Marshall v Police

MARSHALL v POLICE
[1999] SASC 397

Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged on complaint with the unlawful possession on 8th November 1998 of an air compressor and four motor car tyres and rims contrary to s41(1) of the Summary Offences Act 1953. He denied the charge but was found guilty by a learned Magistrate on 6th July 1999 after a trial. He was convicted and sentenced to imprisonment for five months.
The learned Magistrate was informed that on 24th March 1998 the appellant had been convicted of offences of fraudulently obtaining prescription drugs by forging and uttering a prescription and was sentenced to imprisonment for twelve months which sentence was suspended upon the appellant entering into a bond, the term of which was eighteen months. The condition of the bond was that he be of good behaviour and that he perform 160 hours of community service.
The learned Magistrate estreated the bond and revoked the suspension of the sentence upon the application of the prosecutor with the consequence that the appellant is to serve the sentence which was suspended. It was alleged that the appellant had not undertaken all of the hours of community service. The learned Magistrate cancelled the balance of the service obligation. He ordered that the sentence of five months be served cumulatively upon the sentence of imprisonment for twelve months resulting in a total head sentence of seventeen months. He fixed a non-parole period of three months. The appellant appeals against the sentence.
The first ground of appeal is that the learned Magistrate sentenced the appellant on an erroneous factual basis. When the appellant appeared at the Magistrates Court at Port Adelaide on 24th March 1998, he was charged with four counts of knowingly, by falsely representing that he was the person named on a Medicare card and entitled to use that card, obtaining a prescription drug. He was not charged with forgery or uttering. On that occasion a learned Magistrate imposed one penalty. The appellant was sentenced to imprisonment for four months which sentence was suspended upon his entering into a bond to be of good behaviour. The term of the bond was six months and had expired before the commission of the offence of unlawful possession. On this same occasion, the appellant was also charged with eight counts of obtaining a prescription by making a false representation, contrary to s30(2) of the Controlled Substances Act 1984. He was sentenced to imprisonment for eight months which sentence was suspended upon his entering into a bond to be of good behaviour for a period of eighteen months and to undertake 160 hours of community service. It may be seen that the information about these matters given to the learned Magistrate was incorrect and the basis in sentencing was consequently incorrect. The only sentence of imprisonment activated by the revoking of the suspension was eight months and not twelve months. The appellant had not been convicted of counts of forgery and uttering.
Before considering the consequence of this error, it is appropriate to mention the circumstances of the offence of unlawful possession and of the appellant.
On the relevant day, the appellant had in his possession the air compressor, tyres and rims. They belonged to a Mr Pimlott and had been stolen from him at Nairne on 8th May 1998. Police officers went to the appellant’s house at Mount Barker on 8th November 1998 regarding another matter. They entered the property and conducted a search. They saw the stolen property in a shed at the property. The appellant declined to say from whom he had obtained those items of property. Later at the police station he told the police that he had acquired them from a man called Hess. At the trial the appellant denied that he had told the police about Hess. In his evidence, he said that he had been requested to store the items by a neighbour, Ms Tillett, who was a friend of Hess. This explanation was rejected by the learned Magistrate. The items of property were new. One of the police officers gave evidence that he had the requisite suspicion that the property had been stolen or acquired illegally. Ms Tillett gave evidence but she was disbelieved by the learned Magistrate.
The appellant is aged 54 years and is a single man. He is disabled due to a back condition and has received a Disability Support Pension since 1982. He lived with a woman for about five years at Mount Barker until 1996. He had worked as a crash repairer. He was involved in a motor vehicle accident in the 1970’s and suffered a severe back injury requiring fusion of part of the spine. He suffers constant pain and takes prescribed medication daily. The drug is known as MS Contin and the dosage is 1040 mg per day. The drug is a morphine derivative. Due to the nature of the drug and the high dosage, the appellant is under the supervision of Dr Buttfield, a medical practitioner who is a specialist physician at the Warinilla Clinic. The appellant lives alone in isolated circumstances at Mount Barker.
It is sufficient for present purposes to mention only some features of the background of the appellant. When a young person, his family was dysfunctional. An older brother was in conflict with the law and went to prison. He found his mother dead from asphyxiation in 1974 and his father died suddenly in 1979. He has been married three times and has two adult children. He left school at the age of 13 years. He was detained in a youth home from the age of 16 years to 18 years after committing a crime with his brother. As an adult, he had a reasonably constant employment history. It seems that illicit drug and alcohol abuse have not been a significant part of his life.
In 1989 the appellant received about $275,000 by way of damages following his motor vehicle accident. All of this money has been spent including in consequence of a matrimonial settlement with his third wife.
The appellant has a history of prior offending since 1962. Apart from the offences already mentioned, he has convictions for larceny in 1996, unlawful possession in 1965, 1990, 1995 and 1996, uttering a forged prescription in 1985 and breaking, entering and larceny in 1964 and 1996. On some occasions he was sentenced to imprisonment. A report from a probation officer prepared in March 1998 contains the comment that the appellant had always been co-operative with supervision and that he had developed a particularly supportive relationship with another probation officer. A copy of that report was before the learned Magistrate.
