Gray v Police No. Scciv-02-1533

GRAY v POLICE
[2004] SASC 109
Magistrates Appeal

GRAY J This is an appeal against sentence.
Introduction
The appellant, Ernest Charles Gray, a young Aboriginal man, was arrested on 3 January 2001 for various traffic offences[1] and taken to Port Adelaide police station. Upon arrest police discovered that there were outstanding warrants against the appellant.
[1] The charges were drive or use motor vehicle without consent, drive without a valid driver’s licence and provide false name and address.
Following his arrest the appellant requested medical treatment. Despite this request, he was not seen by a medical practitioner while in custody.
During the evening of 3 January 2001 the police observed the appellant behaving in an aggressive and violent manner and threatening self harm. In the early hours of 4 January 2001 he was placed alone in a padded cell. He was observed on surveillance camera to rip the lining of the cell. He was then removed from the padded cell and placed in a normal cell. He was reported for property damage to the padded cell. Shortly thereafter, while in the normal cell, the appellant was observed on surveillance camera to reach above the door and strike the camera cover. This resulted in the camera being put out of focus. He was reported for property damage to the camera. When questioned he admitted damaging the padded cell but denied striking the camera.
During the course of the appeal it became apparent that relevant information concerning the appellant and the circumstances of his offending had not been disclosed to the magistrate. Further evidence was received by consent. Counsel for the Crown conceded that the appeal should be allowed. Counsel for the Crown also accepted that the further evidence raised for discussion and consideration important issues arising from recommendations of the Royal Commission into Aboriginal Deaths in Custody. As the appeal is to be allowed and the appellant re-sentenced, it is only necessary to briefly trace the events before the Magistrates Court before discussing the further evidence in more detail.
The Magistrates Court Proceedings
The facts were presented by the prosecutor and the appellant’s antecedent report was handed to the magistrate.
The appellant’s counsel then made submissions. His personal circumstances were briefly outlined and a submission was made that he should receive credit for pleading guilty at the earliest opportunity. It was also pointed out that the matter had been delayed for some 18 months. It was said that the appellant had lost the opportunity of having these offences dealt with at the time that other matters were before the court. It was submitted that the offending was of a minor nature and should not lead to a sentence of imprisonment.
The magistrate convicted the appellant and imposed a sentence of three months’ imprisonment. He directed that the sentence be cumulative upon the existing sentence of imprisonment. He declined to fix a new non parole period. When sentencing the magistrate remarked:
The damage to the cell and camera occurred when you reacted badly to being put in a padded cell in Port Adelaide and you were transferred out of that and put in another cell and you did not like the camera being on you. You were obviously pretty stirred up at the time. Remember that the cameras are there to show if you are sick or having a fit so people can respond to you. It is not just there to spy on you.
The Appeal
Original Grounds
The primary ground of appeal was that the sentence imposed was manifestly excessive. It was submitted that the offending conduct should not have led to a term of imprisonment. It was argued that if it was appropriate to impose a term of imprisonment, it should have been reduced on account of the early plea and should have been ordered to be served concurrently with the sentence of imprisonment then being served. It was complained also that the magistrate failed to have regard to the delay that had taken place in bringing the complaint before the court.
Personal Antecedents
The appellant was born in Ceduna. He has never met his father. He was raised initially by his mother, a Pitjantjatjara woman. His mother was an alcoholic and he was removed from her care by the State when he was 10 years old. He was then placed with his grandmother from the age of 10 to 14 years. She too was a Pitjantjatjara woman. The appellant says that he thinks of her as his mother.
When he was 14 years old the appellant was declared a ward of the State and removed from his grandmother’s care. He was then raised in foster homes and juvenile residential institutions. He attended 15 different schools. It has been reported that he had learning difficulties, but was never given any remedial education assistance. He was frequently in trouble for fighting at school and was often absent, suspended or expelled.
The appellant has suffered from drug addiction since about the age of 16 years. He has abused cannabis, amphetamines, prescription medications and heroin.
Criminal Antecedents
The appellant has a long history of criminal offending. He had a number offences as a young man commencing at the age of 12. The offending primarily related to property and dishonesty offences.
The appellant’s offending continued as an adult. The nature of his offending became more serious, as did the punishments imposed. He has been dealt with by bonds, fines, suspended sentences and ultimately by immediate custodial sentences. None of these sentences appear to have had any effect on curbing the appellant’s criminal behaviour. Recent offending led to a term of imprisonment of more than three years.
