Paul Palmer v Daniel Fisher

[2006] ACTSC 118

PAUL PALMER v DANIEL FISHER  [2006] ACTSC 118 (21 November 2006)

APPEAL – Magistrate’s sentence – custodial sentence for assault of fellow remandee.
FRESH EVIDENCE – Evidence of mental illness – evidence not available to Magistrate – evidence would have affected sentencing discretion.

Periodic Detention Act 1995, s 29, s 31
Crimes Sentencing Act 2005

Browne v R [2006] ACTCA 15

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 18 of 2006

Judge: Connolly J       
Supreme Court of the ACT
Date: 21 November 2006

IN THE SUPREME COURT OF THE       )
  )          No. SCA 18 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PAUL PALMER

Appellant

AND: DANIEL FISHER

Respondent

ORDER

Judge:   Connolly J

Date:   21 November 2006

Place:   Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed.

1. the sentence imposed on 27 March 2006 of 20 months be set aside and in lieu thereof, the prisoner be sentenced to 3 months imprisonment, commencing on 27 March 2006.

1. the earlier sentence of 18 months periodic detention, which has by reason of s 29 of the Periodic Detention Act 1995 become a sentence of full-time imprisonment, be suspended from 21 November 2006, pursuant to s 32 of the Act.

1. the prisoner be released, subject to a recognizance to be of good behaviour for 8 months with the following conditions:

-the core conditions pursuant to Crimes (Sentencing) Act 2005;

-submit to supervision of ACT Corrective Services in relation to drug and alcohol programs;

-submit to urinalysis as directed;

-any other directions considered appropriate by ACT Corrective Services.

1. This is an appeal from a sentencing decision of the Magistrates Court.  I delivered oral reasons on 21 November 2006 that are the basis for these written reasons, which I have expanded upon.

1. Mr Palmer (the appellant) was sentenced by Magistrate Burns on 27 March 2006 in relation to his plea of guilty to an assault on a fellow remandee that occurred at the Belconnen Remand Centre.  There was some material before his Honour suggesting that the appellant was “not on his medication” at the time of the offence, but that was not gone into in any detail and his Honour formed the view as he was entitled to form on the basis of the material then before him, that it simply related to the appellant’s previous use of amphetamines and his coming off amphetamines during the period that he was in custody in the remand centre.

1. His Honour took the view that an assault by one detainee on another in the remand centre was a serious matter, which indeed it is, and accordingly, and without expressly referring to but by implication referring to appellate authority, imposed a substantial period of imprisonment in relation to that offence.  He imposed, in fact, 20 months imprisonment.  That, it seems to me, is entirely within range for an unprovoked assault by one remandee on another, absent any additional information and given that the appellant has a substantial criminal record for offences of violence. 

1. However, earlier this year the appellant’s solicitor sought leave to appeal out of time in relation to this matter and that was granted on the basis that there appeared the possibility at that stage that there was significant medical information that ought to have been before the learned Magistrate but was not.  In September I granted the appellant leave to appeal out of time and additional material was then provided.  On 28 September, on the basis of the material that was then provided, I ordered a forensic mental health report in relation to the appellant. 

1. The Court has been greatly assisted by a report of Mr Baker, a psychologist with the ACT Forensic Mental Health Service, that was provided on 10 November 2006 and at the directions hearing on 15 November it was provided to counsel for the Crown and counsel for the appellant.  I have had the opportunity to read that report before this morning and clearly so have both counsel.  I was told when I came on the Bench this afternoon that it was the view of both counsel, and properly so, that this report did raise significant new information and ought to justify the somewhat extraordinary process in this Court of upholding appeal on sentence and admitting fresh evidence well after the event. 

1. The grounds for the admission of fresh evidence on an appeal on sentence is set out in this jurisdiction, at least most recently, in the case of Browne v R [2006] ACTCA 15 where the Court of Appeal really restated the law that the discretion to admit fresh evidence should only be exercised when the appellate court is satisfied that the fresh evidence would have produced a different result.

1. The information in Mr Baker’s report shows clearly that the appellant has had some fairly clear and frank long-term psychiatric illness.  It shows that that was brought to the attention of staff at the remand centre.  It shows on page 3 and page 4 that the appellant was, at around the time of this assault, expressing concern to remand centre staff that his health was such that he was experiencing visions of what he described as black figures and that he sought medical assistance in relation to that.  The remand centre staff acted entirely appropriately, it seems to me, in ensuring that he was provided with medical attention.  Indeed, there are notes on 8 August 2005, the day of the offence for which he was convicted, that indicate that active consideration was being given to the prescription of an anti-psychotic agent to deal with this issue. 

1. I should say on the morning of the date this assault occurred there is a note to show that there had been some threat of violence a couple of days earlier and that the medical advisors, in fact, faxed a note to the remand centre to ensure that he received appropriate anti-psychotic medication.  The medical staff and the remand centre staff cannot be criticised for some delays there.  It seems to me that everybody acted properly.  The effect of that is, on Dr Baker’s report and it has contemporaneous medical notes to support this, that when this assault occurred on the afternoon of 8 August 2005 the appellant’s mental health was receiving active consideration.