Evidence of Dr Buttfield was placed before me in the form of his affidavit of 6th August 1999. He confirmed the prescribed drug and dosage being taken by the appellant. According to him, the back condition of the appellant cannot be corrected by surgery and can only be treated by large doses of analgesics. The appellant is allergic to Methadone which could have otherwise been used to relieve his pain. Even if that was not so, he would require hospitalisation for the management of a change from MS Contin to Methadone. According to Dr Buttfield, there is no other treatment which would be suitable and safe in a prison environment. There are suppositories and patches for administering other drugs which would require very large dosages. For example, the appellant would need 100 suppositories each day.
In response to an enquiry from the appellant’s solicitors, Dr Krieg, the Clinical Director of the Prison Medical Services, having been acquainted with the condition of the appellant and the drug taken by him, expressed the opinion that there are significant problems administering opioid analgesia in the prison system. It must be given four times a day under supervision of health staff in a health clinic. The Prison Health Service does not have adequate staff for that purpose. Also, there is a significant safety risk for prisoners taking such drugs. If other prisoners become aware of the drug being taken by the appellant, pressure will be applied, including coercion, to obtain the drugs from him. He could be forced to regurgitate any drug taken. She regards the appellant as being at genuine risk in prison. For these reasons the Prison Health Service only allows short-term opioid analgesics as part of a withdrawal regime. Of course, the appellant requires the drug as treatment for his back condition not to assist in withdrawal from some other drug.
In his remarks on sentencing the learned Magistrate acknowledged that the appellant suffered major pain and that it was very important for his well being that the treatment not be disrupted. He said that with appropriate information being passed on to the prison medical authorities, it should be possible to continue the treatment required in prison. Of course, he did not have the report from Dr Krieg before him, but nonetheless there was no basis for the conclusion that the condition of the appellant could be managed in prison other than assumption.
The next matter is that the learned Magistrate was misinformed about the position with regard to community service. As I understand the position, the appellant had undertaken all of the hours of community service by the time he came to be sentenced. There was no such obligation outstanding. However, it seems that the learned Magistrate had been informed that the appellant had not been able to complete all of the community service through no fault of his own. This ground of appeal is established.
The second ground of appeal is, in effect, that the learned Magistrate erred in finding that the appellant’s back condition could be adequately managed in prison. As has been mentioned, the learned Magistrate made an assumption to that effect. Although the opinions of Dr Buttfield and Dr Krieg were not before the learned Magistrate, they may be considered on this appeal. They relate to the condition of the appellant at the time of sentencing even though not known to the learned Magistrate: R v Smith (1987) 44 SASR 587. They may be received upon the hearing of an appeal of this nature in accordance with the well established practice of the Court: McDougall v Betts (1979) 21 SASR 424. If any further basis is required, it is to be found in s42(4) of the Magistrates Court Act 1991 which permits the reception of fresh evidence on appeal. This ground of appeal is also made out.
The third ground of appeal is that the learned Magistrate erred in failing to give adequate consideration to the exercise of the discretion under s58(3), s58(4)(a), s38(2a) and s38(2c) of the Criminal Law (Sentencing) Act 1988 (“the Act”).
The learned Magistrate clearly regarded the unlawful possession offence as a serious offence. He said that it involved valuable property and a custodial sentence was required. He concluded that there were no proper grounds upon which the failure to comply with the bond should be excused under s58(3) of the Act. S58(4) of the Act provides that where the Court revokes the supervision of a sentence of imprisonment, it may, if it considers that there are special circumstances justifying it in doing so, reduce the term of the suspended sentence. As to this matter, the learned Magistrate said:
“You have substantially carried out your community service work. I accept that there have been administrative difficulties relating to you finishing the 160 hours [community service]. I have regard to your health and the difficulties in managing it. I take the view that with appropriate information being passed on to the prison medical authorities it should be possible to continue the treatment regime for you. There are not special circumstances.”
As has been mentioned, if the learned Magistrate had been fully informed about the condition of the appellant and the likelihood that he could not be adequately cared for in prison, he may well have concluded that special circumstances do exist.
S38(2a) of the Act enables the Court, when the total head sentence is more than three months but less than twelve months, to direct that a specified period be served in prison and that the balance of the sentence be suspended upon the offender entering into a bond. The learned Magistrate made no reference to this section. It had no application in the exercise of his discretion because the total head sentence fixed by him exceeded twelve months.
S38 of the Act contains the power to suspend a sentence of imprisonment. S38(2c) provides that when a sentence of imprisonment is suspended special conditions, including home detention, may be imposed in circumstances of ill health, disability or frailty which would result in it being unduly harsh for the offender to serve in prison. The learned Magistrate did not exercise the discretion under this section because he had decided against suspending the sentence of imprisonment which he imposed.
For reasons to be expressed shortly, I do not think the learned Magistrate erred in declining to exercise the discretion pursuant to s58(3) but I do think that there were special circumstances pursuant to s58(4) which justified the exercise of the discretion to reduce the sentence of imprisonment for eight months. It is unnecessary to consider whether the discretion under s38(2a) or s38(2c) should have been exercised in favour of the appellant.
This third ground of appeal is made out in the respect mentioned.
The consequence of accepting that the appellant has made good the grounds of appeal as indicated is that the sentencing discretion must be exercised afresh.
It must be recognized that reaching a just sentence for the appellant in all the circumstances is a matter of considerable difficulty.
The starting point is consideration of the appellant’s health and the opinions of Dr Buttfield and Dr Krieg. In Smith King CJ, with whom the other members of the Court agreed, said at p589:
“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

