Director of Corrective Services v John Reginald Hammond
[2001] ACTSC 105
•14 November 2001
DIRECTOR OF CORRECTIVE SERVICES v JOHN REGINALD HAMMOND [2001] ACTSC 105 (14 November 2001)
CATCHWORDS
CRIMINAL LAW – periodic detention – circumstances in which detainee must be taken to have failed to report for detention – whether a person “fails to submit” to a drug test if incapable of providing a urine sample due to a medical condition – whether leave of absence should have been granted for one or more periods – mandatory requirement for cancellation – whether respondent should be released either immediately or upon serving part of prison sentence imposed upon cancellation of order.
Periodic Detention Act 1995, ss 23, 22, 30, 24, 31, 32, 34
Periodic Detention Regulations 1995
Crimes Act 1900, ss 556B, 556C, 556D, 556E
Commissioner of Corrective Services v Karout & Anor (1995) 81 A Crim R 337
David Westbrook v R (unreported, ACT SC, 18 July 2000, SCA 23 of 2000)
No. SCC 28 of 1998
Judge: Crispin J
Supreme Court of the ACT
Date: 14 November 2001
IN THE SUPREME COURT OF THE )
) No. SCC 28 of 1998
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DIRECTOR OF CORRECTIVE SERVICES
Applicant
AND:JOHN REGINALD HAMMOND
Respondent
ORDER
Judge: Crispin J
Date: 14 November 2001
Place: Canberra
THE COURT ORDERS THAT:
An updated pre-sentence report be prepared concerning the physical condition and health of the respondent.
This is an application for cancellation of a periodic detention order.
On 28 May 2001 I sentenced the respondent to a period of twelve months imprisonment and ordered it be served by fifty-two periods of detention. The order was subject to conditions requiring the respondent to:
(i)report to the manager at the periodic detention centre between 6.00 pm and 7.00 pm on Friday 1 June 2001 and thereafter at the same place and time until completion of the said order;
(ii)notify a custodial officer or manager of the periodic detention centre within 52 hours of being charged with any offence while the order is in force;
(iii)not commit any offence punishable by imprisonment while the order is in force;
(iv)notify a custodial officer or manager of the periodic detention centre within 48 hours of any change of address while the order is in force;
(v)while the order is in force obey all lawful instructions and directions of the custodial officer or manager.
It is alleged that the respondent should be taken to have failed to report to the periodic detention centre in compliance with this order on four occasions.
On 8 June 2001 the respondent reported to the centre but subsequently “failed” a drug test. The test apparently revealed the presence of a number of drugs including opiates and amphetamine.
The respondent has a number of serious physical problems. Indeed, I initially ordered that the sentence be served by way of periodic detention rather than full time imprisonment substantially because I had concluded that his physical state was so vulnerable that he may have been unable to cope with the rigours of prison life and would have been at constant risk of serious injury.
The respondent suffers from an intervertebral disc lesion which produces severe and chronic low back pain. A number of the drugs identified in the test administered on 8 June 2001 had been prescribed for this condition, and at the time of the hearing he was awaiting surgery. He had been taking Panadeine Forte to alleviate the pain but this seems to have proven inadequate and some time prior to this incident he took some Anamorph tablets, which contain morphine. These tablets had actually been prescribed for the respondent’s partner who also suffers from a disc lesion as well as severe and chronic pain. The fact that he took these tablets in order to alleviate the pain was not disputed and morphine was prescribed for him shortly afterwards. However, it was not suggested that amphetamine had been prescribed for him either prior to the test or subsequently.
On 29 June 2001 the respondent reported to the centre but allegedly failed to submit to a drug test.
The respondent gave evidence that he had been unable to provide a urine sample, despite drinking copious quantities of water and being given two hours to do so. In a report dated 10 September 2001, his treating doctor, Dr Black, stated that some of the narcotic drugs which had been prescribed for the respondent have the effect of increasing the tone in the various sphincter muscles in the body and may have had an action on the bladder sphincter, making it more difficult for him to produce a urine sample on demand. The respondent’s evidence that he had attempted to comply with the demand but had been unable to produce a urine sample within the two hours permitted was challenged to some extent in cross-examination, but I see no reason to doubt it. He explained his difficulty to the custodial officer at the time and he seems to have accepted the explanation. The relevant report states that the respondent was “unable to produce a specimen after the required time”.
