Bekink v The Queen
[1999] WASCA 160
•2 SEPTEMBER 1999
BEKINK -v- R [1999] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 160 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:95/1999 | 12 AUGUST 1999 | |
| Coram: | IPP J ANDERSON J HEENAN J | 2/09/99 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| PDF Version |
| Parties: | WILLEM JOHANNES BEKINK THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Offender subject to "restricted management regime" in prison Shortage of beds within prison system Involvement in regime purely fortuitous Circumstance not known to sentencing Judge Intervention by appellate court not appropriate |
Legislation: | Nil |
Case References: | Anderson v The Queen (1997) 92 A Crim R 348 Astill (No 2) (1992) 64 A Crim R 289 Bailey v Director of Public Prosecutions (1988) 35 A Crim R 458 Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 Eliasen v The Queen (1991) 53 A Crim R 391 Juli (1990) 50 A Crim R 31 Krakouer v The Queen [1999] WASCA 147 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 Postiglione v The Queen (1997) 189 CLR 295 R v Boon, unreported; CCA of NSW; 17 November 1983 R v Eliasen (1991) 53 A Crim R 391 R v Perez-Vargas (1986) 8 NSWLR 559 R v Rostom [1996] 2 VR 97 R v Smith (1987) 44 SASR 587 R v Todd (1976) Qd R 21 R v Vachalec (1981) 1 NSWLR 351 R v Williams, unreported; CCA SCt of Vic; Library No BC9503957; 18 September 1995 Davies and Gorman v The Queen (1979) 68 Cr App Rep 319 Many v The Queen (1990) 51 A Crim R 54 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BEKINK -v- R [1999] WASCA 160 CORAM : IPP J
- ANDERSON J
HEENAN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Offender subject to "restricted management regime" in prison - Shortage of beds within prison system - Involvement in regime purely fortuitous - Circumstance not known to sentencing Judge - Intervention by appellate court not appropriate
Legislation:
Nil
Result:
Application for leave to appeal refused
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Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr R E Cock QC & Ms V A Prentice
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson v The Queen (1997) 92 A Crim R 348
Astill (No 2) (1992) 64 A Crim R 289
Bailey v Director of Public Prosecutions (1988) 35 A Crim R 458
Bailey v Director of Public Prosecutions (1988) 62 ALJR 319
Eliasen v The Queen (1991) 53 A Crim R 391
Juli (1990) 50 A Crim R 31
Krakouer v The Queen [1999] WASCA 147
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Postiglione v The Queen (1997) 189 CLR 295
R v Boon, unreported; CCA of NSW; 17 November 1983
R v Eliasen (1991) 53 A Crim R 391
R v Perez-Vargas (1986) 8 NSWLR 559
R v Rostom [1996] 2 VR 97
R v Smith (1987) 44 SASR 587
R v Todd (1976) Qd R 21
R v Vachalec (1981) 1 NSWLR 351
R v Williams, unreported; CCA SCt of Vic; Library No BC9503957; 18 September 1995
Case(s) also cited:
Davies and Gorman v The Queen (1979) 68 Cr App Rep 319
Many v The Queen (1990) 51 A Crim R 54
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1 IPP J: On Christmas Day 1998 there was a riot in Casuarina Prison. The prison authorities responded by imposing a "restricted management regime", commonly known as a "lock down", on half of the prisoners in the prison. The other half are imprisoned under the usual or standard conditions of imprisonment. The lock down regime is far more onerous and severe.
2 The applicant was sentenced to 3 years' imprisonment for unlawful wounding. An order was made for eligibility for parole. Since 11 May 1999, when his imprisonment commenced, the applicant has been in custody in Casuarina Prison and he has been allocated to that half of the prisoners to whom the lock down applies. On this ground alone he applies for leave to appeal against sentence. In this regard it is not submitted that the prison authorities have acted unlawfully in imprisoning the applicant under the conditions applicable to him. No challenge is made in regard to the power of the prison authorities to act as they have done. The sole issue before this Court is whether the applicant is entitled to a reduction in his term of imprisonment because of the way he has been kept in custody.
3 The applicant was imprisoned after the riot, he has infringed no prison regulations and it is not said that there has been anything inappropriate about his conduct while in prison. Indeed, allocation to one or other of the standard or the lock down categories of imprisonment is purely arbitrary. Allocation does not appear to depend on whether the prisoners concerned were involved in the riot (and the applicant was not so involved) or whether they have otherwise been guilty of offences committed in prison, or even been classified as unco-operative; nor does it depend on the offences of which the prisoners were convicted. Allocation depends, as it were, on the luck of the draw, and it is merely a matter of chance that the applicant has been allocated to the lock down category.
