and/or a fine of 50 penalty units, there was a fixed term of imprisonment of 12 months. 5Finally, for an offence of threatening a witness with intent to influence her to give false evidence, there was a sentence of 3 years with a non-parole period of 1 year 2 months. It is not clear whether this was an offence against s 322 or s 323 of the Crimes Act. The indictment nominates the former but the wording of the count is more consistent with the latter. An element of the former but not the latter is threatening to cause, or causing, injury or detriment but this was not averred. The maximum penalties prescribed for these offences are 10 years and 7 years respectively. No point was taken in relation to this and nothing now turns on it. 6At the applicant's request, a further offence of influencing a witness (Crimes Act s 323(a)) was taken into account when sentence was imposed for the third offence. 7There was a degree of partial accumulation of the sentences whereby the total effective sentence was one of 3 years 3 months with a non-parole component of 1 year 5 months. The sentence took effect from 27 October 2009. The applicant was released to parole on 26 March 2011. 8A notice of application for leave to appeal containing a single ground of appeal was filed almost 12 months after the applicant's release on parole. It is stated in the written submissions for the applicant that "no issue is otherwise taken on appeal with the individual and/or total sentences imposed". The ground of appeal is: The sentencing judge erred in imposing the individual and/or total sentences imposed in that he: a) failed to give full and proper weight to the extra-curial punishment suffered by the applicant; and b) failed to consider the exceptional hardship suffered by the applicant's family, particularly her child born in custody, as a result of the applicant's incarceration. 9It is unnecessary to refer to the facts of the offences, the applicant's subjective circumstances generally or findings made by the learned judge. The ground of appeal is confined to a discrete issue concerned with the fact that the applicant was pregnant when she went into custody on 27 October 2009. She had been on bail after being charged with the first and second offences but was refused bail following commission of the third offence. She gave birth in a hospital in March 2010 but remained in custody until she was sentenced in November 2010. At the time of sentencing she also had a child who was then 2 years of age. 10The applicant was represented by counsel at the hearing in the District Court. No case was sought to be made on the basis of "extra-curial punishment" or "exceptional hardship suffered by the applicant's family". It has not been contended that counsel was in any way derelict in his duty to his client. It is also apparent from the transcript of the proceedings on sentence that the applicant had the same solicitor acting on her behalf for at least a year prior to sentencing. 11His Honour referred in his sentencing remarks to evidence that the applicant "had to give birth to her youngest son in an environment with officers watching and being handcuffed to the bed. She said that her son was only hours old when he was taken from her and she was returned to prison" (ROS 13). This was derived from a letter from the applicant that was tendered at the sentence hearing. She did not give evidence herself. The letter also included that she had "emotional issues, from not being able to nurture my two babies" and that she had been able to remain "compassionate and caring ... even when I lost my breast milk from depression and was unable to continue expressing for my new born". His Honour said that he accepted "in general terms the material contained in the letter from the offender" (ROS 16). 12His Honour also referred to evidence of the applicant's mother, which included that "her daughter was extremely upset when she was separated from her recently born baby but said that she decided to focus her energy on being positive and what she can do to improve and assist herself when she is released" (ROS 16). His Honour stated that he accepted the evidence of the applicant's mother. Her oral evidence included that the child had been taken from the applicant straight after the birth, that the applicant was sorry for having missed the first six months of his life, and that she was receiving counselling for post natal depression (POS 19 - 20). 13His Honour said that he was satisfied "that the whole experience of being in custody, giving birth and having a child removed from her must have been traumatic and remains traumatic and is in a real sense a form of extra-curial punishment" (ROS 16). 14The aptness of the description "extra-curial punishment" is doubtful given that the matter at issue is a consequence of conviction and sentence which does not relate to the offences the applicant committed: see Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [24] - [36] per James J. Perhaps the learned sentencing judge was using the term in the "expanded sense" discussed by Basten JA in Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [85] - [97]. However, it is unnecessary for the disposition of this application to dwell upon this. 15At a later stage in his sentencing remarks the judge announced a number of favourable findings concerning subjective matters. They included that the applicant had no significant criminal record; she had good prospects of rehabilitation and was unlikely to re-offend; her remorse was genuine; she had pleaded guilty; and that there should be a finding of special circumstances. His Honour added, "I have already referred to the aspect of extra-curial punishment in her case which, in my view, is relevant to both the head sentence and the non-parole period." He also said that there were additional reasons for a finding of special circumstances which included that it was the applicant's first time in custody and that she had young children (ROS 21). 