Haworth v Bennell - [2010] WASC 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HAWORTH -v- BENNELL [2010] WASC 191

CORAM: JENKINS J

HEARD: 21 JULY 2010

DELIVERED : 21 JULY 2010

PUBLISHED : 30 JULY 2010

FILE NO/S: SJA 1138 of 2009

BETWEEN: JOANNE LUCILLE HAWORTH
Appellant
AND
MICHAEL BENNELL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 85204 of 2008, BU 94857 of 2009, BU 94858 of 2009

Catchwords:

Criminal law - Prosecution appeal against sentence - Driving under suspension and driving under the influence - Sentence of community based order - Sentence inadequate

Criminal law - Prosecution appeal - Order made under the Sentencing Act 1995 (WA) s 80 - Conditional release order - Order beyond power

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Road Traffic Act 1974 (WA), s 5(1)(a), s 49(1), s 49(1)(a), s 49(5)(1)(a), s 63(1), s 63(2)(c)
Sentencing Act 1995 (WA), s 80, s 80(1)(d)

Result:

Appeal allowed

Category: C

Representation:

Counsel:

Appellant: Mr E M Heenan
Respondent: Ms W C Hughes

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Aboriginal Legal Service (WA)

Case(s) referred to in judgment(s):

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Griekspoor v Scott (2000) 23 WAR 530
Hall v The Queen (1999) 21 WAR 364
Lowndes v The Queen (1999) 195 CLR 665
Moody v French [2008] WASCA 67
R v Morgan (1993) 70 A Crim R 368
Sheiner v Roberts [2009] WASC 281
The State of Western Australia v Collier [2007] WASCA 250

JENKINS J: This is a prosecution appeal from the orders made by a magistrate sitting in the Magistrates Court at Bunbury on 6 November 2009. The appeal is against the magistrate's decisions on prosecution notices Bunbury 08/5204, being one count of driving under suspension, Bunbury 09/4857, being one count of driving under the influence of alcohol, and Bunbury 09/4858, being one count of driving whilst under suspension.
In respect of charges 09/4857 and 09/4858 the respondent pleaded guilty before the magistrate and he was sentenced to a community based order for 12 months with a supervision requirement, a programme requirement for grief and alcohol counselling, and a community service requirement for 60 hours' community service work.
The respondent's conviction on those charges breached a suspended imprisonment order which had been imposed on 30 January 2009 for charge 08/5204. In respect of the breach the magistrate released the respondent on a conditional release order for a period of 12 months.

Grounds of appeal

The grounds of appeal against the orders are:
(1)The learned Magistrate erred in fact and in law with regard to charge number BU08/5204:
(a)in finding that circumstances had arisen or become known since the imposition of the suspended term of imprisonment that made it unjust to require the respondent to serve the suspended term of imprisonment, and
(b)in failing to require the respondent to serve the suspended term of imprisonment or part thereof.
(2)Further, and in the alternative, the learned Magistrate erred in law in relation to that charge in imposing a conditional release order when that disposition was not available under section 80 of the Sentencing Act.
(3)The learned Magistrate erred in fact and in law in relation to charge numbers BU09/4857 and BU09/4858 in imposing a sentence that was manifestly inadequate.

