Jones v Police - [2005] SASC 217

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
JONES v POLICE
Judgment of The Honourable Justice Nyland (ex tempore)
9 June 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT
Appeal against sentence imposed in Magistrates Court - charge of assault occasioning actual bodily harm - accused diagnosed with brain injury as a result of motor vehicle accident when younger - evidence not provided to magistrate - fresh evidence - sentence of magistrate set aside - fresh sentence - suspended sentence with good behaviour bond

JONES v POLICE
[2005] SASC 217
Magistrates Appeal
Criminal
Nyland J:

This is an appeal against sentence. The appellant was charged on information with the offence of assault occasioning actual bodily harm, providing a false name to police and consuming alcohol on a passenger transport vehicle on 31 December 2003.
The appellant pleaded guilty to all three charges. On 16 June 2004 in the Adelaide Magistrates Court, he was sentenced to two months imprisonment with respect to the charge of assault occasioning actual bodily harm, and that sentence was not suspended. The magistrate recorded a conviction without penalty with respect to the remaining two charges.
At the hearing in the Magistrates Court, the appellant was represented by Ms Dixon of counsel. The circumstances of the offending and submissions made on behalf of the appellant are set out in para 7 of her affidavit sworn on 13 August 2004.
There is no dispute that the appellant was grossly affected by alcohol at the time that he offended. This was a matter specifically mentioned by the learned magistrate when reaching a decision that it was not appropriate to suspend the sentence of imprisonment.
Subsequent to sentence being imposed it came to the attention of the appellant’s legal advisers that the appellant had suffered a brain injury as a result of a motor vehicle accident which had occurred when he was younger. That information, however, was not provided to the learned magistrate at the time of sentence.
On the hearing of the appeal, a report of Brain Injury Options annexed to the affidavit of the appellant’s solicitor confirmed that the appellant had received injuries in a motor vehicle accident on 3 June 1994 when he was only 19 years old. As a result the appellant suffered from a number of problems due to a brain injury which included the need for close supervision to assist the appellant in coping with this misuse of alcohol, drugs or other behaviour which would cause him to lapse. As a result of this report, the Crown quite properly conceded that there was fresh evidence which had not been available to the magistrate and that it was appropriate to allow the appeal, set aside the original sentence and consider the sentencing discretion afresh.
To assist in the sentencing process, I ordered a pre-sentence report, and a report from Mr Said, a neuro-psychologist who had assessed the appellant at the time of his accident.
In a report dated 30 August 2004, Mr Said indicated that the appellant had difficulty with alcohol, although he had expressed a firm resolve to cease drinking alcohol completely with the assistance of Alcoholics Anonymous. Mr Said said in his report, however, that the type of frontal lobe injury sustained by the appellant has been termed “a disconnection between knowing and doing”. Therefore the stated resolve to cease drinking alcohol was no guarantee that the appellant would achieve that aim. Mr Said recommended that the appellant accept referral to a psychiatrist for consideration of medication to help him manage his depressed mood and anger without marijuana and alcohol. Mr Said also mentioned that the appellant had the support of his uncle and that the appellant had responded well to his uncle as a mentor. Mr Said considered that a process of supervision under the justice system would help the appellant carry out his resolve of abstaining from alcohol. He thought that it was unlikely that the appellant would benefit in any way from serving a prison term but that a suspended sentence might increase his motivation to co-operate with supervision and abstain from drinking alcohol.
As a result of various matters contained in Mr Said’s report I decided to defer sentencing of the appellant in order to follow up some of Mr Said’s recommendations. I varied the appellant’s bail to provide that the appellant be under the supervision of a Community Corrections officer, that he undertake drug and alcohol counselling, and that he attend an assessment with the management assessment panel and comply with such interventions and assessment as they deemed necessary which included psychiatric or psychological assessment.
The matter came on for further hearing before me on 8 December 2004, at which time I was in receipt of an addendum pre-sentence report. That indicated inter alia that the appellant had declined to attend a management assessment panel meeting held at the Julia Farr Centre on 25 November 2004. After hearing further submissions I further adjourned the matter in order to monitor the appellant’s progress on bail and I ordered a further pre-sentence report.
The matter next came on for hearing on 6 April 2005. It appeared that the appellant had made some progress although he had missed some appointments with the Community Corrections officer. The appellant did not appear to have received any psychiatric or psychological assistance however, so I ordered that there be a further pre-sentence report with particular reference to referral arrangements made with Dr Krieg of Aboriginal Health at Nunkuwarrin Yunti, and that there be a further report as to psychiatric or psychological treatment given to the appellant in the interim period. I also ordered that the previous request that the appellant be referred to a prisoner support program take place as a matter of urgency.
A further pre-sentence report dated 1 June 2005 indicated that the appellant was now complying with directions from his supervising officer at Community Corrections and that he had attended appointments as directed with Mr Richard Balfour, a psychologist of Forensic Mental Health Service and Dr Kreig of the Nunkinwarrin Yunti aboriginal prisoner program. The case manager recommended that consideration be given to imposing a community based penalty to enable the Correctional officer to facilitate access to agencies catering to the appellant’s specific needs and monitoring his progress and compliance with the order. This included conditions that the appellant be under the supervision of a Community Corrections officer and comply with reasonable directions by the supervising officer, that he attend appointments with Nunkinwarrin Yunti aboriginal health program and that a medical practitioner prescribe the appropriate medication therapy if deemed appropriate.
It was further recommended that the appellant re-establish contact with the Brain Injury Options with the assistance of his supervising officer and that the Brain Injury Options work with the appellant’s family to facilitate further education and support around the appellant’s injury.
I was also provided with a detailed report from Mr Balfour dated 1 June 2005. That sets out the appellant’s history in considerable detail. Mr Balfour described the appellant’s offending behaviour as the actions of a man who was experiencing on-going social adjustment problems caused by a post-traumatic brain injury and associated losses. Mr Balfour said that the appellant had resorted to alcohol and cannabis use to cope which then placed him at risk of offending. Mr Balfour considered that the appellant would cope poorly if he were given an immediate custodial sentence. He believed that there was a high probability that the appellant would re-offend as long as he continued to abuse alcohol and resist participating in a supervised structured rehabilitation plan.
Mr Balfour’s recommendation regarding the appellant’s rehabilitation was that he participate in a supervised structured rehabilitation program which included:
1.Vigorous case management and the implementation of BIOC’s proposed community rehabilitation plan dated 21/01/99.
2.I note that he was reluctant to attend a scheduled MAPS meeting. I believe that he should be referred to MAPS again and provided with the support of his lawyer, and a mentor, who can encourage him to attend.
3.Referral to the Drug and Alcohol Services Council for individual counselling regarding his alcohol and cannabis usage. He may be a suitable candidate to be prescribed classes of medication which reduce the urge to consume alcohol.
4.He be assisted to complete his Level III Certificate in carpentry through the CDEP programme. He then be referred to the special intervention programmes offered by Centrelink to assist him secure full-time employment. I do not think he would work in a sheltered workshop because he would feel stigmatised. Full-time employment will have a stabilising effect on his behaviour in the community.
5.Referral to the University of South Australia’s Occupational Therapy School’s Driver Assessment Unit for the neurologically impaired to determine if he is a safe driver.
6.Referral to appropriate recreational pursuits. There are a number of agencies which provide recreational activities and plan holidays for individuals with a disability.
7.Referral to a psychiatrist to assess his suitability for pharmacotherapy and whether a treatment order maybe of assistance regarding his compliance with medication.
8.A culturally appropriate mentor be assigned to Mr Jones to build rapport with him and to enlist his cooperation with a rehabilitation programme.