16There was no criticism in the applicant's written submissions of the manner in which the sentencing judge dealt with the evidence that was before him. What was originally sought in the formulation of the ground of appeal, and in the written submissions in support of it, was to impugn his Honour's treatment of the issue of "extra-curial punishment" and to create a new issue of "exceptional family hardship" on the basis of evidence which was said to be fresh or new. 17In the written submissions the applicant sought to rely upon a number of affidavits which were proposed to be read at the hearing. Their contents were summarised in the written submissions as follows: An affidavit by the applicant: "setting out in full detail the precise circumstances surrounding the birth of her second child ...; the circumstances immediately following his birth; and the conditions the applicant experienced after her separation from her child on the same day - including experiencing ongoing depression and an inability to continue to express milk." (AWS [15]) "Additional/updated medical evidence ... setting out the precise effect on the applicant of the circumstances surrounding the birth of her child and the effect on the applicant of her separation with her child from the day of his birth up until her release from custody over a year later". (AWS [16]) "Medical evidence ... setting out the effect on the new born baby of his separation from the applicant". (AWS [21]) 18At the outset of the hearing of the application, counsel for the applicant acknowledged the objection by the Crown to the reading of these affidavits. It was then, with commendable frankness and candour, conceded that the affidavits of the applicant, and a psychological report annexed to an affidavit by the applicant's solicitor, did not meet the requirements of fresh or new evidence that this Court may receive on an appeal against sentence. These concessions were appropriate. None of the material could be said to be that which was unknown or was unobtainable at the time of the sentencing hearing in the court below, nor did it relate to something the real significance of which was not apparent: see, for example, Stumbles v R [2006] NSWCCA 418 at [7] - [10] per Latham J. The evidence simply provided further details of matters that were already the subject of evidence. 19Another solicitor's affidavit annexed a report of a social worker, Ms Mary Jelen. It recounts various matters relating to the applicant's background that have no relevance to the ground of appeal; sets out further matters relating to the birth of her child which would have been known to the applicant well prior to the sentence hearing; gives second-hand accounts of the psychological impacts of giving birth to a child in custody on the applicant; refers to matters the applicant has experienced after having been released on parole; and purports to offer opinion evidence as to the "range of social, behavioural and psychological difficulties in children" separated by a parent's imprisonment which are very doubtfully within the author's expertise. 20Ms Jelen's report concludes with the following: Liz Bachas from The Samaritan Foundation has confirmed Ms Ram has been reunited successfully with her children. Ms Bachus [sic] noted that the impact of separation and loss on the children was significant on all aspects of their development. However, she also noted that the mother and extended family have worked hard to minimise and eliminate difficulties experienced by the children. There is no doubt the children have adapted and have now formed a primary and healthy attachment to their mother. 21Counsel for the applicant conceded that the social worker's report "suffers from the same fate" as the earlier mentioned affidavits but maintained that Ms Jelen's reference to the hardship occasioned to the children was a matter that this Court could properly take into account. It was accepted that this portion of the evidence was not "fresh or new" but "falls within that exceptional category where the Court receives it, albeit for the first time". 22I take this to be a reference to unusual cases in which this Court has received further evidence even though not strictly fresh or new: see the very useful discussion of principles generally relating to the admission of further evidence on an appeal against sentence by Simpson J in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R at [104] - [121]. 23The evidence before the sentencing judge supported the favourable findings that he made in the assessment of sentence. The evidence now sought to be relied upon is really an attempt to make a better case for more favourable findings. Those findings were sought in support of a submission that the applicant should have received a sentence comprising a non-parole period expiring on the day of sentence. It was pointed out to counsel that any order this Court made could not change the fact that the applicant had remained in custody after sentencing for a further period of almost 5 months until she was released on parole in March last year. It was then submitted that there should be a shorter parole period. The current period of parole is due to expire next January. 24The evidence in the limited portion of the social worker's report that was ultimately relied upon could readily have been obtained prior to sentencing. No attempt has been made to explain why it was not placed before his Honour. As was recently observed by Adamson J in BT v R [2012] NSWCCA 128 at [20], with reference to Zreika v R [2012] NSWCCA 44 at [79] - [81]: [T]his Court is a court of error. In sentencing appeals the Court is reviewing the exercise of a discretionary judgment. An appeal to this Court is not an opportunity to recast the case presented to the sentencing judge. 25I am not satisfied that receipt of even the limited portion of the material that was pressed for admission is justified in the interests of justice. The offences were of quite some seriousness and the sentences imposed were relatively modest. I am not persuaded that lesser sentences were warranted and should have been passed even if the additional evidence were to be taken into account: s 6(3) of the Criminal Appeal Act 1912. 26I propose the following order: Leave to appeal refused. 27SCHMIDT J: I agree with R A Hulme J.