Background

On 30 January 2009 the respondent appeared in the Magistrates Court at Bunbury and pleaded guilty to charge 08/5204. He also pleaded guilty to failing to stop at an accident and failing to report an accident to police. The penalties for those offences are not subject to this appeal. On that date the prosecutor told the court:
[A]t 3.15 pm on Monday 21 April 2008 the accused drove a Ford motor vehicle, 1ASD‑021, on South Western Highway, Bunbury. At the time there was a Toyota vehicle being driven in front of the accused's vehicle. A load of tin has dislodged from the vehicle and fallen to the road. The defendant has braked to avoid a collision. Through being unable to stop at the time he crashed into the rear of the Toyota vehicle, then reversed his vehicle and drove off home without stopping.
He also failed to report the crash forthwith to the officer in charge of the nearest police station. Inquiries also revealed that at the time of driving the accused was not the holder of a current valid driver's licence. He's never actually held a licence in this jurisdiction or any other. He has been disqualified for life from obtaining a driver's licence.
Defence counsel then presented a plea in mitigation in which he said that the respondent had left the scene and not reported the accident because he knew he was not licensed to drive. Counsel referred to the respondent's personal problems, being that his brother had died recently, he had diabetes and he was on a disability pension. He said that the respondent and his wife had the care of a 14‑year‑old grandson. He said that the respondent had been out of trouble for five and a half years in respect of driving offences, and it was unlikely that he would re‑offend.
When sentencing the respondent, the magistrate noted that he [the respondent] had eight convictions for driving under suspension. However, her Honour said that because it was five and a half years since his last conviction and because of the respondent's health problems she was prepared to suspend the term of imprisonment she was going to impose.
Her Honour sentenced the respondent to 9 months' imprisonment suspended for a period of 12 months for the offence of driving whilst under suspension. Regrettably, this sentence was recorded on the respondent's criminal history as a sentence of 12 months' imprisonment suspended for nine months.
On 18 September 2009 the respondent appeared before a different magistrate in Bunbury and pleaded guilty to charges 09/4857 and 09/4858. He was remanded on bail for sentence pending the completion of a pre‑sentence report. It is implicit in the transcript that all parties understood that the convictions placed the respondent in breach of the suspended imprisonment order made on 30 January 2009.
On 30 October 2009 the respondent again appeared in court on the charges and the prosecutor read the following facts:
At 6.06 pm, Thursday, 3 September 2009, the accused drove a Holden Commodore, 1BFX‑883, on Brittain Road near Calgerat Street, Bunbury. He was stopped for driving the vehicle with the lights on high beam and once stopped it was ascertained he had consumed alcohol, conveyed to the police station in Bunbury where a breath test gave a reading of .161, calculated to be .160467 at the time.
At the time there were two juvenile males and a female in the vehicle with him. It was further ascertained that he is not authorised to drive a motor vehicle having been subject to a life suspension imposed initially on 13 July 1977. There's a most recent life suspension ‑ and there are five of them ‑ being imposed on 30 September 2003. Numerous suspensions, the last one being 30 January 2009 where he was also suspended for an extended period.
The prosecutor said that on his calculation this was the respondent's fourth driving under the influence conviction and his ninth driving under suspension conviction.
Defence counsel then presented a plea in mitigation. He said that the respondent had been drinking with relatives during the day and was arrested whilst he was driving his wife to the hospital because she was feeling unwell. She had a heart condition. The respondent had not called an ambulance because of the expense and his relatives, who he was drinking with, did not have a motor driver's licence.
It was ascertained that after being arrested, his wife had declined police assistance to take her to the hospital. Counsel said that the children were in the car because of their ages and because the respondent did not want to leave them at home. The magistrate suggested that because the respondent was facing an immediate term of imprisonment, the respondent may wish to have an adjournment to put further material before the court explaining his wife's position and whether she did or did not go to hospital. The matter was adjourned to 6 November.
On that date, the prosecutor advised the magistrate that the arresting officers had said that the respondent's wife had declined repeated offers by the police to take her to hospital or to take her home. He also said that the respondent's wife also appeared to the officers to have consumed alcohol.
The magistrate warned that the respondent was at grave risk of being sentenced to immediate imprisonment. Counsel acknowledged that but submitted that the respondent's action in driving was not a blatant disregard for the law but the result of a medical issue. Counsel also said that the offences were committed seven months into the period of suspension so that he had nearly completed the whole of the suspended imprisonment order. I digress to note that that was not right because the suspended imprisonment order was for 12 months and not nine months. Counsel also relied on the grief the respondent had been suffering over the death of his brother. He said that, given these matters, it would be unjust to imprison the respondent and that the magistrate should consider another suspended imprisonment order.
The magistrate said that he could not do so because he did not think that it was appropriate to impose a suspended imprisonment order when the respondent believed that he was driving in a situation of 'extremity'. This was despite the fact that the magistrate acknowledged that the respondent's first option should have been an ambulance. Against this, the magistrate acknowledged that the respondent was concerned about the cost and timeliness of obtaining an ambulance. After a short exchange with counsel, the magistrate delivered the following extempore sentencing remarks:
You're not a bad man. You just have a very serious problem with alcohol, as the report indicates that when you begin to drink you can't stop. Unless you do something now about your alcohol problem, you're going to cause yourself and importantly your family a great deal of unnecessary stress and heartbreak. Do you understand me?
It is in your power to do something if you want in respect of your alcohol problem. Until you do that I fear that you will be back here again and again and what will then be the result is that the court will then be sending not a bad man to gaol but a man that can't understand that his drinking is destroying his life. Do you understand me?
The respondent answered, 'Yes'. His Honour continued:
I will accept on this occasion that you drove out of concern for your wife's wellbeing and as a result of which given the hour took the children with you ‑ no doubt because they would want to be with their mother ‑ and in the process you tried to avoid what was self‑evidently in the case of being apprehended as a result of not only driving when you have been told not to but also driving having consumed alcohol.
Against that background it would be clearly, in my view, unjust to as a consequence have you placed into custody. I will in respect of the matters; that is, the most recent matters of driving and alcohol yet again and the driving under disqualification, afford you a last opportunity if you decide that you want to do something about your drinking to have the assistance of the community through the agencies. I can't make you. It is your choice. But understand this: your life now ‑ and the lives and conditions of your family ‑ is in your hands. You need to step up and make a decision as a man. Do you understand me?
In that respect, you're released on a community based order for each matter for a period of 12 months. You will be supervised by a community corrections officer in that time. You will undertake counselling for obviously alcohol abuse and as I'm to understand on this occasion you were drinking as a result of your grief and you're to have counselling to deal with the grief. You're to perform in a unpaid capacity 60 hours of work for the community.
Your motor driver's licence as self‑evident is disqualified permanently. In respect to the driving under disqualification, for a period of nine months cumulative. In respect to the suspended imprisonment, I propose without ordering it be activated that you be fined and that would then entitle me to give my discretion under the Sentencing Act to the imposition of a conditional release order and you're released on a conditional release order in lieu of the fine for a period of 12 months to be of good behaviour. If you're not, the matters will come back. If you go to gaol and the consequential harm to your family would be your responsibility not mine. Do you understand? Stand down.