In the present case there is the additional consideration of the inability of the Prison Health Service to administer medication to the appellant under supervision, and the danger to the appellant should it become known that he has taken an opioid drug. There are matters which must weigh heavily in deciding whether to send the appellant to prison. Furthermore, if for some reason the drug regime is not followed or the appellant is unable to retain the drug in his system having been forced to disgorge it, he will suffer a much greater burden than other offenders due to the severe pain which he will have to endure.

The appellant is not to receive any benefit from a plea of guilty. There is no evidence to suggest genuine remorse and contrition. The learned Magistrate was correct in taking a serious view of the offence of unlawful possession, but it may be said that it is not among the most serious of crimes. The maximum penalty is a fine of $8,000 or imprisonment for two years. There is nothing about the circumstances of the offence which reflects favourably upon the appellant. He gave a false explanation to the police for his possession of the goods and he gave a different, but also false, explanation to the learned Magistrate. Given his past record, the sentence of imprisonment for five months is appropriate but for the difficulties which he would encounter in prison.
As has been mentioned, the appellant has benefited in the past from supervision. He completed the 160 hours of community service. These are positive indicators in favour of a non-custodial sentence. The appellant now leads a lonely and isolated life in Mount Barker and suffers greatly from his back condition despite the extensive drug regime. These matters justify a non-custodial sentence provided that such a sentence can amount to adequate punishment in the circumstances.
Before considering an appropriate sentence, it is necessary to consider the revocation of the suspended sentence because the sentence for the offence of unlawful possession cannot be considered in isolation.
As has been mentioned, there was only one bond extant at the time of the breaching offence. The appellant had in fact completed all of the hours of community service. The learned Magistrate took the view that he could not excuse the breach of the bonds pursuant to s58(3) “because of the nature of the offending”. It would appear that he had concluded that personal circumstances of the offender could not amount to “proper grounds” under the section. If that is so, he appears to have followed the approach in R v Buckman (1987) 47 SASR 303, see King CJ at p304, Jacobs J at p307 and Bollen J at p314. All members of the Court expressed the view that “proper grounds for excusing the breach” look to the nature of the breach and the circumstances in which it was committed and not the personal circumstances of the offender.
Since the coming into operation of the Criminal Law (Sentencing) Act, there have been decisions of Judges of this Court which differ from the approach in Buckman even though the statutory provisions considered in Buckman and s58(3) are the same. In Johnson v Police (Debelle J, unreported, 22nd June 1995, Jd No S5135) expressed the view that in Buckman, Jacobs J was not purporting to limit the operation of s58(3) or to state that “proper grounds” should be related or to the nature of the breaching offence. He went on to say at pp4-5:
“The words of sub-s(3) are not so limited. They give the court the discretion not to revoke the supervision whenever the court is satisfied that proper grounds upon which the failure should be excused exist.
Thus, if a probationer is able to demonstrate that there are special or exceptional circumstances which pertain either to himself personally or otherwise relate to the breach of the bond, it is appropriate to have regard to them in determining whether the suspended sentence should be revoked. Plainly that discretion will not be lightly exercised. To do so would be manifestly inconsistent with the legislative policy.”

