Jamie Thomas Nuske v R No. SCCRM 96/435 Judgment No. 5982 Number of Pages 4 Criminal Law and Procedure

[1997] SASC 5982

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA MATHESON, PERRY AND NYLAND JJ

CWDS
Criminal law and procedure - causing bodily harm by dangerous driving - penalty - the appellant, a 23 year old man with a history of minor offending, assaulted a 74 year old man and made off with his car, which he drove into the rear of another car, injuring a passenger in it - a sample of blood taken one and a half hours later indicated a blood alcohol concentration of 0.128% - the appellant suffered from schizophrenia but the medical reports indicated that alcohol, together with the effects of Diazepam, would more likely account for the accident - held that a head sentence of 18 months imprisonment imposed in the District Court should not be interfered with but that having regard to the appellant's mental condition and the other circumstances, the non-parole period of 12 months should be reduced to 8 months. Criminal Law Consolidation Act 1935s199(3), referred to. R v Mason-Stuart (1993) 68 A Crim R 163, considered.

HRNG ADELAIDE, 21 January 1997 (hearing and decision) #DATE 21:1:1997 #ADD 19:2:1997

Counsel for appellant:     Mr C J Charles

Solicitors for appellant:    Aboriginal Legal Rights Movement Inc

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J

1. The appellant appeals against the sentences imposed upon him in the District Court following his plea of guilty to charges of causing bodily harm by dangerous driving, exceeding the prescribed concentration of alcohol and driving without a licence. At least they were the three matters before the court below.The appeal is limited to the sentences imposed on two of those counts, that is to say, the count of causing bodily harm by dangerous driving and driving without a licence.The sentences imposed were, on the charge of causing bodily harm by dangerous driving, 18 months imprisonment with a non-parole period of 12 months; on the count of driving with excess blood alcohol, a fine of $750; on the count of driving while unlicensed, a fine of a further $750.In addition, in respect of all three offences, the appellant was disqualified from holding or obtaining a driving licence for two years. There is no appeal from that order.

2. As to the sentence of imprisonment, it is claimed that the penalty was manifestly excessive in that the learned sentencing judge failed to take proper account of the appellant's psychiatric illness or personal circumstances and failed to take proper account of "rehabilitation".

3. It is further alleged that he erred in failing to suspend the sentence of imprisonment.

4. The fine of $750 on the count of driving whilst unlicensed is alleged to be manifestly excessive in that it was the appellant's first offence of driving a motor vehicle without a licence and the penalty "represented three quarters of the maximum penalty liable to be imposed having regard to s74 of the Motor Vehicles Act".The appellant claimed to have no recollection of the events which led to the collision which is the subject of the charges, which occurred on 7 September 1994.However, the evidence established that, first of all, he forced a 74 year old man, who was the owner of a Holden Commodore sedan, to drive to Salisbury. The appellant there got out of the car, assaulted the owner of the car, took the keys and drove off in it.

5. Almost immediately he had an accident which damaged the vehicle but did not prevent him from driving further. He proceeded to do so in a most erratic fashion, having been observed making his way down the street by a number of people. Eventually he collided with the rear of a stationary vehicle in which the victim, a woman passenger in the rear of the vehicle, was injured. One of her arms was broken. At the time of sentencing, which was in October 1996, she had still not regained the full use of her arm. An analysis of a sample of blood taken an hour and a half after the collision indicated that the appellant had a blood alcohol concentration of 0.128 per cent. There was also a small concentration of Diazepam in the blood. Clinical records which were before the learned sentencing judge disclosed that in the appellant's teen years he was drinking what was said to be up to four litres of port a day, smoking cannabis and taking amphetamines and magic mushrooms. At the time of sentencing, the appellant was 23 years of age. He had a history of prior offending dating back to 1993. The prior offences, it is fair to say, were not in themselves serious.However, it should be noted that he had previously failed to answer bail, and that on the charges in question, a bench warrant was eventually issued out of the District Court in order to secure his attendance in that court for the purpose of sentencing, after he had failed to answer to his bail before that court.The principal feature of the case, for the purposes of the appeal, is that the appellant was diagnosed as suffering from schizophrenia following an admission to Hillcrest Hospital in 1992. Since then there have been two further admissions prior to the offending in question, and he has been in receipt of medication in an effort to control this condition. The medical reports before the learned sentencing judge indicate that the schizophrenia was complicated by drug abuse.The first of those reports was furnished by Dr Ian Jennings, a psychiatrist, and was dated 30 August 1996. In that report is set out a long history of the appellant's psychiatric condition and its treatment.With respect to the offending behaviour, Dr Jennings comments in that report: "There is no evidence from the history provided to me nor information contained in other statements, to suggest his behaviour was directly a result of his schizophrenic illness, although the exacerbation of his auditory hallucinations may have been a contributing factor leading to Mr Nuske to drink alcohol and take the Diazepam initially." Later in the report he said: "Mr Nuske's behaviour on the day of the accident is more consistent with the effects of the excessive alcohol intake exacerbated by Diazepam rather than as a result of his schizophrenic illness."