Grounds 1 and 2

These two grounds relate to charge 08/5204. The respondent admits that the magistrate erred in law in imposing a conditional release order. Given that concession it is only necessary for me to briefly state why that is a correct conclusion. The Sentencing Act 1995 (WA), s 80 states how an offender may be dealt with for a breach of a suspended imprisonment order. It states:
80. How re‑offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
(4)If a court does not make an order under subsection (1)(a) it must state its reasons for not doing so.
(5)If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -
(a)section 88 applies in respect of the term to be served; and
b)the court may make a parole eligibility order under section 89,
as if the term to be served were a term of imprisonment being imposed by the court.
[(6)deleted]
(7)If an order is made under subsection (1)(d), then, unless the suspension period has ended, the sentence of suspended imprisonment remains in effect and the suspension period continues to elapse.
(8)An order by a superior court under subsection (1) in a case where the sentence of suspended imprisonment was imposed for an offence for which the person had not been convicted on indictment is to be taken, for the purposes of an appeal against sentence, as being made following a conviction on indictment.
Self‑evidently, s 80 does not permit a court to impose a fine without taking any action in respect to the suspended imprisonment order and then to convert the fine into a conditional release order. The magistrate appears to have considered that the option of a fine in s 80(1)(d) was equivalent to a fine imposed by way of sentence and therefore he could impose a conditional release order in its stead. However, he was wrong to regard himself as sentencing the respondent. As Murray J said in Hall v The Queen (1999) 21 WAR 364:
In the Sentencing Act section 39(2) the various sentences available under that act are referred to including in paragraph (f) the imposition of suspended imprisonment with an order for the release of the offender. An order made under section 80 is not a sentence under the Sentencing Act but it is an order under that act which makes it a sentence within the meaning of the Criminal Code against which by leave the applicant may appeal to this court [24].
As the appellant has pointed out, the reference to the Criminal Code (WA) is no longer applicable given that the right of appeal from an order made under s 80 is now contained in the Criminal Appeals Act 2004 (WA). However, the point made by Murray J that an order under s 80 is not a sentence under the Sentencing Act remains the case. The magistrate was exercising one of the powers in s 80. He was not sentencing the respondent and could not exercise any other power other than one specified in that section.
Further, it is obvious that the magistrate could not do what he did in effectively setting aside the suspended imprisonment order and substituting a conditional release order pursuant to s 80(1)(d). If the power in s 80(1)(d) is exercised and a fine is imposed the suspended imprisonment order remains in force. This is contrary to the effect of the magistrate's order.
Thus, even without considering the matters raised in ground 1, the order by the magistrate in respect of charge 08/5204 must be set aside and a different order under s 80 imposed. In deciding what order should be imposed I may have regard to any relevant matter which has occurred between when the respondent was convicted and the hearing of this appeal. The respondent asks me to consider a number of such matters. I will do so but will first consider ground 3. As to ground 1, it in effect says that the magistrate erred in fact and law in deciding that it would be unjust to require the respondent to serve the sentence of imprisonment. I do not intend to deal with that ground given the merit of ground 2 relating to the same charge.