Further Evidence
Matters Personal
Detailed psychological evidence was placed before this court which describes the appellant as being functionally illiterate and as having an intellectual disability.[2] Tests were inconclusive as to whether this disability arose during childhood, was the result of substance abuse, or arose from a combination of factors. In any event, on appeal, counsel for the Crown accepted that at the time of the offending the appellant had a borderline intellectual disability. The appellant’s problems were exacerbated by drug addiction. At the time of his arrest he was suffering from the effects of heroin. He had been receiving medical treatment for heroin addiction.
[2] Reports of Mr Balfour dated 28/8/01, 19/2/03, 10/8/03
A psychologist initially reported:[3]
[3] Mr Balfour’s report of 28 August 2001
The psychological profile is that of a 24 year old man of Aboriginal ancestry who has an intellectual disability in the mild range (i.e., in the bottom two percent of the general population) and he is functionally illiterate. He has a history of developmental delays. For example, he did not learn to talk until he was five years old. He suffered from epilepsy during his childhood which he has outgrown. He has a history of learning problems but was never given the benefit of being placed in a special education class. He has a history of poor educational achievements and has worked as a labourer. He has a history of conduct disorder during his adolescence. He has an antiauthoritarian attitude. He has low self-esteem and feels ashamed regarding his poor literacy and numeracy skills. He has a childhood history of being teased due to his intellectual limitations and Aboriginal ancestry and this has primed him to act in an aggressive manner. He has a history of feeling distress about not knowing the identity of his biological father. He has poor social skills and gravitates towards negative peer groups due to a lack of social alternatives and his history of addiction. He has a history of anger management problems caused by his low tolerance of frustration and problems with delaying self-gratification, and being involuntarily taken from his mother at the age of 10. He does not have a history of alcoholism and his main drugs of abuse are heroin and amphetamine. He is showing signs of becoming institutionalised into the criminal-justice system. He has developed a moderately severe depressive illness since he has been incarcerated on remand. His presentation and personal history are consistent with a diagnosis of a personality disorder characterised by mixed traits.
…
An intellectual disability is a life-long and irreversible condition which has been present during the developmental period (1 to 18 years of age) and has resulted in significant impairments in daily living skills.
Intellectually disabled individuals comprise approximately 3 percent of the general population in the community. In contrast, research into the prevalence of intellectually disabled individuals in the prison population has consistently found that they are over-represented, consisting of approximately 10 percent of the inmate population.
Intellectually disabled individuals are socially naïve and gullible and therefore vulnerable to exploitation by individuals of normal intelligence. Without adequate support in the community they can come into conflict with the law and be displaced into the criminal-justice system, where they are frequently disadvantaged due to their limited ability to appreciate and exercise their legal rights. Without adequate support, intellectually disabled individuals are at a significant disadvantage in the criminal justice system.
[The appellant’s] current offences represent another episode in a series of similar offending within the context of his disorganised lifestyle caused by his intellectual disability, personality disorder, and history of drug addiction.
He has a history of admissions to James Nash House for treatment due to becoming suicidal.
I believe that further periods of incarceration will reinforce [the appellant’s] institutionalisation into the criminal justice system. Any potential deterrent effects of incarceration against further offending will be negated by the fact that his core psychosocial issues that maintain his offending in the community have never been adequately and comprehensively addressed. He has been severely disadvantaged by the fact that his intellectual disability was not correctly identified at an earlier stage of his life so that he could be linked to appropriate rehabilitation programmes and thus minimise his contact with the criminal justice system.
[The appellant’s] prognosis to cease offending in the near future without the assistance of a supervised, structured rehabilitation program … [is poor]
A further psychiatric report concluded:[4]
In summary, therefore, [the appellant] is well known to health services within the Correctional system. His physical history is uneventful. In psychiatric terms, there is a consensus of opinion that he has a Borderline Personality Disorder in which impulse control and anger management are problematical for him. A variety of medications have been attempted with little or lasting benefit. Additionally, [the appellant] abuses a variety of drugs, including heroin, amphetamines and marijuana. He used to drink, but states that he now longer does so. [The appellant] is illiterate and can neither read nor write. He suffers from an Intellectual Disability.
[The appellant] has a number of challenging behaviours, which are, at least in part, related to his background and Intellectual Disability. On his release from custody, he will need assertive case management, involving a variety of disciplines. I would recommend that Community Corrections be the lead agency in this respect, but appropriate referral may have to be made to other agencies such as has been recommended in Mr Balfour’s report. In the absence of any definable mental illness as such, I very much doubt that mental health services have anything to offer [the appellant]. However, Forensic Mental Health Services would be prepared to entertain a community referral if at any time the Department for Community Corrections is of the view that a further psychiatric assessment is required.