4 The lock down conditions under which the applicant has been incarcerated are set out in detail in the reasons to be published by Heenan J. I shall mention the more salient features. Apart from short periods when the applicant is released from his cell to obtain his meals and his medication, he is confined to his cell each day, save for a recreation period of 2 hours 15 minutes. In other words, the applicant is confined to his cell for more than 21 hours a day. The cell is approximately 3.5 metres by 3.5 metres in area. In the recreation period of 2 hours 15 minutes, the applicant is allowed no further than the corridor within his unit, which is approximately 20 to 30 metres in length. The applicant shares the unit with 26 other prisoners and all are let out of their
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- cells at the same time (that is, for recreation purposes in the same corridor). The applicant has no access to natural light or fresh air, either during the recreation period or at all. He has no recreational or physical activity apart from walking up and down the corridor together with the 26 other prisoners.
5 Confinement in a cell for a substantial period is a severe form of punishment. This is recognised by the Prisons Act 1981 which provides for confinement as a form of punishment for offences committed while in prison. Thus, s 78(1)(a) provides that where a minor prison offence has been committed, a penalty of "separate confinement in a punishment cell for a period not exceeding seven days" may be imposed. In terms of s 79(1) of the Prisons Act, where a prisoner is convicted of an "aggravated prison offence", he may be sentenced to "separate confinements in a punishment cell for a period not exceeding 28 days". This is subject to the rider that:
"A person undergoing punishment under this sub-paragraph shall spend 48 hours out of the punishment cell after each period of seven days in separate confinement and, unless the prisoner is in custody only for the purpose of undergoing that punishment, any such period of 48 hours shall not be reckoned as time spent undergoing the punishment of separate confinement."
- Section 82 provides that where a penalty of confinement in the prisoner's sleeping quarters or separate confinement in a punishment cell is imposed, the prisoner so confined "shall have the means of taking air and exercise for not less than one hour each day …".
6 It is apparent that the applicant is being kept under conditions not significantly different from those applicable to prisoners who have committed offences in prison, and for a far longer period, even though - while in prison - he has done nothing wrong.
7 At the time of sentencing, the learned sentencing Judge was ignorant of the fact that the applicant would be incarcerated under the lock down conditions. Thus, it was not (and could not have been) submitted that his Honour erred in failing to take into account the manner in which the applicant would be in prison.
8 The applicant relied solely on the fresh evidence he adduced to establish the conditions applicable to his imprisonment. The respondent did not object to the fresh evidence and it was admitted, accordingly.
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- Fresh evidence proving that an offender was experiencing unforeseen and significant difficulties, rendering the sentence imposed on him substantially more arduous, was admitted in R v Eliasen (1991) 53 A Crim R 391, where Crockett J said (at 394):
"[I]t is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the Judge, even where the Judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below …"
R v Eliasen has been applied in R v Williams, unreported; CCA SCt of Vic; Library No BC9503957; 18 September 1995, where the prisoner suffered a recurrence of lung cancer, and R v Rostom [1996] 2 VR 97 where as a consequence of co-operating with the police the applicant was forced to serve his sentence of imprisonment in protective custody rather than in the mainstream prison population.
9 There are several other instances where courts have had regard to factors which render the imprisonment of a particular individual more arduous than the norm. See, for example, R v Todd (1976) Qd R 21, where an offender was blind, Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 where the prisoner was infected with the AIDS virus, and R v Perez-Vargas (1986) 8 NSWLR 559 where the prisoner was an informer. In Juli (1990) 50 A Crim R 31 Malcolm CJ noted (at 37) that:
"Account should be taken of the impact of a sentence of imprisonment on an aboriginal person in the light of his social and culture background."
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- In R v Boon, unreported; CCA of NSW; 17 November 1983, the Court said:
"[W]eight should be given in favour of the respondent in that there is material justifying the conclusion that imprisonment will come particularly hardly upon him. It is not necessary to canvass the circumstances leading to that conclusion. He has thus far been held in custody that has involved some protective overtones during his time in a jail. It is likely that this situation will continue into the future, this, I repeat, rendering his imprisonment more distressing and arduous than if he were to be imprisoned in accordance with the ordinary manner of holding prisoners within the State's penal institutions."