Ground 3

Ground 3 asserts the sentences imposed on the other two charges were manifestly inadequate. The common law principle of double jeopardy applicable to prosecution appeals no longer applies: Criminal Appeals Act s 41(4)(b).
The legal principles governing an appeal against sentence are well known. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different manner: Lowndes v The Queen (1999) 195 CLR 665, 672.
However, it may intervene if a material error of law or fact is apparent in the sentencing judge's reasons. Such an error can be inferred if the sentence is unreasonable or plainly unjust, for example if it is manifestly inadequate or excessive: Dinsdale v The Queen (2000) 202 CLR 321, 324 ‑ 325.
In respect of ground 3 no material error of fact or law in the magistrate's remarks is alleged. When determining whether a sentence is manifestly inadequate it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed in respect of the crime, the place which the criminal conduct occupies in the scale of seriousness for crimes of that type and the personal circumstances of the offender: Chan v The Queen(1989) 38 A Crim R 337, 342; The State of Western Australia v Collier [2007] WASCA 250 [19].
When considering the standards of sentencing customarily observed with respect to the crime by examining other cases it is apposite to remember what Hunter CJ at common law said in the Supreme Court of New South Wales with the concurrence of other members of that court in R v Morgan (1993) 70 A Crim R 368:
It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co‑offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co‑offender) which merely forms part of that range (371).