On 6 July 2001 the respondent reported to the detention centre and a drug test again revealed the presence of a range of drugs including opiates and amphetamine.
On 20 July 2001 the respondent again reported to the periodic detention centre but refused to submit to a drug test, apparently because he anticipated further difficulties in producing a urine sample, and because he knew he had taken morphine and was resigned to the fact that the test would reveal a positive result.
In these circumstances, Mr Hempenstall, who appeared for the applicant, submitted that I was required to cancel the periodic detention order. This submission was based upon an analysis of the relevant provisions of Periodic Detention Act 1995.
Section 23 of the Act provides, inter alia, that:
(1) The manager of a detention centre may require a detainee who is reporting for, or otherwise serving, a detention period to submit to such test as may be prescribed to determine –
(a)whether alcohol is present in the detainee’s blood and, if so, the concentration of alcohol in the detainee’s blood; or
(b)whether a drug is present in the detainee’s body.
The term “drug” is defined by s 12 of the Act to mean:
(a)A substance specified in Schedule 1 to the Road Transport (Alcohol and Drugs) Act 1977; or
(b)A substance that is specified in Schedule 1 or 2 to the Drugs of Dependence Regulations.
It was not disputed that morphine and amphetamine are drugs which fall within this description.
Section 22 of the Act provides as follows:
(1) The manager of a detention centre may refuse to admit a detainee to the centre where he or she believes on reasonable grounds that the detainee is unfit to serve a period of detention because the detainee’s behaviour is unruly or is otherwise a threat to the good order or security of the centre.
(2) Where the results of a test undertaken by a detainee in pursuance of a requirement by the manager of a detention centre under subsection 23(1) indicate to the manager that-
(a)the concentration of alcohol in the blood of the detainee is equal to or more than 0.02g of alcohol per 100mL of blood or more; or
(b)a drug is present in the body of the detainee;
the manager of the centre shall –
(c)where the test results are received by the manager prior to admission of the detainee for a detention period – refuse to admit the detainee to the centre and inform the detainee that he or she is to be taken to have failed to report for that detention period; and
(d)where the test results are received by the manager while a detainee is serving a detention period – direct the detainee to leave the centre and inform the detainee that he or she is to be taken to have failed to report for that detention period; and
(e)where the test results are received by the manager after the completion of a detention period by the detainee – inform the detainee that he or she is to be taken to have failed to report for that detention period.
(3) Subsection (2) does not apply in relation to a detainee where the concentration of alcohol in the detainee’s blood or the presence of the drug in the detainee’s body is due to the detainee taking medication in accordance with the advice of–
(a)a medical practitioner, being advice provided for medical reasons; or
(b)a dentist, being advice provided for dental reasons; or
(c)a nurse, being advice provided for nursing reasons.
(4)Where –
(a)under subsection (1) or paragraph (2) (c), a detainee has been refused admission to a detention centre; or
(b)under paragraph (2) (d), a detainee has been directed to leave a detention centre; or
(c)test results of the kind referred to in paragraph (2) (a) or (b) have been received by a manager after completion of a period of detention by a detainee;
the detainee shall be taken to have failed to report for periodic detention.
(5) Where a detainee refuses or fails to submit to a test that he or she is required to undertake under subsection 23(1) –
(a)prior to admission to a detention centre for a detention period; or
(b)while the detainee is serving a detention period;
the manager of the centre shall –
(c)in the circumstances referred to in paragraph (a), refuse to admit the detainee to the centre and inform the detainee that he or she is to be taken to have failed to report for that detention period; and
(d)in the circumstances referred to in paragraph (b), direct the detainee to leave the centre and inform the detainee that he or she is to be taken to have failed to report for that detention period.
(6) A detainee who refuses or fails to submit to a test that he or she is required to undertake under subsection 23(1) shall be taken to have failed to report for the relevant detention period.
The effect of these provisions is clear. The manager of a detention centre may require a detainee to submit to a prescribed test and the detainee will be taken to have failed to report for the relevant detention period in the event of a refusal or failure to submit to the test or results revealing a concentration of alcohol in the blood equal to or more than 0.02 grams of alcohol per 100 millilitres of blood or the presence of a drug of the relevant kind. That consequence ensues whether the relevant refusal occurs or where the results are discovered before the detainee is admitted, during the course of the detention period or after its completion.