See also R v Vachalec (1981) 1 NSWLR 351 at 353. In this State, McKechnie J in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999, held that the fact that an offender was incarcerated in maximum security when he was on remand was reductive of sentence.
10 In Astill (No 2) (1992) 64 A Crim R 289, Kirby P (in dissent) had regard to whether the fact that a prisoner was to be held in "strict protection" amounted to "special circumstances" under s 5 of the Sentencing Act 1989 (NSW) and remarked (at 293):
"It is by no means unusual for courts, in determining the duration of a custodial sentence, to take into account features of the offence or of the offender which will result in imprisonment bearing down more severely upon the offender than upon the average prisoner. In this context, quite outside the scheme of the Sentencing Act, it has long been a recognised principle of sentencing that prisoners in strict protection undergo privations which make their period in custody more onerous than is the same period for ordinary prisoners."
- His Honour proceeded at 294 to observe that it was clear, and really a matter of common sense that:
"Ordinary sentencing principles would require consideration to be given to the disparity between arduous sentencing conditions and ordinary sentencing conditions. It is like, if you will, the old distinction between imprisonment and penal servitude with hard labour. The latter was originally reserved for aggravated cases. It was always, and self evidently, reserved for cases where extra punishment was required. The quality of
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- punishment and its intensity was greater. So is the quality and intensity of the punishment of a person in strict protection and a prisoner in this State."
- And concluded (also at 294):
"The existence of strict protection in a prisoner's imprisonment may, in a particular case, enliven a sentencing Judge's discretion to readjust the elements of the minimum and additional terms of the total punishment."
12 In my view, it is no answer to the applicant's argument that half of the prisoners in Casuarina Prison are being subjected to the same regime. Three points can be made in regard thereto. Firstly, the fact that half of the prisoners in Casuarina Prison have to endure the same conditions does not transform those conditions into the norm for this State. As I have mentioned, the lock down conditions are very close to those imposed on persons who have committed prison offences, yet the prisoners in the lock down category are subjected to those conditions without having committed prison offences and have to endure them for a far longer period than offenders who are sentenced to solitary confinement under the Prisons Act. This means that the lock down conditions are significantly more severe than those contemplated by Parliament as the ordinary conditions of imprisonment when it passed the Prisons Act.
13 Secondly, our legal system is founded on equal justice before the law, and as Dawson and Gaudron JJ said in Postiglione v The Queen (1997) 189 CLR 295 (at 301), "equal justice requires that like should be treated alike". This is the foundation of the parity principle of sentencing. When half of the prisoners in Casuarina Prison are subjected to the lock down conditions, and half are not, and where the choice as to which prisoners fall into which half is made arbitrarily and fortuitously, justice is not equal. The applicant is receiving punishment of a more severe quality and greater intensity than those to whom the lock down does not apply.
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- This gives rise to a marked and irrational and, indeed, grossly unfair, disparity between the treatment of offenders. I do not suggest that the parity principle in its ordinary form is applicable in this case, as that principle operates only in regard to co-offenders: Krakouer v The Queen [1999] WASCA 147 and cases cited there. What is applicable, however, is the paramount and more general principle of equal justice before the law.
14 Thirdly, the arbitrary nature of the allocation to the lock down regime is inimical to justice. The applicant, in effect, for no reason relating to his conduct, is receiving extra punishment not contemplated by the sentence imposed on him.
15 Nevertheless, there is a fundamental difficulty with the appeal, and that is that the periods involved are very minor in comparison with the overall sentence imposed: so minor that, in my opinion, intervention by this Court is not warranted as it cannot be demonstrated that the sentence that was imposed, even under the present circumstances of incarceration, was wrong.
16 The applicant has been in custody subject to the lock down regime for a relatively short period. Counsel for the applicant accepted that he could not submit that the applicant "will be housed for the entire 8 months of his non-parole period in this regime". The reference to 8 months I understand to mean the balance of the applicant's non-parole period. Counsel went on to say, "I can only rely on what has happened to date". What "has happened to date," for the purposes of this appeal, is that the applicant has been incarcerated under the lock down conditions for some 3 months.
17 In the circumstances, I think that, had the sentencing judge known how the applicant would be imprisoned for the 3 month period in question, he arguably might have reduced the sentence by 1 month. Taking into account deductions for remission of sentence and parole, the difference in the period of imprisonment actually served would be of the order of 10 days. This is not a difference which justifies appellate intervention.