The maximum penalty for an offence under the Road Traffic Act 1974 (WA) s 49(1)(a) for a subsequent offence of driving while under suspension is imprisonment for not more than 18 months and a fine of between $1,000 and $4,000: Road Traffic Act, s 49(1) and s 5(1a). The maximum penalty for an offence under s 63(1) of the Road Traffic Act for driving while under the influence of alcohol for a third or subsequent time is 18 months' imprisonment and a fine of between $2,000 and $5,000: Road Traffic Act, s 63(2)(c) and s 5(1a).
Having regard to the maximum penalties and the respondent's prior criminal record, the penalties imposed by the magistrate were at the lower end of the range of any penalties that could have been imposed on the respondent.
As to the standards of sentencing for these offences, the offence of driving whilst under suspension is usually regarded as a serious offence when it involves driving whilst under a court‑imposed suspension, as in this case, because the offence involves a deliberate contravention of a court order: Griekspoor v Scott (2000) 23 WAR 530 and the cases cited therein.
The authorities referred to in Griekspoor and later cases such as Sheiner v Roberts [2009] WASC 281 indicate that the usual penalty for an offence of driving without a motor driver's licence as a result of a court‑imposed suspension of the licence, and where the offender has repeatedly offended in the same way, is a sentence of immediate imprisonment. The suspension of that term of imprisonment is open but it will not be suspended in the usual case. Thus, the sentence imposed by the magistrate for charge 09/4858 was outside the usual range of sentences for an offence of that type.
In respect of the offence of driving under the influence, the appellant relies upon the table of cases which is contained in Sheiner v Roberts. Although that case was not about the standards of sentencing for driving under the influence, it is true that most of the sentences contained in the table were for offences of driving under suspension combined with offences driving under the influence or driving with a blood alcohol content exceeding .08. What emerges from the table is that sentences of immediate imprisonment are usually imposed in such circumstances.
I also refer to the case of Moody v French [2008] WASCA 67 where the Court of Appeal reduced a sentence of 12 months' imprisonment for driving under the influence to 10 months' imprisonment. Moody had two prior convictions for driving with a blood alcohol content in excess of .08 %, one prior conviction for driving with a blood alcohol content in excess of .05 % and three prior convictions for driving under the influence.
When Moody appeared before the sentencing magistrate, she was also sentenced for a further charge of driving with a blood alcohol content in excess of .08 %. The Court of Appeal gave no reasons for determining that the appropriate sentence to be imposed in respect of the offence of driving under the influence was one of 10 months' imprisonment other than to say that it allowed for the operation of the then transitional provisions and made some allowance for the appellant's plea of guilty.
The respondent does not contest the proposition that the usual range of sentences for an offence of driving under the influence when it is coupled with an offence of driving under suspension and it is a repeat of previous behaviour is a sentence of immediate imprisonment. That concession is correct.
Turning now to the place which the criminal conduct occupies in the scale of seriousness for crimes of these types, the appellant submits that the offences were typical examples of the behaviour prescribed by the Parliament.
The offence of driving under the influence was a serious charge because of the respondent's high blood alcohol content. It was also aggravated because the respondent was driving without proper illumination. He was driving in an apparently built‑up area with his lights on high beam. These factors meant that the respondent's offending was a manifest danger to other road users. Additionally, he had three passengers in his car, including two juveniles. The respondent's conduct also put his passengers' safety at risk.
The magistrate's sentencing remarks and the sentence itself did not adequately reflect the dangerousness of the respondent's offending. However, without in any way wishing to diminish the seriousness of the offence, there are more serious examples of it such as when there is proof that an offender has driven a long distance or when the driving under the influence has been associated with reckless or dangerous driving.
I agree that the offence of driving whilst under suspension was, apart from the issue of the respondent's wife's illness, a typical example of this type of offence.
In respect to the effect of Mrs Bennell's illness on the seriousness of the offences, the magistrate accepted that Mrs Bennell was feeling ill and that the respondent drove because he did not see any other option in order to get medical assistance for her. I accept that was a factor which reduced the seriousness of the offence of driving under suspension. I do not accept that it made the case exceptional.
There appear to have been other alternatives to driving such as calling a taxi or ringing a relative to drive Mrs Bennell to the hospital; even if the cost of an ambulance was prohibitive. Although the people or persons with whom the respondent had been drinking did not have a licence or licences, the respondent told the magistrate that he intended to drive from the hospital to a relative's home in order to get a lift back to his home. There was no explanation given as to why this person could not have given his wife a lift to the hospital.
In respect to the offence of driving under the influence, the effect of Mrs Bennell's illness was probably even less mitigatory. The respondent was apparently well aware of his wife's chronic and serious health problems. In those circumstances, if the respondent knew that he was responsible for obtaining medical assistance for her, the onus was on him to remain sober and ensure that there were legal means to transport her to hospital should she need to go.