6. Following the making of submissions on penalty, the learned sentencing judge was prompted to call for a further psychiatric report from Dr Jennings dealing specifically with two questions; namely, whether, in Dr Jennings' opinion, imprisonment would be a greater burden to Mr Nuske by reason of his state of health, and secondly, whether there was a serious risk of imprisonment having an adverse effect on his health.In a further report dated 14 October 1996, Dr Jennings addresses those two questions. He answered the questions by indicating, for the reasons which he sets out in the further report, that he did not believe that imprisonment provided a serious risk of greatly affecting the appellant's health, and he went on to comment:"Nonetheless, imprisonment may provide a degree of greater burden on Mr Nuske just as for any other prisoner who has to cope with a chronic illness during their imprisonment." He thought, however, that the schizophrenia could be well controlled with medication and that this could be managed by psychiatric services provided in the prison including, if necessary, admission to James Nash House.At the forefront of the submissions which were put to this Court very forcefully, and if I may say so, competently, by Mr Charles, counsel for the appellant, was the submission that the learned sentencing judge had failed to make proper allowance for the effect upon the appellant of his condition of schizophrenia, and failed to take proper account of the reduced moral culpability, as he put it, which was a consequence of that condition.The difficulty with that submission is that, on the evidence which was put before the learned sentencing judge, including the second report to which I have referred, the connection between the psychiatric illness and the commission of the offending conduct was indirect to say the least.The learned sentencing judge, during the course of his remarks on sentence, had this to say about that aspect of the matter:
    "It is of some concern that you do suffer from the psychiatric
    condition, namely schizophrenia. I have read both of Dr
    Jennings's reports and I am quite satisfied, from what he had to
    say, that if I send you to prison, you will be cared for properly
    and be given the appropriate medication from time to time. Whilst
    it may be that, according to Dr Jennings, you might find it a
    little bit more difficult than other prisoners who don't have that
    sort of condition, the plain fact of the matter is that it does
    not place upon you a greater burden of such a magnitude that would
    mean that it was a mitigating factor."

7. It is clear from that passage, and from the sentencing remarks as a whole, that the approach of the learned sentencing judge focused on the effect of the schizophrenic symptoms suffered by the appellant with respect to his incarceration if sentenced to a custodial term of imprisonment.But it seems to me that, reading the sentencing remarks as a whole, the learned sentencing judge quite properly must have adopted the position that the evidence did not justify the conclusion that that condition had much to do with the commission of the offence in question.I am not satisfied that he fell into error in adopting that approach.The situation of the appellant is unfortunate in that, to his credit, and notwithstanding his prior record, he has undertaken a course of study at the University of Adelaide. That must be taken into account in determining his prospects of rehabilitation.In my opinion, the Director of Public Prosecution was right when he said that whatever allowance is to be made for the unfortunate mental condition suffered by the appellant, in all the circumstances of the case, the head sentence of 18 months imprisonment could not be said to be manifestly excessive.In my opinion, despite the arguments put by Mr Charles, the appellant has failed to demonstrate that it would be right for this court to interfere with the head sentence.It does seem to me, however, that recognition for the appellant's condition may properly be taken into account in that aspect of the appeal which deals with the non-parole period which was fixed at 12 calendar months.For much the same reason as those which fell from the then Chief Justice, King CJ, in R v Mason-Stuart (1993) 68 A Crim R 163 at 165, I think that recognition of the appellant's plight in that respect can properly be given by a reduction in the non-parole period.In all the circumstances of this case, I would reduce the non- parole period to a period of eight calendar months.As to the appeal against the fine which was imposed on the offence of driving without a licence, it has been conceded by the respondent that this appears to be a severe penalty. It is, in fact, three quarters of the maximum penalty, which is $1,000. It was a first offence, and although it was by no means a minor offence, in those circumstances I would allow the appeal as to the fine for the purposes of reducing it to $400.The only other ground of appeal which it is necessary to deal with was as to failure by the learned sentencing judge to suspend the sentence of imprisonment. The learned sentencing judge did not advert to that aspect of the matter during the course of his sentencing remarks, although he had entertained submissions directed toward that end.I have carefully considered that aspect of the matter, but it does not appear to me, particularly bearing in mind the appellant's record and the very serious nature of the offence now in question, that it could be said that the learned sentencing judge fell into error in declining to suspend the sentence of imprisonment which he imposed. I would dismiss the appeal as to that aspect of the matter.In the result, in my opinion, the appeal should be allowed for the purpose of reducing the non-parole period attached to the term of imprisonment to eight calendar months and for the purpose of reducing the fine imposed on the offence of driving without a licence to $400.

JUDGE2 MATHESON J

8. I agree with the orders proposed by Perry J and with the reasons he has given.

JUDGE1 NYLAND J

9. I also agree with the reasons expressed by Perry J and the orders that are proposed.