Coleman v Police
[2010] SASC 129
•7 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COLEMAN v POLICE
[2010] SASC 129
Judgment of The Honourable Justice Gray
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
Appeal against sentence - defendant and appellant convicted of driving whilst disqualified and associated driving offences - sentence of one month imprisonment imposed suspended on entry by the defendant into a good behaviour bond of 18 months - bond breached by defendant driving whilst disqualified and driving with excess alcohol - in respect of breach of bond, Magistrate revoked suspended sentence of one month - in respect of driving whilst disqualified, Magistrate imposed a term of imprisonment of six weeks to be served cumulatively upon the one month term - whether sentence imposed by Magistrate manifestly excessive - whether Magistrate erred in not refraining from revoking suspended sentence - whether Magistrate erred in not suspending six week term imposed - consideration of psychiatric report provided to Court on the hearing of the appeal.
Held: appeal allowed - having regard to further psychiatric evidence with respect to defendant's mental state, imprisonment of the defendant would be counterproductive to his rehabilitation - appropriate in the circumstances to suspend term of imprisonment.
Road Traffic Act 1961 (SA) s 47B(1)(a); Motor Vehicles Act 1959 (SA) s 91; Criminal Law (Sentencing) Act 1988 (SA) s 38, s 57(1) and s 58; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Police v Cadd (1997) 69 SASR 150; Mill v R (1988) 166 CLR 59; R v Knight (1981) 26 SASR 573; R v Kain (1985) 38 SASR 309; Police v Castelluzzo (1997) 193 LSJS 13; Bates v Police (1997) 70 SASR 66; Fox v Percy (2003) 214 CLR 118; R v Smith (1987) 44 SASR 587 at 588; R v Brain (1999) 74 SASR 92, considered.
COLEMAN v POLICE
[2010] SASC 129Magistrates Appeal
GRAY J.
This is an appeal against sentence.
This appeal provides a further example of the difficulties that arise when the mentally ill are involved in the criminal law. The defendant has a mental illness. He has received and continues to receive medical and psychiatric treatment. His offending would appear to be related to his illness. His illness does not give rise to a mental incompetence defence though it does have a direct relevance to the assessment of his overall criminality. The evidence before this Court demonstrates that an immediate custodial sentence is not in the interests of the community, nor those of the defendant. His offending does not involve any act of violence. His offending relates to breaches of the Road Traffic Act 1961 (SA), the Motor Vehicles Act 1959 (SA) and then non-compliance with a bond.
Background
On 19 April 2007, Steven John Coleman, the defendant and appellant, was convicted of driving whilst disqualified and associated driving offences. A Magistrate on that occasion imposed a sentence of imprisonment of one month. That was suspended upon the defendant entering into a good behaviour bond of 18 months in the amount of $400.00.
On 14 June 2008, the defendant was arrested and charged on complaint with the following offences:
On the 14th day of June 2008 at SEAFORD in the said State, [the defendant] drove a motor vehicle namely a Mitsubishi sedan South Australian registered … on a road namely Commercial Road while there was present in his blood the prescribed concentration of alcohol as defined in S47A of the Road Traffic Act, 1961.
Section 47B(1)(a) of the Road Traffic Act, 1961.
This is a summary offence.
It [was] further alleged that the concentration of alcohol was 0.194 grams in a hundred millilitres of blood.
…
On the 14th day of June 2008 at SEAFORD in the said State, [the defendant] drove a motor vehicle namely a Mitsubishi sedan South Australian registered … on a road namely Commercial Road while he was disqualified from holding or obtaining a licence
Section 91 of the Motor Vehicles Act, 1959.
This is a summary offence.
The police applied for the enforcement of the 19 April 2007 bond, pursuant to section 57(1) of the Criminal Law (Sentencing) Act 1988 (SA). The particulars were as follows:
on the 19th day of April 2007 [the defendant] entered into a bond to which court file number MCCHB-CRIM-07-1077 refers …
The applicant alleges the [defendant] has failed to comply with a condition of that bond in that he has not been of good behaviour in the manner which is attached hereto.
A copy of the complaint, particularising the drink driving and driving disqualified offence of 14 June 2008 was annexed to the application.