In conclusion, [the appellant] has a history that placed him at risk for an acquired brain injury. However overall, the results of the psychological assessment indicated that he has a mild intellectual disability and does not suffer from severe to profound cognitive impairment caused by an acquired brain injury. I believe that [the appellant’s] poor impulse control problems are more a function of his inadequate socialisation, drug and alcohol abuse, and personality disorder rather than an acquired brain injury.
Circumstances of Detention
[4] Dr KP O’Brien’s report of 19 February 2003
Counsel for the Crown acknowledged that the appellant had informed the police that he normally took medication to deal with symptoms resulting from his heroin addiction. He told the police of other medical concerns. He requested medical treatment. The police contacted a locum medical practitioner and requested that he attend to see the appellant at the police station. The medical practitioner initially agreed, but soon after advised that he would not attend to see patients in custody. Further enquiries were made by the police about the possibility of taking the appellant to hospital, but there was no officer available. As a result the appellant did not receive any medical assessment or treatment.
At approximately 3.00pm on 3 January 2001, when arrested, the police observed the appellant to be “sober, co-operative and not distressed in any way”. However at about 9.25pm the appellant was observed to become agitated. He was banging and kicking at the yard gates and screaming abuse. He was taken from the yard area and placed alone in an observation cell. No further steps were taken to obtain any form of medical assessment or review. The appellant continued to act in an agitated manner. He threatened to harm himself. Police then placed the appellant alone in the padded cell. They continued to monitor his behaviour. Following the incident in the padded cell, the appellant was removed and placed alone in a normal cell.
The Royal Commission Recommendations
Further evidence placed before this court disclosed that the appellant had not been dealt with in accordance with the recommendations of the Royal Commission into Aboriginal Deaths in Custody. It is important to recognise that the recommendations, although adopted as policy by all State and Federal governments, do not have the force of law. Notwithstanding the absence of legislative backing, these recommendations do provide a benchmark against which the circumstances of the appellant’s detention can be assessed. Three recommendations are of particular relevance.
Medical Attention – Recommendation 127
Recommendation 127 provides:
That Police Services should move immediately in negotiation with Aboriginal Health Services and government health and medical agencies to examine the delivery of medical services to persons in police custody. Such examination should include, but not be limited to, the following:
a. The introduction of a regular medical or nursing presence in all principal watch-houses in capital cities and in such other major centres as have substantial numbers detained;
b. In other locations, the establishment of arrangements to have medical practitioners or trained nurses readily available to attend police watch-houses for the purpose of identifying those prisoners who are at risk through illness, injury or serf-harm at the time of reception;
c. The involvement of Aboriginal Health Services in the provision of health and medical advice, assistance and care with respect to Aboriginal detainees and the funding arrangements necessary for them to facilitate their greater involvement;
d. The establishment of locally based protocols between police, medical and para-medical agencies to facilitate the provision of medical assistance to all persons in police custody where the need arises;
e. The establishment of proper systems of liaison between Aboriginal Health Services and police so as to ensure the transfer of information relevant to the health, medical needs and risk status of Aboriginal persons taken into police custody; and
f. The development of protocols for the care and management of Aboriginal prisoners at risk, with attention to be given to the specific action to be taken by officers with respect to the management of:
i. intoxicated persons;
ii. persons who are known to suffer from illnesses such as epilepsy, diabetes or heart disease or other serious medical conditions;
iii. persons who make any attempt to harm themselves or who exhibit a tendency to violent, irrational or potentially self-injurious behaviour,
iv. persons with an impaired state of consciousness;
v. angry, aggressive or otherwise disturbed persons;
vi. persons suffering from mental illness;
vii. other serious medical conditions;
viii. persons in possession of, or requiring access to,medication; and
ix. such other persons or situations as agreed.
The appellant asked to see a medical practitioner. This should have occurred. In the present case the need for medical assistance was acute because of the information provided to the police by the appellant and his later angry aggressive behaviour. If the recommended facilities referred to in Recommendation 127 had been in place, the appellant would have received medical treatment appropriate to his condition. However it appears that adequate locally based protocols between police and medical agencies to facilitate the provision of medical assistance were not in place.
It may be accepted that the police at the time did all that they could with the resources, systems and protocols then available. However, the available resources were inadequate to address the situation that arose.