Mr Hempenstall argued that it did not matter whether the respondent’s failure to produce a urine sample had been wilful. It was sufficient that he had been required to provide one and had failed to do so. On the other hand, Mr Gill, who appeared for the respondent, argued that a person should not be taken to have failed to “submit to a test” merely because he or she had been incapable of carrying out the necessary act. He argued that such a concept required at least a capacity for compliance.
Mr Gill also argued that the respondent had not failed to comply with a requirement authorised by the Act but had merely been unable to provide the urine sample within the two hour period stipulated. Whilst the Periodic Detention Regulations 1995 prescribe procedures for the taking and testing of urine samples, neither the Act nor the Regulations prescribe any period during which such a sample must be produced. Mr Gill maintained that in those circumstances it had not been open to the staff of the periodic detention centre to impose a time limitation.
In the absence of any provision to the contrary, I think that a detainee must clearly be given reasonable time for compliance. Two hours might normally provide ample time for a person to produce a urine sample but much may depend upon the circumstances, including the detainee’s state of health. In the context of the statutory scheme contained in the Periodic Detention Act, I am unable to accept that a person should be regarded as having failed to submit to a drug test unless he or she had at least been capable of submitting to it. In many cases, of course, one might be extremely sceptical of any claim that a detainee had been unable to produce a urine sample within two hours but, for the reasons previously given, I accept that the respondent had been unable to do so on this occasion. Consequently, I am not satisfied that he should be regarded as having “failed to submit” to the test and hence am not satisfied that he should be taken to have failed to report to the periodic detention centre on 29 June 2001.
However, I am satisfied that the respondent must be taken to have failed to report on the other three occasions.
The respondent clearly failed drug tests on 8 June and 6 July 2001. The morphine had not been taken in accordance with the advice of a medical practitioner, dentist or nurse for medical, dental or nursing reasons. He had merely decided that he needed further pain relief and had taken tablets prescribed for his partner. It is true that his treating doctor subsequently prescribed the same drug for him but that circumstance did not retrospectively bring the situation within the proviso contained in subs 22(3) of the Act. Furthermore, as I have mentioned, it was not suggested that amphetamine had been or was subsequently prescribed.
The respondent must also be taken to have failed to report on 20 July 2001 because of his refusal to submit to the drug test on that day. I accept that he probably anticipated difficulties in providing a urine sample and thought it would be a waste of time attempting to do so because the subsequent analysis would inevitably reveal the presence of morphine. Nonetheless, the Act does not enable me to disregard his refusal to submit to the test due to considerations of that kind or other extenuating circumstances.
The provisions dealing with cancellation of periodic detention orders are collected in Div 3 of Pt 2 of the Act. Section 30 provides as follows:
(1) Subject to this section, where an order for periodic detention is in force in respect of a detainee, the court that made the order may, on application by the detainee or the director, cancel the order if it appears to the court that there are good grounds for doing so.
(2) Without limiting the generality of subsection (1) the court may, on the application of the director, cancel the order if satisfied that the person is not serving his or her sentence in accordance with the order.
(3) Without limiting the generality of subsection (1), the court shall, on the application of the director, cancel the order if satisfied that –
(a)the person has, for 3 or more detention periods, whether consecutive or not, failed to report, as required by or under this Act; and
(b)the failures to report occurred otherwise than on leave of absence under section 24.
(4) Before hearing an application to cancel an order under this section the court shall –
(a)in the case of an application by the director –
(i)cause the detainee to be served with a summons for his or her appearance together with a copy of the application; or
(ii)where the court considers it necessary to secure the appearance of the detainee other than by way of summons – instead of issuing a summons, issue a warrant for the apprehension of the detainee; and
(b)in the case of an application by a detainee – cause the director to be served with a copy of the application.
(5) Notwithstanding the issue of a summons under subparagraph (4) (a)(i), the court may issue a warrant at any time before or after the time mentioned in the summons for the appearance of the detainee.
(6) The court may refuse to cancel the order under subsection (3) if satisfied that –
(a)leave of absence should have been granted under section 24 with respect to 1 or more detention periods; and
(b)the total number of detention periods for which the person has failed to report as referred to in subsection (3) would, had the leave of absence been granted with respect to those detention periods, be less than 3;
in which case it shall make a determination to that effect.