18 Even if the periods of remission of sentence and parole are not taken into account, I do not think that the reduction in sentence that might be warranted by the conditions under which the applicant has been imprisoned is such as to require the appeal to be upheld. Put in another way, the period involved is such that, even taking the circumstances of
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- incarceration into account, I am not satisfied that the existing sentence gives rise to any miscarriage of justice.
19 I would therefore grant leave to appeal but dismiss the appeal.
20 ANDERSON J: This application for leave to appeal against sentence is based on the single ground that, since his incarceration, the applicant has had to endure a much closer degree of confinement than usual.
21 The details are set out in the judgment of Heenan J, which I have had the benefit of reading.
22 As I understood the argument of counsel for the applicant, Mr Levy, it started from the proposition that in selecting the custodial term appropriate to the case, the sentencing Court acts upon the assumption that prison conditions will be "normal". I think that is a doubtful proposition. Of course the courts assume that prison conditions will not be inhuman or cruel, but I am not aware of any principle of sentencing that makes the sentence conditional on the prison regime being of a particular quality or which requires the sentencing court to appraise or evaluate the actual conditions in the various prisons to which the prisoner is likely to be sent, before handing down sentence. Therefore, I think it is impossible to take the next step called for by the argument. That is, that if it should turn out that the conditions are harsher than those that were assumed at the time of sentence, the sentence should be shortened on appeal.
23 In my opinion, there is no basis in law for this approach.
24 This is not to say that courts leave out of account the particular way in which imprisonment may affect a particular prisoner. It is one thing, however, to say that Judges must have regard for matters personal to a convicted person in determining the appropriate punishment for him or her. It is quite another thing to say that the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm. There is no suggestion of any such principle in the Sentencing Act and I know of no decided case which would provide a foothold for it. The enormous practical difficulties that would confront the courts in attempting to give effect to any such principle are alluded to by Heenan J. I agree with Heenan J that the application for leave to appeal should be refused.
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25 HEENAN J: The applicant seeks leave to appeal against a sentence of three years imprisonment, with parole eligibility, for unlawful wounding. His Honour Judge Williams imposed the sentence in the District Court at Perth on 11 May 1999, four days after a jury had found the applicant guilty of the offence. The only ground now relied upon is that since being sentenced the applicant has been subject to an executive order confining him to his cell for approximately 21 hours each day.
26 On last Christmas Day there was a riot at Casuarina Prison. Since then half of the inmates have been subject to a "restricted management regime" commonly known as "lock down". The prison authorities were not represented on the present application and there is no direct evidence before the Court as to the reason for the imposition of the regime. Newspaper reports which have been brought to our attention tend to show that it has been imposed in order to effect structural changes which will make the Prison more secure and that it has not been imposed to punish any particular prisoner or group of prisoners.
27 In his affidavit of 5 August 1999, which was read at the hearing, the applicant informed the Court that for the 12 weeks which had passed since his conviction on 7 May he had been subject to the regime. His evidence is that his situation is not due to his commission of any prison offence or breach of discipline. Because of a shortage of beds within the prison system, he has been placed with 25 other prisoners in one of the units which is subject to particularly severe restrictions. The regime varies from day to day, but he described his typical day as follows:
"8am - I am released from my cell to obtain my breakfast. I collect my breakfast and return to my cell where I consume my breakfast.
8.30am - I am unlocked from my cell only to obtain medication (I am currently being treated for depression) and return to my cell.
9.15am to 11.30am - I am allowed out of my cell for recreation purposes. During this 2¼ hour period, I am allowed no further than the corridor within my Unit. All other prisoners in my Unit are let out of their cells at the same time. During this period I am allowed to make phone calls. I am allowed 10
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- minutes access on the phone. All other prisoners are allowed the same privilege.
11.30am - I am returned to my cell.
12.00 noon - I am allowed out to obtain my lunch and return immediately to my cell to consume my lunch.
From 12.00 noon to 5.00pm I am locked down in my cell.
5.00pm - I am allowed out to collect my tea and return to my cell to consume it.
5.30pm to 8.00 am - I am confined to my cell."