On 16 September 2009, the defendant appeared before the Magistrates Court in respect of the drink driving offence of 14 June 2008, as well as a further drink driving offence and breach of probationary licence conditions, which occurred the month before, on 10 May 2008. Following the entry of guilty pleas, the presiding Magistrate sentenced the defendant in respect of the drink driving and other driving offences. However, having regard to a psychologist’s report recommending that the defendant be “assertively psychiatrically treated”, the Magistrate refrained from sentencing the defendant in respect of the drive whilst disqualified offence of 14 June 2008, to allow for the defendant to engage in psychiatric treatment and to allow for the preparation of a further report dealing with the defendant’s psychiatric state. The Magistrate made it clear on that occasion that he would delay sentencing until the defendant had received treatment for his psychiatric condition.
The matter next came before the Court constituted by the same Magistrate on 6 January 2010. On this occasion the Magistrate sentenced the defendant in respect of the breach of the good behaviour bond and the outstanding drive whilst disqualified charge. In respect of the breach of bond, the Magistrate ordered that the suspension of the sentence be revoked and that the defendant serve the one month term of imprisonment previously imposed. In respect of the drive whilst disqualified allegation of 14 June 2008, a term of imprisonment of six weeks, to be served cumulatively upon the one month term imposed in respect of the breach of bond was imposed.
On 12 January 2010, having spent six days at Yatala, the defendant was granted bail pending appeal.
It is apparent that as at 6 January 2010, a further report as to the defendant’s psychiatric state and ongoing treatment had not been prepared. The Magistrate had before him the report of Richard Balfour dated 26 June 2009, detailing the earlier psychological assessment of the defendant, and a pre-sentence report of the Department of Correctional Services dated 28 October 2009. The pre-sentence report offered little insight into the continuing treatment of the defendant. The report made mention of the psychologist’s prior assessment, but no mention of his ongoing treatment. The pre-sentence report indicated that the defendant had not yet attended any community service duties, and was “unreliable in reporting to his community corrections officer”. The pre-sentence report did however make mention of a medical certificate produced by the defendant, in an attempt to explain his failure to attend. No contemporaneous report was available.
In his sentencing remarks, the Magistrate indicated that he had not received any further report from Corrections in respect of the defendant’s psychological state; however, the Magistrate was aware of the defendant’s continuing treatment at James Nash House at the time of sentencing. In that respect, the Magistrate observed:
[On 16 September]… I made a very long and detailed note on the file that you were to engage in treatment and that I would delay sentencing until you had that treatment.
I made the following notes that part of the bail is that Correctional Services will arrange for such psychiatric treatment and if that is unable to be taken they are to contact the registrar of this court as well as [defendant’s counsel], message to be passed on to myself and matter to be called on as soon as typed out that such treatment is to be taken. You are currently receiving treatment at James Nash House in relation to that. There is no report before me in relation to that matter and it is unclear at what stage that treatment is.
In relation to the drink driving offences, they have all been dealt with and the only outstanding matter is the drive disqualified matter of 14 June 2008. It is indeed, as I have just illustrated, a very unhappy and sad state of affairs that 12 months has elapsed and we are still at the stage there is no report available about the recent treatment. The report that I have before me is in relation to a report prepared by Mr Balfour on 26 June 2009.
It is convenient to set out the relevant parts from Mr Balfour’s report. The report set out the defendant’s history and an assessment of the defendant. In a preliminary observation, Mr Balfour noted that during the interview, the defendant exhibited clear evidence of delusional thinking:
… He believed that NASA was spying on him by using a combination of satellites, radio, telephone, and television surveillance. He clearly was quiet [sic] paranoid and concerned regarding his personal safety. He exhibited evidence of mild thought disorder. He disclosed he was experiencing low-grade auditory phenomena. He said that he heard voices which were “mainly gibberish”. He was very concerned about NASA’s surveillance of him. He believed that he was being treated like an animal in an enclosure. He was not feeling depressed or suicidal. He was very guarded about disclosing his paranoid psychotic phenomena. …
Although Mr Balfour came to the conclusion that the defendant had a latent psychotic illness which was evolving, he was not able to determine the precise causality of that illness. However, Mr Balfour made a provisional diagnosis of prodromal schizophrenia. According to Mr Balfour, the defendant’s illness was not such as to make available a defence of mental incompetence. However it was his view that the defendant’s psychotic illness could be considered to be a mitigating factor in relation to his offending behaviour. Mr Balfour observed:
…His psychosis has impaired his psychosocial functioning. He has become socially withdrawn, unemployed, alienated his mother, and abused alcohol and cannabis to self-medicate. His psychosis has made him disorganised and resulted in him becoming socially dislocated. Furthermore, he has very poor insight at present. He does not recognise he has a mental illness. He is reasonabl[y] skilled in masking his psychotic symptoms.