(7) Where the court makes a determination under subsection (6), leave of absence under section 24 shall be taken to have been granted in accordance with the terms of the determination.
(8) In proceedings on an application under this section, a certificate purporting to be signed by the director and certifying any of the following:
(a)that a person is a detainee;
(b)particulars of a periodic detention order;
(c)particulars of any failure by a detainee to serve his or her sentence in accordance with the order;
is evidence of the matters certified.
(9) In proceedings on an application under this section, where a detainee is taken to have failed to report for periodic detention by virtue of the operation of subsection 22 (4) or (6), evidence of any matters relevant to –
(a)a test that a detainee was required to undertake but which the detainee refused or failed to undertake, as required; or
(b)a test undertaken by a detainee; or
(c)the analysis of the results of a test undertaken by a detainee;
may be provided by way of a certificate as provided for in accordance with the regulations.
(10) A certificate referred to in subsections (8) and (9) shall not be admitted in evidence, unless the court is satisfied that reasonable efforts have been made to serve a copy of the relevant certificate on the detainee concerned.
(11) The court shall not cancel an order under this section if satisfied that the grounds for cancellation of the order would constitute a sufficient reason for an order for variation of the sentence to be made under section 26, in which case the court shall vary the sentence by cancelling the remaining detention periods that were to be served by the detainee.
It may be noted that the provisions of subs (3) are mandatory. Subject to any other provisions in the Act, the Court must cancel the periodic detention order if the person has failed to report for three or more detention periods otherwise than on leave of absence granted under s 24.
The latter section authorises the Director to grant leave of absence from a detention period “for health reasons or on compassionate grounds or for such other reasons as the director considers sufficient”. Leave of absence may be granted “in the prescribed manner either before or after the detention period to which it relates”. Subsection (3) provides that “[t]he Magistrates Court may, on the application of a detainee whose request for . . . [leave of absence] has been refused, direct that the leave of absence be granted in respect of all or any of the detention periods [in question]”. An application for such a direction must be made within twenty-one days after the date on which the request to which it relates was refused. In the present case it is common ground that no application for leave was made.
The Act provides few avenues for a detainee to elude the application of the requirement that a periodic detention order be cancelled if he or she has failed to report, or must be taken to have failed to report, on three or more occasions.
The discretion provided by s 30(6) applies only if the court is satisfied that leave of absence “should have been granted under s 24” with respect to one or more of the relevant period or periods. In Commissioner of Corrective Services v Karout & Anor (1995) 81 A Crim R 337 the New South Wales Court of Appeal considered a similar provision under the corresponding New South Wales enactment, and held that a court could only be satisfied that leave of absence should have been granted under a comparable statutory provision if there had been an application for that leave. In David Westbrook v R (unreported, ACT SC, 18 July 2000, SCA 23 of 2000), I felt obliged to follow that decision in accepting that it was impossible to be satisfied that leave of absence should have been granted by someone who had not known that it was sought or required.
I should perhaps mention that, notwithstanding the unequivocal expression of opinion in Karout, I accept that there may be some circumstances in which it would be possible to be satisfied that leave of absence should have been granted even if there had not been an application for it. To take but one example, I have no doubt that if an ambulance had to be called to the detention centre to take a prisoner who had been seriously injured to hospital, a court subsequently hearing an application for cancellation of his or her detention order might readily conclude that the Director should have granted leave of absence for health reasons notwithstanding the absence of an actual application.
However, s 30(6) does not appear to authorise a court to refuse to cancel an order on the grounds that circumstances of which the director had remained unaware might have justified or excused one or more non-attendances.
Whilst this conclusion seems inescapable given the language of the section and the approach taken by the New South Wales Court of Appeal, I must confess that I have embraced it with some measure of reluctance. There may be many situations in which one could readily understand a detainee’s failure to report for a period of detention. He or she may have become ill, been required to care for a sick child or have been physically unable to attend. It is true, of course, that a person confronted by such a situation may seek leave from the Director, but at times of stress not all detainees seem to have the presence of mind to apply. The legislature has presumably taken the view that ample provision for situations of that kind had been made by enabling the Director to grant leave of absence retrospectively. It is perhaps conceivable that a detainee could even seek an adjournment of proceedings for cancellation of the order so that he or she might apply to the Director for leave, though if the application was made too long after the relevant detention period it might be difficult to subsequently establish that leave should have been granted.