9.Random urine screens to monitor his usage of illegal drugs.

10.I believe that Mr Jones should be forbidden from consuming alcohol as a condition of his sentencing. However, I believe that a lot of discretion should be given to his Probation and Community Service Officer when monitoring this condition. I believe it is probable that Mr Jones may experience sporadic relapses of his alcohol abuse while overall making progress in overcoming the problem. His probation and parole officer would need to be allowed to exercise their professional judgement regarding this condition.

11.Referral to a psychologist who could use cognitive-behavioural therapy to assist Mr Jones: learn to utilise external memory aides to compensate for his poor short-term memory and disorganisation; learn to control his anger; improve his self-esteem; learn to be assertive when dealing with negative peers; and change those criminogenic attitudes which maintain his offending behaviour.

12.Referral to community-based support organisations for Aboriginal people.

13.He be provided legal support so that he can resolve issues concerning having access to his children, family court issues, and protecting his financial assets.

14.Referral to Dr Kreig at Nunkinwarrin Yunti for the management of his medical needs. I believe that Nunkinwarrin Yunti has access to a visiting psychiatrist who is interested in indigenous mental health issues.

In considering the appropriate sentence to impose upon the appellant I have taken into account all of the matters contained in these reports. I have decided that it is appropriate to impose a sentence of imprisonment to reflect the seriousness of this offence. In view of the personal circumstances of the appellant, however, it is appropriate for me to exercise my discretion to suspend that sentence on condition that the appellant enter into a bond with conditions which will foster his future rehabilitation.
I allow the appeal and set aside the sentence imposed by the learned magistrate. I take into account that the appellant spent eight days in custody prior to being released on bail and sentence the appellant to be imprisoned for a period of six weeks. That sentence is suspended upon condition that the appellant enter into a bond in his own recognisance in the sum of $100 for a period of 12 months. The terms and conditions of that bond are as follows:
1.     That he be of good behaviour, and comply with all of the conditions of this bond.
2.     That he be under the supervision of a Community Corrections officer for a period of 12 months and obey the lawful directions given to him by the Community Corrections officer to whom he is assigned for the purposes of supervision which will include (although it is not limited to) the following conditions:
(a)That he obey directions as to the consumption of alcohol and illicit substances and undertake drug and/or alcohol counselling as directed.
(b)That he attend for psychiatric and/or psychological assessment and/or treatment as directed by his Community Corrections officer which will also include attendances at Nunkinwarrin Yunti Aboriginal Health Program for management of his medical needs.
(c)That he attend such life skills courses and programs as may be considered appropriate by his Community Corrections officer.
(d)That he be assisted by a mentor as may be directed by his Community Corrections officer.
3.     That he report, within two working days of having signed this bond, at the offices of the Department for Correctional Services at 13 Gillingham Road, Elizabeth.