1. A prescription for anti-psychotic medication had been provided and was being forwarded through the remand centre to provide him with medication.  In fact, the appellant himself had brought to the attention of the remand centre staff and his medical advisors that he was unwell and that that unwellness, that mental health problem, manifested itself in visions and the possibility of violence.  It seems to me that had that material been before the learned Magistrate he would clearly not have taken the view that this was an appropriate case for a general deterrence sentence.  It seems to me that he would have clearly taken the view that while such conduct must be condemned, it was explicable by reasons of a frank and diagnosed and, shortly thereafter, treated medical illness.

1. The consequence of the sentence that was imposed of 20 months imprisonment was, under s 29 of the Periodic Detention Act 1995 (the Act) as it then stood, that an earlier sentence of 18 months imprisonment to be served by way of periodic detention that had been imposed by Magistrate Somes on 19 December 2005 was cancelled and became, pursuant to s 29 and s 31 of the Act, a sentence of full-time custody. The effect of that is that the appellant faced imprisonment for a long period indeed.

1. An issue arose in discussion with counsel as to how I could deal with that consequence and after consideration of the Act, an act no longer in force but which is the act upon which the appellant was sentenced and falls, in effect, to be re-sentenced, it does appear that there is a discretion to modify the otherwise harsh consequences that can flow from automatic cancellation of periodic detention by reason of the imposition of a period of imprisonment of greater than one month.

1. It seems to me that in the exercise of the re-sentencing discretion, if the material that is now available to me by way of the report of Mr Baker had been available to the learned Magistrate, he would have, even in the face of the appellant’s prior history, imposed a significantly lower sentence and, it seems to me, that a sentence of three months imprisonment would have been entirely appropriate.  It is necessary to record a sentence of some significance, given that it was an offence of violence, but it needs to be significantly modified by reason of the fact that the appellant was clearly unwell at the time and it would be unjust and not in accordance with principle to impose, in effect, a deterrent sentence on a person who was at the time of the conduct mentally unwell. 

1. The three month sentence would commence from 27 March 2006, the consequence of that is that the earlier periodic detention will be cancelled and be transferred into a period of full-time custody.  I must be mindful of the fact that it is now 21 November 2006.  The appellant has been in full-time custody from at least 20 March.

1. Section 32 of the Act, as it then stood, does provide a discretion that where a person is required to serve a term of imprisonment by reason of the automatic cancellation of a periodic detention order, a court may direct the person be released forthwith or after serving a specified part of the term of imprisonment upon, in effect, a good behaviour bond. 

1. It seems to me that given the length of time that the appellant has served in custody, and given the information that is now before this Court in relation to his mental health, the appropriate disposition of this matter is, in addition to the order that the head sentence for the assault in the remand centre, be three months imprisonment, the consequence of that is that the earlier periodic detention order is cancelled, and I would direct that the appellant be released today, that is, on 21 November 2006, having served some eight months of that cancelled periodic detention order upon him giving security by way of a recognizance to be of good behaviour for a period of a further eight months. 

1. The period of periodic detention that was automatically turned into full-time custody will be transferred into full-time custody to today and then a subsequent good behaviour bond for a period of 8 months from today.  The conditions of the bond would be the automatic conditions of the good behaviour bond pursuant to the Crimes Sentencing Act 2005 but additionally, in effect, the recommendations of Mr Baker.

1. So the appellant will be required to comply with any directions of the Director of Adult Corrective Services in relation to treatment for substance dependence and alcohol abuse, that he will be required to submit to any periodic drug testing by way of urinalysis, and that he submit to any other directions from the Director of Adult Corrective Services.  Mr Baker makes certain recommendations in relation to mental health treatment, and it seems to me that it is inappropriate in a formal criminal order to require mental health treatment to be the subject of a good behaviour bond, but it would certainly be in the appellant’s interests to seek any additional treatment.

1. The effect of that is that this appeal has been successful and the appellant will be released forthwith.  He will have, in effect, served out the consequence of those, both the assault in the remand centre sentence and the earlier sentence that was otherwise to be served by way of periodic detention.  He will, however, be subject to an ordinary good behaviour bond for the next eight months.  That, of course, has consequences should he re-offend, and one of the conditions of that good behaviour bond will be that he will be required to undertake any drug rehabilitation programs, and I see from what Mr Baker’s had to say that he has displayed a level of awareness of the need for that over the last few months.

1. I also simply make the observation that this is a case where the appellate system has clearly worked.  And some commendation should be given to the appellant’s legal advisors who, in the face of what was otherwise an appropriate sentence, were able to pick up that there had been, by reason of inadvertence, an injustice that information that ought to have been put before a sentencing magistrate had not been put before him. 

1. When the matter was fully inquired into, it appeared that, although everything worked as it should have, the appellant’s health problems were brought to the attention of the remand centre staff, who brought it to the attention of the medical staff that served the remand centre.  Treatment was eventually provided and records were kept of all of that.  That significant information had simply not been put before the sentencing magistrate.  This is a case where, although his Honour, on the information before him, did not err, an injustice had occurred and can now be corrected by reason of the appeal process. 

1. I am not minded to make an order for costs in this matter.  It seems to me that again, no criticism can be made of the prosecution in this matter.  And again, I commend the

   
   

   legal team for the appellant.  I should also say the Crown has acted impeccably in this matter when the new information was brought to the Crown’s attention.  It is the way the system ought to work. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date:     21 November 2006

Counsel for the Appellant:  Ms J Saunders

Solicitor for the Appellant:  Mamdouh Elmaraazey

Counsel for the Respondent:  Ms M Caffery 

Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  21 November 2006

Date of judgment:  21 November 2006