However, he went on to say that there must be special or exceptional circumstances which should excuse the failure to comply with the bond which would impose a different fetter upon the exercise of the discretion. Debelle J expressed a similar view in the Court of Criminal Appeal in Reynolds v R (unreported, 27th October 1995, Jd No S5331). Nyland J and I were the other members of the Court but we did not consider it necessary to express any view about the matter. In Manning v Police (1993) 59 SASR 427, Perry J concluded that personal circumstances could contribute to proper grounds pursuant to s58(3). Olsson J took a similar view in Police v Summers (unreported, 10th November 1998, Jd No S6950).

I decline to express a view about the matter. Buckman is a decision of the Full Court and is binding upon all judges and magistrates who are called upon to consider the discretion in s58(3), and is binding in the present circumstances. Until the Full Court says otherwise, I must follow that approach. There is nothing about the offence of unlawful possession or the circumstances in which it was committed by the appellant which could activate the discretion in s58(3).

I now turn to s58(4). In Buckman the Court also considered the special circumstances required to activate the discretion to reduce the term of the suspended sentence. King CJ said at p304:
“It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper.”

Jacobs J expressed his view as follows at p307:

“One of those options is to reduce the term of the suspended sentence if there are ‘special circumstances’ for so doing but that in my opinion is an entirely different question from that which the court has to address under subs (5) in asking itself whether there are ‘proper grounds’ to excuse the breach. The court has already decided that there are no such proper grounds before it comes to consider the special circumstances, and the structure of the legislation therefore requires the two concepts to be distinguished. Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment - ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.”

In the present case I think there are special circumstances which justify the exercise of the discretion to reduce the term of imprisonment. If the circumstances now revealed by Dr Buttfield and Dr Krieg had been known to the Magistrate who imposed the sentence which was suspended, it is likely that some other sentencing strategy would have been adopted. A suspended sentence of imprisonment is nonetheless a sentence of imprisonment which may have to be served. If it was known that the appellant could not be adequately cared for in prison and that he would be in danger whilst in prison, it is to be expected that a sentence of imprisonment would not have been imposed. Whilst it may be said that the present circumstances of the appellant probably existed when the suspended sentence was imposed, they were not known to the Magistrate. It seems that he has been taking the analgesic drug for some years. The full impact of a sentence of imprisonment upon the appellant is now known. These very unusual circumstances of the appellant do amount to special circumstances under s58(4)(a). The present position is as stated by the two doctors. I do not understand either King CJ or Jacobs J in Buckman to have excluded any circumstances which have arisen since the suspended sentence was passed. It may be seen from the passages of their judgments cited that, in that respect, neither of them speak in absolute terms. As I have said, this is a very unusual case. In my view, the sentence of eight months should be reduced.
What then is a satisfactory sentencing package. The appellant did undertake the total number of hours of community service under the bond and so he has been punished to some extent. He has a significant record of past offending but it is not particularly serious. There is always the danger that if leniency is again extended to him, he will regard his back condition and its consequences as some sort of insurance against having to serve a sentence of imprisonment. He should, however, be aware that ill health cannot be an immunity from just punishment. If he continues to offend, he will have to go to prison.
The resolution of this difficult sentencing problem must involve punishment and supervision. A fine is not appropriate. I do not regard a sentence of imprisonment as appropriate due to the matters which have been mentioned.
I allow the appeal and set aside the sentence imposed by the learned Magistrate. The sentence on the unlawful possession charge is that the appellant undertake 200 hours of community service within a period of six months. I note that pursuant to s47 of the Act, the appellant will be assigned to a community service officer and that he must obey the lawful directions of that officer. As in the past, this form of supervision is likely to assist the appellant in his rehabilitation and in organising his life.
Pursuant to s58(4)(a), I reduce the sentence of imprisonment of eight months imposed on 24th March 1999 to a term to expire at the rising of the Court, the appellant being in Court today having surrendered his bail which was granted on the day he was sentenced upon the appeal being instituted.

[1999] SASC 397

17 September 1999