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Court of Criminal Appeal 17 August 2012

Ram v R

[2012] NSWCCA 177

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE FRESH OR NEW EVIDENCE INADMISSIBLE NO QUESTION OF PRINCIPLE

Citation: Ram v R [2012] NSWCCA 177
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2012
Judges: McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The applicant had been sentenced in the District Court at Newcastle in November 2010 for three offences: assault occasioning actual bodily harm in company, intimidation with intent to cause fear of physical harm, and threatening a witness with intent to influence her to give false evidence. The total effective sentence was three years and three months, with a non-parole period of one year and five months, commencing from October 2009. The applicant was released on parole in March 2011.

Notably, the applicant was pregnant when she entered custody and gave birth while imprisoned in March 2010. Her newborn was separated from her shortly after birth, and she remained in custody until sentencing in November 2010. The sentencing judge had before him evidence of these circumstances, including a letter from the applicant and oral evidence from her mother, and expressly acknowledged the experience as "a form of extra-curial punishment" (a term referring to punishment or hardship suffered outside the formal sentence, often as a consequence of it).

Almost twelve months after her release on parole, the applicant sought leave to appeal against the severity of her sentences. She alleged the sentencing judge had failed to give proper weight to the extra-curial punishment she suffered and to the exceptional hardship experienced by her family, particularly her child born in custody.

  • Whether the sentencing judge failed to give adequate weight to the extra-curial punishment the applicant suffered as a result of giving birth in custody and being separated from her newborn.
  • Whether the sentencing judge failed to consider the exceptional hardship suffered by the applicant's family, particularly her infant child.
  • Whether evidence sought to be relied upon for the first time on appeal, including affidavits and a social worker's report, qualified as fresh or new evidence admissible in a sentence appeal.

Decision

At the hearing, counsel for the applicant candidly conceded that the majority of the new material, including the applicant's own affidavit and a psychological report, did not meet the requirements for fresh or new evidence. Evidence qualifies as fresh or new only if it was unknown or unobtainable at the time of sentencing, or if its real significance was not then apparent. The Court of Criminal Appeal found these conditions were not met for most of the material.

The only portion pressed for admission was a limited extract from a social worker's report concerning the effect of the applicant's separation on her newborn child. The Court found that this material could also have been obtained prior to sentencing, and no explanation was offered for why it had not been placed before the sentencing judge. R A Hulme J reiterated the established principle that the Court of Criminal Appeal is a court of error reviewing a discretionary judgment, not a forum for recasting the case that was presented below.

The Court further found that even if the additional evidence were taken into account, it was not persuaded that lesser sentences were warranted. The offences were of considerable seriousness, the sentences imposed were relatively modest, and the sentencing judge had already expressly acknowledged and given weight to the circumstances of the birth in custody and the separation from the child.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence tendered for the first time on a sentence appeal must qualify as genuinely fresh or new, meaning it was unknown, unobtainable, or of unrecognised significance at the time of the original sentencing hearing.
  • Declining to receive the additional material, the Court emphasised that an appeal is not an opportunity to present a stronger or better-developed version of the case that was run below.
  • The sentencing judge had expressly acknowledged the applicant's experience of giving birth in custody and the separation from her newborn as "extra-curial punishment," and had taken it into account in fixing both the head sentence and the non-parole period. No error in that treatment was established.
  • R A Hulme J noted some doubt about the technical aptness of the term "extra-curial punishment" in this context, given that the hardship arose from a consequence of conviction and sentence rather than from any independent source. The point was left open as it did not affect the outcome.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court must be satisfied that a lesser sentence was warranted before it can intervene. Here, given the seriousness of the offences and the modest sentences, that threshold was not met.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 322, 323
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- 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