Citation: Soyke v R [2016] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 10 June 2016
Judges: Basten JA, Schmidt J (with reasons), Wilson J (agreeing)
Background
The appellant pleaded guilty in the District Court to four computer-related offences under the Criminal Code Act 1995 (Cth), each carrying a maximum penalty of 10 years imprisonment. A further 17 offences of attempted unauthorised access to restricted data were taken into account on sentence under s 16BA of the Crimes Act 1914 (Cth). The offending involved a course of conduct against multiple victims over a period of time, committed while the appellant was on a bond for similar offending.
On 15 October 2015, Culver DCJ sentenced the appellant to a total of 3 years imprisonment, with release due on 14 October 2016 subject to a $5,000 recognisance. The sentences for individual sequences were partially accumulated, with the longest single term being 2.5 years for unauthorised access with intent to commit a serious indictable offence.
The appellant sought leave to appeal on grounds that the sentencing judge had misassessed the seriousness of the offences and that the sentence was manifestly excessive. He later filed a notice of motion seeking to rely on two expert reports, including a psychologist's report prepared after sentencing, in support of a third ground alleging the sentencing exercise had miscarried due to unaddressed evidence of addiction.
Legal Issues
- Whether the sentencing judge erred in her assessment of the seriousness of the offences
- Whether the total sentence of 3 years imprisonment was manifestly excessive
- Whether two expert reports (one pre-sentence, one post-sentence) were admissible as fresh or new evidence on appeal under r 25A of the Criminal Appeal Rules
- Whether a third ground of appeal, alleging a miscarriage due to lack of addiction evidence, could be pursued
Decision
Admissibility of the expert reports
Schmidt J applied the principles from Khoury v R [2011] NSWCCA 118, which distinguish between "fresh" evidence (unavailable and not discoverable with reasonable diligence at trial) and "new" evidence (available but not used). New evidence is not admissible on appeal. The pre-sentence report from Dr Butler, a consultant paediatrician, had been available at the sentencing hearing but was not tendered; it therefore constituted new evidence and was inadmissible. The post-sentence psychological report from Ms Robilliard was based on an interview conducted months after sentencing, and the Court found that its substance reflected opinions the psychologist could have formed earlier, had she been engaged in time. The Court emphasised that the relevant question is not when the report was written, but whether the underlying psychological condition and the expert's opinion could have been placed before the sentencing judge with reasonable diligence.
Both reports failed to meet the threshold for admissibility. Because the reports were inadmissible, the notice of motion and the proposed third ground of appeal were dismissed.
Assessment of seriousness and manifest excess
The Court found no error in Culver DCJ's assessment of the seriousness of the offending. The offences attracted maximum penalties of 10 years imprisonment, and the additional 17 offences taken into account under s 16BA required the primary sentence to be increased, consistent with the approach in R v Lamella [2014] NSWCCA 122. The sentencing judge had appropriately balanced the mitigating factors, including the appellant's guilty plea, evident immaturity, references, low assessed risk of reoffending, and prospects of rehabilitation given his youth, against the need for general and specific deterrence, particularly given the prior bond for similar conduct.
The Court concluded that a custodial sentence was required given the totality of the offending, the ongoing course of conduct, and the fact that it was committed while on bond. No error was established in the individual sentences or in the approach to concurrence and accumulation.
Orders Made
- Notice of motion dismissed
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The distinction between "fresh" and "new" evidence is critical on sentence appeals: where a report was available before sentencing but not tendered, it constitutes inadmissible new evidence regardless of its potential relevance.
- A post-sentence psychological report is not automatically treated as fresh evidence simply because it was prepared after sentencing; the court looks to whether the underlying condition and expert opinion could have been established with reasonable diligence before the sentencing hearing.
- Under s 6(3) of the Criminal Appeal Act 1912 (NSW), facts arising entirely after sentencing cannot ground appellate error, because the sentencing judge cannot be faulted for not accounting for facts that did not yet exist.
- Where an offender asks the court to take additional offences into account under s 16BA of the Crimes Act 1914 (Cth), the primary sentence must be increased to reflect those matters, consistent with the approach to Form 1 offences in New South Wales.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that sentences within a wide range below the 10-year maximum, imposed for a course of serious cyber-offending with aggravating features, will not readily attract appellate intervention where the sentencing judge has properly balanced competing considerations.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 477.1, 477.2, 478.1, 478.3, 11.1
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 25A
- Children (Criminal Proceedings) Act 1987 (NSW), s 33
Cases
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
- R v Lamella [2014] NSWCCA 122
- R v Stevens [1999] NSWCCA 69
- Lawless v The Queen [1979] HCA 49; 142 CLR 659