…
…I believe because he suffers from an undiagnosed and untreated latent psychotic illness, exacerbated by binge alcoholism, he was too psychotically disorganised to be able to comply [with the bond]. I believe that once [the defendant’s] psychosis has been assertively psychiatrically treated he would be better able to comply with a suspended sentence and good behaviour bond.
[Emphasis added]
The Magistrate referred to the opinions of Mr Balfour, including his assessment of the defendant as suffering from an evolving latent psychotic illness, but concluded that despite this psychotic illness, he did not find good reason not to revoke the defendant’s suspension.
The Appeal
The Submissions
The defendant appeals against the revocation of the suspended. It is said that the Magistrate erred in not exercising his discretion to refrain from revoking the suspended sentence of imprisonment on the application for breach of bond; erred in not suspending the sentence of imprisonment with respect to the offence of driving whilst disqualified; and, that the sentence of imprisonment was manifestly excessive.
In the written submissions provided to this Court, the Police contended that the Magistrate adopted the appropriate course in refusing to excuse the breach of bond, and was right in ordering that the defendant serve the one month term of imprisonment which had previously been imposed in respect of the earlier offences of a similar nature. It was said that the Magistrate correctly imposed a term of imprisonment in respect of the drive whilst disqualified charge, having proper regard to the defendant’s history of offending, and in particular the prior conviction for driving whilst disqualified.[1] It was further contended that there was nothing on the evidence before the Magistrate that constituted good reason to suspend the term of imprisonment on the drive whilst disqualified charge, nor excuse the breach of bond. It was said that nothing in the Magistrate’s remarks suggested any error in his approach to sentencing, and as a consequence there was no basis to interfere with the sentences imposed.[2] It was submitted that the Magistrate appropriately had regard to principles of totality, reflected in the cumulative sentences imposed in respect of the offence and breach of bond.[3]
[1] See the remarks in Police v Cadd (1997) 69 SASR 150 at 180 (Mullighan J).
[2] House v The King (1936) 55 CLR 499.
[3] Mill v R (1988) 166 CLR 59; R v Knight (1981) 26 SASR 573; R v Kain (1985) 38 SASR 309 at 311-312 (King CJ).
Counsel for the Police emphasised that there was no suggestion that the offending was connected to the defendant’s mental condition. He offered no compelling explanation for driving. His blood alcohol reading was high. It was further contended that there was nothing in the circumstances of the offending, as advanced by the defendant that suggested that the offending was anything but contumacious. It was said that the defendant’s apprehension for drink driving and driving whilst disqualified while subject to a good behaviour bond imposed for the offence of driving whilst disqualified, demonstrated a deliberate defiance by the defendant.[4] Finally, it was pointed out that there was nothing in the psychological assessment report of 26 June 2009, that provided any insight into the defendant’s decision to drive whilst disqualified, or the reasons for breaching the bond.
[4] Police v Cadd (1997) 69 SASR 150 at 179 (Mullighan J); Police v Castelluzzo (1997) 193 LSJS 13; Bates v Police (1997) 70 SASR 66 at 73 (Perry J).
Further evidence
On the hearing of the appeal, counsel for the defendant asserted that the defendant had been receiving psychiatric treatment since the time of the Magistrate’s order on 16 September 2009. Counsel applied to adjourn the matter in order to obtain a report from the treating psychiatrist. That application was not opposed. On 26 March 2010, a report from the treating psychiatrist, Megan Ferris, was provided to the Court and the matter was called on for further hearing.
Dr Ferris has been the treating psychiatrist for the defendant since early October 2009 and has seen him on four occasions since that time as an outpatient at James Nash House. Dr Ferris summarised the treatment of the defendant’s condition as follows:
Since October 2009, [the defendant] has been appropriately and eagerly participating in engagement with Forensic Mental Health Services. This has involved regular outpatient appointments with myself at James Nash House and administration of regular anti-psychotic medication … for treatment of his condition. In addition, he has participated in psycho-education in regards to the diagnosis of Schizophrenia and learnt psychological techniques provided by home visits through the nursing staff from the Forensic Community Team. Resolution of his symptoms has also been possible through his abstinence from illicit substances which have been felt to further increase his risk of relapse.