In the present case, however, it was not suggested that the respondent would have been unable to complete any of the detention periods in question and there were no grounds for contending that the Director could, or should, have granted him leave.
The provisions contained in s 30(11) apply only in very limited circumstances. The Court must be satisfied that the grounds upon which a cancellation of the order has been sought would also constitute a sufficient reason for varying the sentence under s 26 by cancelling the remaining periods which were to have been served by the detainee. It was not suggested that the provision could be successfully invoked in the present case.
Accordingly, there are no grounds upon which cancellation of the order could be successfully resisted.
Section 31 provides that where an order for periodic detention is cancelled under s 29 or s 30, any remaining periods of detention to which the order applied shall be served as a separate term of imprisonment imposed at the time of cancellation and calculated at the rate of one week for each unserved detention period.
However, a power to direct that the person be released is provided by s 32. That section is in the following terms:
(1) Where, pursuant to paragraph 31 (1) (b), a person is required to serve a term of imprisonment, the court may, by order, direct that the person be released forthwith or after serving a specified part of the term of imprisonment upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court that –
(a)he or she will be of good behaviour for such period as the court specifies in the order; and
(b)he or she will, during the period so specified, comply with such conditions (if any) as the court considers appropriate to specify in the order, which conditions may include –
(i)the condition that the person will, during the period so specified, be subject to the supervision on probation of a person, for the time being appointed in accordance with the order; and
(ii)the condition that the person will obey all reasonable directions of a person so appointed.
(2) A court shall not release a person under subsection (1) on condition that the person perform unpaid community work.
Section 34 provides that such an order is enforceable as far as practicable in the same way as an order under subs 556B(1) of the Crimes Act 1900 and that the provisions of ss 556C, 556D and 556E of that Act apply in relation to such order so far as applicable.
In the present case the inflexibility of the statutory provisions to which I have referred has given rise to a significant dilemma. I am obliged to cancel the periodic detention order and my only options are to require the respondent to serve the full period of the sentence that will be calculated in accordance with the provisions of s 31, or to order his release, either immediately or after he has served a specified part of the sentence.
As previously mentioned, I initially ordered that the sentence be served by way of periodic detention substantially because of the respondent’s precarious physical condition. It would appear that his condition remains precarious and major surgery is now imminent. Despite some perceptions to the contrary, prison is a harsh, stressful and sometimes brutal environment. If I were to send this man to prison I would inevitably be exposing him to daily contact with violent offenders and, whilst I’m sure that the authorities would do all that they could to protect him, he might be at grave risk of serious injury. On the evidence presently available to me it would appear that his physical frailty and disabilities would leave him virtually defenceless, and the possibility that a violent assault might aggravate his spinal problem and leave him with serious and perhaps permanent disabilities could not be excluded. For these reasons I am reluctant to make any immediate order requiring him to serve a full time sentence of imprisonment within a normal prison.
On the other hand, I am also reluctant to relieve him of the obligation to serve the balance of a sentence which is already more lenient than that which might have been imposed but for his physical problems. Had it not been for the statutory constraints to which I have referred I would have required him to complete the sentence by periodic detention, even if there had to be a gap in the period served due to surgery and subsequent hospitalisation. However, that option is not open to me.
I accept that applications of this kind should be resolved quickly lest the intention of the legislation be defeated by delay. Nonetheless, faced with the stark alternatives of sentencing this man to a significant term of imprisonment or ordering his release I think I must be guided by up to date medical evidence as to his capacity to serve a prison sentence and any other relevant matters. Dr Black’s report was written two months ago and was directed substantially towards providing an explanation for presence of drugs in the respondent’s body. I have no evidence as to whether the foreshadowed operation has been carried out and if so what impact it has had on his condition.
Accordingly I propose to order that a further pre-sentence report be provided so that I may make this decision on the basis of up-to-date and more comprehensive evidence than is presently available to me.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 14 November 2001
Counsel for the applicant: Mr K Hempenstall
Solicitor for the applicant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr S Gill
Solicitor for the respondent: Pappas, j
Date of hearing: 11 September 2001
Date of judgment: 14 November 2001
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