- The applicant deposes that once a month he is allowed to select three books from a trolley within the unit but otherwise he is denied access to a library. Fresh air and sunlight are denied to him and he has no access to recreation or physical activity apart from walking up and down a 20 to 30 metre corridor. He is allowed out of his cell for two contact visits per week, each of one hour, and to instruct his solicitor. About seven weeks ago he applied for permission to attend education classes. Since then he has attended two such classes, for an hour on each occasion, which have been held during the 2¼ hours that he has been allowed out of his cell.
28 On behalf of the applicant counsel asserted that his fortuitous involvement in the regime has made imprisonment more onerous for him than the sentencing Judge contemplated. He submitted that had his Honour been aware of it at the time of sentencing, it would have been a significant factor in mitigation of penalty and, therefore, that this Court now should reduce the sentence.
29 When a court decides to sentence an offender to imprisonment it goes on to fix the length of the term. In doing so usually, as in this case, it will have no information before it as to the prison to which the offender will be sent or as to what regime will apply to him. They are matters for the prison authorities into whose custody he is entrusted. But sometimes the court will be given information showing that imprisonment by its very nature will impose hardship upon a particular individual which is much greater than upon the average person - for example, in the case of a tribal Aborigine, a blind person or a woman with a newborn baby. In other cases - for example, that of an informer or a person with the AIDS virus - the information will demonstrate a necessity for the prisoner to be kept in protective custody or in some other form of comparative isolation. In any
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- of those cases the sentencing court might impose a term shorter than usual. The same approach might be adopted if, for example, the sentencing court were informed that a large minimum or medium security prison were destroyed by earthquake or flood, so that all prisoners, or even a particular group of prisoners, would be subject to unduly onerous conditions for a substantial period. Thus, had Williams J been aware that the applicant would be subject to the particular regime in question throughout his time in prison, his Honour might well have imposed a sentence of less than three years imprisonment. Of course, one cannot say now precisely how much less it would have been.
30 Generally an appellate court will not intervene upon the basis of events which have occurred since the imposition of sentence. As Crockett J observed in Eliasen v The Queen (1991) 53 A Crim R 391 at 394,
"Applications for leave to appeal are dealt with on the basis that, unless the sentencing Judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by reference to the matters available to be considered by the Judge at the time that he determines upon the sentence."
- However, in Eliasen's case and in the two earlier cases of R v Smith (1987) 44 SASR 587 and Bailey v Director of Public Prosecutions (1988) 35 A Crim R 458 the appellate court did receive evidence as to events occurring after sentence on the basis that the further evidence tended to show the true significance of facts which were in existence at the time of sentence. In each of those three cases the court considered evidence of the offender's medical condition showing that imprisonment was a greater burden upon him than upon the average prisoner by reason of his state of health. In Smith and Eliasen the court did reduce the effective term of imprisonment. In Anderson v The Queen (1997) 92 A Crim R 348 the court reduced the sentence after admitting fresh evidence as to relapse of the leukaemia from which the offender's youngest child was suffering. The court granted the appeal because of the exceptional measure of hardship to which the offender and his family otherwise would have been subject and also because the fresh evidence shed new light on matters which had already been considered by the sentencing judge in mitigation of penalty. Similar considerations were taken into account by the appellate court in R vRostom [1996] 2 VR 97 when it reduced the sentence of an informer who was placed in protective custody. There are significant differences, however, between those cases and the present one.
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31 In the present case, although the applicant has been subject to the regime for twelve weeks prior to the hearing of the appeal, there is no evidence before the Court as to whether, or for how long, he will continue to be subject to it. It is likely that within the near future he will be moved to another unit - or even to another institution - when more suitable accommodation becomes available and it is very likely that he will be released at the end of the statutory non-parole period. It would be wrong, therefore, to assume that he will be subject to the same regime for the remainder of his three year term and to reduce his sentence substantially on that basis. On the other hand, if the Court were to reduce his sentence by one month or six weeks - for what it might regard as the undue hardship which he has endured already - would it be faced with a similar application twelve weeks further on if the situation had not changed? In either event, would not any such reduction be fairly perceived as tinkering with the sentence? These are merely some examples of the practical difficulties that such an approach would bring.
32 The deterrent effect of imprisonment must finally lie in the loss of liberty and the consequent loss of other rights which is involved. Idleness and confinement in a cell for too many hours each day are demoralising factors which tend to cause resentment without reinforcing the deterrent effect. Of course, the prison authorities are well aware of that and, I assume, are doing their best to alleviate the problem. In my opinion it is not appropriate for the Court to intervene by way of review of the sentence.
33 I would refuse the application for leave to appeal.
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