During the course of the report, Dr Ferris commented on the impact that the six days spent in prison in January had on the defendant:
In January 2010, I note that [the defendant] spent a week in Yatala Labour Prison as ordered by the Court. He found the whole experience extremely distressing and suffered re-emergence of his psychotic symptoms, increased anxiety and deterioration in his mental state. Upon his release from Yatala Labour Prison, he has re-instated his anti-psychotic medication and contact with the Forensic Community Team and has resumed an improvement in his mental state.
Importantly, Dr Ferris made the following observations as to the likely impact of further imprisonment on the defendant’s mental state:
It is my opinion that imprisonment would be highly detrimental to the ongoing improvement in [the defendant’s] mental state. This was evident from his short incarceration in January 2010 where he had a further relapse in his psychotic symptoms and Schizophrenia with increased anxiety and distress. Given his relatively recent diagnosis of Schizophrenia, subsequent contact with mental health services and recent improvement in his symptoms, I would predict that there would be a further deterioration in his mental state if he was incarcerated. Although he would have access to psychiatric assessment and treatment in the prison environment, unfortunately due to the limited resources available in the prison environment, it would be difficult for him to receive the access to mental health services that he requires.
Since his contact with mental health services in October 2009, there has been a positive improvement in his mental state, attitude towards his offending and illicit drug use. His current management plan in the community would be the most appropriate way to assist in his rehabilitation and lead him to remain mentally stable. He is going to remain at a low risk of relapse of his Chronic Paranoid Schizophrenia, however if he continues to have close follow up with a community mental health team, together with Drug and Alcohol Services, I think his risk of recidivism is extremely low.
Counsel for the defendant contended that had Dr Ferris’ report been available to the Magistrate when sentencing, the Magistrate may have refrained from revoking the suspended sentence and instead imposed a further suspended sentence. It was said that in light of Dr Ferris’ conclusions, the imposition of a custodial term would be counterproductive to the defendant’s recovery and his prospects of being able to function as a productive member of the community.
Counsel for the Police contended that the defendant’s offending on this occasion could be described as contumacious and consequently, the Magistrate’s approach did not disclose any error. However counsel for the Police accepted that Dr Ferris’ report did suggest that a period of incarceration would be counterproductive to the defendant’s rehabilitation, and that while there did not appear to be any error on the part of the Magistrate when sentencing, it was open to this Court to re-sentence in light of the fresh material.
The Role of the Appeal Court
Before embarking on a consideration of the matter, it is appropriate to make a number of observations in relation to an appeal to this Court.
Rule 286 of the Supreme Court Civil Rules 2006 (SA) provides that the appeal to this Court is by way of rehearing:[5]
(1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2) Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3) Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c) remit the case or part of the case for rehearing or reconsideration;
(d) make orders for the costs of the appeal.
[5] Previously to January 1 2010 these provisions were found in rule 292 of the Supreme Court Civil Rules 2006 (SA).
An appeal by way of rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. Rather, the court proceeds on the basis of the record and any fresh evidence that it chooses to admit.[6] The evidence contained in Dr Ferris’ report is admissible as it brings to this Court’s attention the relevant details as to the defendant’s treatment and response to treatment subsequent to October 2009, and further explains the implications of the defendant’s mental condition and treatment. As King CJ observed in Smith:[7]
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light.
[6] Fox v Percy (2003) 214 CLR 118 at [22].
[7] R v Smith (1987) 44 SASR 587 at 588. These observations were confirmed by Doyle CJ in R v Brain (1999) 74 SASR 92 at [86].
The Merits
The defendant’s offending the subject of this appeal was serious. As earlier outlined the defendant has a poor history of driving offences and the current offences are to be understood against this background. Of particular relevance is the prior conviction for driving whilst disqualified.[8] The offences must be assessed having regard to the fact that they breached the terms of the bond imposed on 19 April 2007.
[8] See the remarks of Mullighan J in Police v Cadd (1997) 69 SASR 150 at 180 in relation to the relevance of subsequent offences.