Use of Padded Cells – Recommendation 142
The problems associated with the use of padded cells in police stations were discussed at length in a paper forming part of the research material available to the Royal Commission:
The use of ‘padded cells’ for emotionally distressed individuals is very problematic, particularly without professional psychiatric assessment and monitoring. Such a cell can act as a sensory deprivation chamber, and can markedly increase distress, reactance and experienced isolation.
While ‘seclusion rooms are utilised in some psychiatric intensive care units, they are only used on the authorisation of and with the continued supervision of a mental health professional, in the context of formal guidelines…These formal guidelines prescribe constant observation. These rooms are substantially larger than the typical watch-house padded cell, often with visual access to the outside environment, and typically have no padding on walls or floors…In contrast, padded cells in police lockups are typically very small, with no visual access, with massive, vault-like doors, poor ventilation and no concessions whatsoever to the emotional distress which an individual might well be experiencing…
…In addition to the absence of a formal policy regarding the use of such facilities, there would appear to be no explicit policy with respect to the criteria police staff should follow in making the decision to place a detainee in the padded cell…
To the extent that such a facility is used punitively, this can greatly increase perceptions of injustice, targeting and discrimination. Again, what is most important is the experience of the detainee in such an environment. In addition to being held incommunicado, often in darkness, the altered feedback from such a room can substantially increase feelings of disorientation. The use of such a facility in a police custody situation, without the presence and close involvement of a psychiatrist or clinical psychologist, is ill-advised, however well-intended the rationale.[5]
[5] Joseph Reser, ‘The Design of Safe and Humane Police Cells: A Discussion of some Issues relating to Aboriginal People in Police Custody’, Research Paper No. 9, October 1989.

Recommendation 142 of the Royal Commission report addressed the identified concerns:
That the installation and/or use of padded cells in police watch- houses for punitive purposes or for the management of those at risk should be discontinued immediately.
The appellant was at risk. He was an indigenous person with a history of drug addiction, in need of medical treatment, behaving in an aggressive manner and threatening self-harm. He should not have been placed in a padded cell without medical advice and supervision.
Solitary Detention – Recommendation 144
Recommendation 144 is in the following terms:
That in all cases, unless there are substantial grounds for believing that the well being of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be placed alone in a police cell. Wherever possible an Aboriginal detainee should be accommodated with another Aboriginal person. The views of the Aboriginal detainee and such other detainee as may be affected should be sought. Where placement in a cell alone is the only alternative the detainee should thereafter be treated as a person who requires careful surveillance.
It is apparent that compliance with Recommendation 144 may cause difficulties at times in a busy police station. However the problems that face young Aboriginal persons alone in police cells is well documented. The circumstances in the present case demonstrate how inappropriate it was to detain the appellant alone in a padded cell and then alone in a normal cell. He was unable to cope with either form of detention.
Resentencing
The further information placed before this court demonstrates that a custodial sentence was inappropriate for the offending the subject of the appeal. He was a young intellectually disabled indigenous man affected by drugs. He sought medical attention, but did not receive it. His condition deteriorated when he was “locked up”. He became angry and aggressive and out of control. He was placed alone in a padded cell. As the magistrate observed, he was causing strife. It should have been obvious that he was likely to damage the cell in these circumstances. The facts, as now known to this court, lead me to the conclusion that it was inappropriate for the appellant to have been charged at all.
It was against the above background and with the knowledge of the appellant’s borderline intellectual disability that counsel for the Crown submitted that the appellant had reached “a crossroads” and that an attempt should be made to structure a sentence that would address his need for support or rehabilitation. Counsel for the appellant agreed.
During the sentencing process the court was informed that the appellant would be released on parole for his existing sentence of imprisonment in late March 2004. It was agreed that this court should defer sentencing until the time of the appellant’s parole. A sentence could then be constructed in a way that would “dovetail” with the terms of his parole.
The further evidence placed before this court demonstrates that the appellant’s criminal culpability in respect of the offending while in police custody was minimal. The Crown was right to concede that this appeal should be allowed. This was not a case for a custodial order.
Three other Magistrate’s Court files were transferred to this court in order that the one court could resolve all outstanding matters. The first outstanding matter involved charges of unlawfully receiving goods and giving a false name and address[6] on 4 May 2002. The second and third outstanding matters were two separate counts of unlawful possession[7]. The appellant entered pleas of guilty to all these charges. The Crown accepted that the court should impose one sentence pursuant to section 18A having regard to all matters before the court. It was further agreed that it was appropriate to proceed without any form of custodial sentence. The appellant should be afforded the opportunity to rehabilitate following his release on parole.