The respondent's personal circumstances

I now turn to the respondent's personal circumstances. The respondent was 52 at the time of sentence. He was married and had the care of one or two grandchildren. He had chronic health problems such as diabetes, heart disease and hypertension. He had an entrenched alcohol problem and told the author of the pre‑sentence report that he drank until drunk whenever he starts. He had pleaded guilty to the offences at an early point in time.
Whilst his criminal history did not aggravate the offences, it deprived him of credit he would otherwise have received in the sentencing process. In the previous 10 years he had approximately eight prior convictions for driving without a motor driver's licence and three convictions for driving under the influence or exceeding .08 % blood alcohol content. Since becoming an adult, he had had a further 13 convictions for no motor driver's licence and nine convictions for drink‑driving offences. His record for similar offences can only be described as horrendous. In the respondent's favour, I note that he did not commit any traffic offences between August 2003 and April 2008.
The respondent had previously been placed on community based orders, not including a suspended imprisonment order. Whilst four of these had been satisfactorily completed, none of them had had any apparent effect in reducing the respondent's offending in the longer term. He had not been sentenced to an immediate term of imprisonment for any considerable period since 1985. The respondent had breached his most recent community based order.
To the extent that the magistrate took into account the need for the respondent to attend alcohol counselling in deciding to impose a non‑custodial sentence, I would say that at that point there was no evidence before the magistrate that alcohol counselling would not have been available to the respondent in prison or indeed on parole. Secondly, it would seem that the respondent had had other opportunities to attend counselling whilst on community based orders and either he had not done so or they were ineffective in the longer term.
Taking all these matters into account, the sentences imposed by the magistrate for charges 09/4857 and 09/4858 can only be described as manifestly inadequate. They placed far too much weight on the personal circumstances of the respondent and far too little weight on general deterrence. The sentences were out of kilter with the seriousness of the offences and the usual range of sentences for offences of the same type.
I would allow the appeal on ground 3, subject to the proviso in the Criminal Appeals Act, s 14(2), that even though a ground of appeal may be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. I am required to consider the respondent's current circumstances in order to determine whether the proviso ought to be applied.
In respect to the application of the proviso and any orders made on appeal, the respondent has filed an affidavit sworn by his solicitor, Wendy Camille Hughes, on 16 July 2010. It supports the respondent's submission that since he was sentenced for these offences, his circumstances have changed in the following manner:
(1)he has completed his 60 hours' community service work;
(2)he has reported for supervision to a Bunbury community corrections officer and complied with his supervising officer's directions;
(3)he has completed four sessions with the South West Community Drug Service Team;
(4)on 7 February 2010 his wife passed away;
(5)on 8 April 2010 he had his toes amputated and he has ongoing health problems;
(6)as at 15 July 2010, indeed as of today, he is an inpatient in hospital; and
(7)he has not committed any further offences since the imposition of the community based order.
In respect to the respondent's medical condition, today I have been provided with a further report which indicates that the respondent is currently being treated for a medical condition related to peripheral vascular disease, at Bunbury Regional Hospital. He is currently unfit to attend court. I have been told by Ms Hughes that the respondent is being transferred to Royal Perth Hospital today for further investigations. It is clear that the respondent has serious health problems which are currently being properly managed in the community and in hospital. He has an ongoing need for medical attention which it seems is best provided in the community.
Turning then to the ultimate disposition of the appeal, the proviso should not be applied to ground 2 and charge 08/5204. An order in accordance with the law should be made in respect to the breach of the suspended imprisonment order. Were it not for the changes in the respondent's circumstances since November of last year, I would not hesitate in ordering the respondent to serve all or at least part of the suspended imprisonment order. However, it is my opinion that there have been changes in the respondent's circumstances which would make it unjust to require him to serve that term.
In particular, I note his physical disabilities caused by the amputation of his toes, his ongoing health problems requiring recent hospitalisation and the death in February of this year of Mrs Bennell who was his life partner since he was a teenager. In addition, the respondent has not offended since November 2009 and his supervising community corrections officer has provided a positive report of his response to supervision.
Taking these matters into account, I consider that I ought to set aside the order of the magistrate on charge 08/5204 and substitute a suspension period of 18 months for the suspension period originally set. As I have discussed with counsel that period will commence from 6 November 2009.
In respect to the other two charges I am of the opinion that the proviso ought not to be applied even given the respondent's personal circumstances. Though, having regard to those circumstances and the fact that he has complied with all the requirements of his community based order I regard it as now inappropriate to require him to serve sentences of immediate imprisonment or even to impose sentences of imprisonment which would then be suspended.
I note, however, that were it not for the changes in his personal circumstances, I would agree with the appellant's submission that at the very least it would have been appropriate to impose suspended terms of imprisonment for these offences as of November 2009. Having regard to the respondent's current circumstances the appellant submits that it may be appropriate to leave the community based order in effect. That concession is very much in the respondent's favour.
Despite that concession, having regard to the grief that the respondent is no doubt suffering over the loss of his wife and also the loss of his mobility due to the amputation of his toes and his health problems, I am concerned that the period of 12 months' supervision imposed by the magistrate may indeed be insufficient to protect the community. I have reached this view even after having regard to the reduced likelihood of the respondent re‑offending due to the fact that he has been subject to supervision and counselling for the last seven or eight months. Consequently, the appeal should be allowed in respect to ground 3, the community based order imposed by the magistrate should be set aside to the extent of its length and a community based order for a term of 18 months, commencing 6 November 2009 ought to be imposed.
That community based order will be subject to a supervision and programme requirement. The programme requirement is to address his alcohol and grief issues. It seems that the practical way to achieve that is to vary the sentence imposed by the magistrate by extending the community based order from one of 12 months to one of 18 months. That way the conditions imposed on the order will remain as they were as imposed by the magistrate, except for the length of the term.