The nature of the defendant’s conduct in the present proceedings was such that a term of imprisonment was warranted. In this respect, the Magistrate did not err in revoking the suspended sentence and in imposing the term of six weeks imprisonment for the offence of driving whilst disqualified committed on 14 June 2008.
It is clear that when sentencing, the Magistrate was concerned with the psychological condition of the defendant and the need for some delay in sentencing to allow the defendant to receive treatment. However, the Magistrate was under an obligation to finalise the matter. This is a summary jurisdiction. There was some confusion as to who was responsible for arranging the preparation of a further report. The Magistrate was not assisted in this regard by the provision to him of an updated report. The failure to have placed before the Magistrate a further relevant report was unsatisfactory and it is understandable that in light of the material before him the Magistrate sentenced as he did.
As noted above, on appeal the Court received further evidence with the consent of the parties; namely, the report of Dr Ferris. The appropriate sentence for the defendant is to be considered in light of the evidence contained therein.
The psychiatric evidence provides a strong case for a further opportunity to be provided to the defendant. The evidence provided in the report of Dr Ferris outlines that an immediate custodial term is likely to be counterproductive for the defendant. The report of Dr Ferris indicates that if the defendant is incarcerated, there is an increased risk of the defendant relapsing into a psychotic or schizophrenic state. At present, the defendant is responding positively to treatment and with continued treatment is unlikely to re-offend. According to Dr Ferris, a custodial term will interrupt and set back the rehabilitation of the defendant. It is unclear whether the defendant’s history of offending, including the conduct which breached his bond, is attributable to his psychotic state. However, Dr Ferris’ report clearly states that if the defendant continues his treatment, his risk of recidivism is extremely low.
It is to be observed that when the defendant spent six days in Yatala during January 2010, his anti-psychotic medication was not available. Although it is unclear why his medication was not provided, it is relevant to record that any setback to the defendant’s rehabilitation engendered by a custodial term would be compounded if he did not have access to his medication.
Having regard to these matters, I consider that it is appropriate to suspend the term of imprisonment which the defendant is liable to serve, on entry by the defendant into a bond. Although the defendant was previously subject to a suspended sentence bond which he breached, the circumstances and his prospects of rehabilitation have materially altered as a consequence of his ongoing treatment. Accordingly, it is appropriate to provide a further opportunity for the defendant to receive the medical treatment which he requires, and which the evidence indicates is effective. In light of both the defendant’s potential for rehabilitation and his potential if untreated to relapse into a psychotic or schizophrenic state, there is a real interest for the community in the defendant’s rehabilitation. The circumstances as outlined warrant a merciful approach.
The orders that a Court may make on breach of bond are set out in section 58 of the Sentencing Act which relevantly provides:
…
(d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
…
(3) Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a) may refrain from revoking the suspension; and
(b) may—
(i) —
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
…
(5) Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
[Emphasis added]
In the circumstances of the present proceeding, the bond to which the defendant was subject, entered into on 29 April 2007, has expired. It is appropriate that the defendant enter into a further supervised bond of 12 months, suspending the term of imprisonment of one month which the defendant is liable to serve. It should be a condition of the bond that the defendant undergo psychiatric treatment in accordance with the directions of his supervising Community Corrections Officer.
I consider further that in accordance with the above discussion, there is good reason to suspend the six week term of imprisonment fixed by the Magistrate in relation to the charge of driving whilst disqualified. In that respect, section 38 of the Sentencing Act relevantly provides:
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
….
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
In accordance with the power contained in section 38 of the Sentencing Act, I consider it appropriate that the defendant enter into a three year good behaviour bond suspending the six week term of imprisonment imposed in respect of the offence of driving whilst disqualified. That bond is to be supervised for a period of two years. It should be a condition of the bond that the defendant undergo psychiatric treatment in accordance with the directions of his supervising Community Corrections Officer.
Conclusion
The appeal is allowed. The order of the Magistrate revoking the suspended sentence is set aside on the defendant entering into a 12 month supervised good behaviour bond. It is to be a term of the bond that the defendant undergo psychiatric treatment in accordance with the directions of his supervising Community Corrections Officer. The term of imprisonment of six weeks with respect to the offence of driving whilst disqualified is to be suspended on the defendant’s entry into a supervised good behaviour bond for a period of three years. That bond is to be supervised for a period of two years. Again it is to be a term of the bond that the defendant undergo psychiatric treatment in accordance with his supervising Community Corrections Officer.
0
9
1