[6] The Complaint was in the following terms:
On the 4^th day of May, 2002 at Adelaide in the said State, received a mobile telephone and money in the amount of $210 together the property of Patricia Distefano knowing them to have been obtained in circumstances amounting to an offence.
Section 196 of the Criminal Law Consolidation Act, 1935.
On the 4^th day of May at Rosewater in the said State, being a person reasonably suspected by Matthew Burrage, a member of the police force, of having committed an offence namely receiving stolen property, and having been required by such member of the police force to state his full name and address, stated a name and address that was false.
[7] The Complaints were in the following terms:
The appeal is allowed. The sentence imposed by the magistrate is set aside. The appellant was re-sentenced pursuant to section 18A of the Sentencing Act.
In the circumstances it is appropriate to proceed without conviction in respect of the property damage offences and to release the appellant on a bond. In respect of the other offences convictions are recorded. The terms of the bond include that the appellant:
-be of good behaviour, and comply with all the other conditions of this bond.
-be under the supervision of a community corrections officer for a period of 2 years and obey the lawful directions given to him by the community corrections officer to whom he is assigned for the purposes of supervision.
-comply with any direction your Community Corrections Officer may give with respect to attending and completing any educational or vocational courses, particularly with relation to alcohol and drug abuse, anger management, literacy and numeracy.
-abstain from alcohol, unless he has the prior written permission of his Community Corrections Officer.
-shall not, other than in strict accordance with the directions given to him by a legally qualified medical practitioner upon a prescription issued by that doctor, use, possess or administer any narcotic or psychotropic drugs or any drug which cannot be legally obtained without the prescription. Further, that for drugs available without prescription, [the appellant] shall take only the recommended dosage.
-present himself for breath testing and urine analysis as and where directed by his Community Corrections Officer and that he do all things and sign all such forms as may be necessary to enable this.
It is important that agencies now involved in the appellant’s supervision and rehabilitation have the resources necessary to support him in his rehabilitative process. It is to be expected that the agencies will have regard to the psychologist’s recommendations referred to earlier in these reasons. It is desirable that his Aboriginal community provide him support and guidance. The terms of the bond may need to be amended to meet changing circumstances and accordingly the appellant is to have liberty to apply to vary the terms of the bond. These reasons should be made available to the agencies that are to be involved with the appellant’s future supervision.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1The charges were drive or use motor vehicle without consent, drive without a valid driver’s licence and provide false name and address.
2     Reports of Mr Balfour dated 28/8/01, 19/2/03, 10/8/03
3      Mr Balfour’s report of 28 August 2001
4      Dr KP O’Brien’s report of 19 February 2003
5Joseph Reser, ‘The Design of Safe and Humane Police Cells: A Discussion of some Issues relating to Aboriginal People in Police Custody’, Research Paper No. 9, October 1989.
6      The Complaint was in the following terms:
On the 4^th day of May, 2002 at Adelaide in the said State, received a mobile telephone and money in the amount of $210 together the property of Patricia Distefano knowing them to have been obtained in circumstances amounting to an offence.
Section 196 of the Criminal Law Consolidation Act, 1935.
On the 4^th day of May at Rosewater in the said State, being a person reasonably suspected by Matthew Burrage, a member of the police force, of having committed an offence namely receiving stolen property, and having been required by such member of the police force to state his full name and address, stated a name and address that was false.
7      The Complaints were in the following terms:
On the 4^th day of May,2002 at Adelaide in the said State had in his possession personal property namely a mobile telephone and money in the amount of $210.00 which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.
Section 41(1) of the Summary Offences Act, 1953.
Between 5^th day of May 2002 and the 7^th day of May 2002 at Mansfield Park in the said State, had in his possession personal property namely a cookbook, stereo amplifier, CD storage unit, playstation games, car speakers, two car radios, graphic equaliser and a computer desk which either at the time of such possession, or at subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.
Section 41(1) of the Summary Offences Act, 1953.

On the 4^th day of May,2002 at Adelaide in the said State had in his possession personal property namely a mobile telephone and money in the amount of $210.00 which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.
Section 41(1) of the Summary Offences Act, 1953.

Between 5^th day of May 2002 and the 7^th day of May 2002 at Mansfield Park in the said State, had in his possession personal property namely a cookbook, stereo amplifier, CD storage unit, playstation games, car speakers, two car radios, graphic equaliser and a computer desk which either at the time of such possession, or at subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.
Section 41(1) of the Summary Offences Act, 1953.

[2004] SASC 109

23 April 2004