R v Ashton
[2002] NSWCCA 498
•13 December 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Ashton [2002] NSWCCA 498
FILE NUMBER(S):
60610/99
HEARING DATE(S): 11/12/2002
JUDGMENT DATE: 13/12/2002
PARTIES:
Regina v Scott Richard Ashton
JUDGMENT OF: Howie J Buddin J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/21/0126
LOWER COURT JUDICIAL OFFICER: Nield DCJ
COUNSEL:
LMB Lamprati - Crown
R Jankowski - Applicant
SOLICITORS:
SE O'Connor - Crown
Leigh Johnson, Lawyers - Applicant
CATCHWORDS:
Criminal Practice and Procedure - Appeal - Fresh evidence admitted on applicant's mental state at time of sentence - extensive delay in hearing of appeal - sentence not served.
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - s 23
Justices Act 1902 - s 51A
Crimes (Administration of Sentences) Act 1999- ss 92, 163
Criminal Appeal Act 1912
DECISION:
See para. 45.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60610/99
HOWIE J
BUDDIN JFRIDAY 13 DECEMBER 2002
R v Scott Richard ASHTON
Judgment
HOWIE J: On 15 September 1999 the applicant was sentenced by his Honour Judge Nield to imprisonment for two years made up of a minimum term of 18 months and an additional term of 6 months. His Honour ordered that the sentence be served by way of periodic detention to commence on 30 September 1999. The applicant has not served one day of that sentence. The prison records reveal that he has been treated as “away without leave” for the entirety of his sentence. This is despite the fact that the applicant was not granted bail pending the hearing of this appeal until 18 April 2002 even though the application for leave to appeal was filed on 14 October 1999. This situation is made even more extraordinary when counsel appearing for the applicant has conceded that the sentence imposed by Judge Nield was not, on the material then before his Honour, excessive or otherwise erroneous.
Notwithstanding these matters, at the conclusion of the hearing of the appeal I came to the view that the application for leave should be granted and the appeal allowed. I proposed that the sentence imposed by Judge Nield be quashed and in lieu that the applicant be sentenced to imprisonment for 18 months but that the sentence be suspended on the applicant entering into a bond for 18 months subject to certain conditions. As the applicant was not present at the hearing of the appeal, the matter was stood over for sentence and his bail continued until today. The following are the reasons why I came to the view that the appeal should be determined in the manner that I have proposed.
On 25 March 1999 the applicant pleaded guilty in the Local Court to a charge of supplying cannabis contrary to s 23 of the Drug Misuse and Trafficking Act. That offence carried a maximum penalty of 10 years imprisonment. The applicant was committed to the District Court for sentence under the provisions of s 51A of the Justices Act and adhered to his plea before Judge Nield.
For the purposes of the present appeal and having regard to the basis upon which this Court is asked to intervene, the facts can be very briefly stated. On 17 April 1999 police attended at premises in North Ryde from which the applicant operated an excavation business. A search of the premises revealed that in one room there were 114 cannabis plants each about one foot in height. The plants were being grown using hydroponic equipment including lamps, heaters, gas cylinders and water containers. In another room there were 41 cannabis plants each about two feet in height being grown in a similar manner. The applicant admitted his involvement in the cultivation of these plants. He told police that in January of that year a person, whom he would not name, brought the plants to his premises. He assisted this person in cultivating those plants and growing the 114 smaller plants from cuttings taken from the original plants. The applicant stated that he was growing the plants so that they could be sold by this person and with his share of the proceeds the applicant could pay off some of his business debts.
The applicant gave evidence before the sentencing judge and confirmed the version that he had given to police.
The applicant's father also gave evidence. He and his wife had adopted the applicant when he was about five weeks old. Part of his evidence was as follows:
Q. Were you aware of his business problems in the beginning of this year?
A. I think that he's had some problems of various descriptions for quite a long time.
Q. Do you want to tell us what they are?
A. Well, they’re problems I think mainly related to stress, family connections, some of them go back a number of years to something that happened to him and his former younger brother many years ago.
Q. I think perhaps you better tell his Honour about that?
A. Sorry?
Q. Would you like to tell his Honour what you’re talking about?
A. Yes, they - Scott and his younger brother, who was not adopted, were on their way to school and they were hit by a car and Scott, afterwards, for many years, thought that my wife and I held him responsible for it because after - subsequent the accident, we took him to psychiatrists and they said apart from his being almost verging on hyperactive, he was described as superactive, which accounted for a lot of his physical activity, they said that he needed to go on a course of Ritalin and which we did for about a year and my wife and I felt that he was very subject to stress after that. If he had stress in any way he would react usually in a physically physical way and it was only some perhaps five years ago that he eventually he was persuaded by some other people that perhaps we didn't hold him responsible for that particular happening all those years ago. He's, I think that more or less covers that sort of area which has been somewhat persistent over the years.
Q. What do you say about your son's general character?
A. He's very active physically and sometimes mentally. He sometimes seems to be able to absorb thoughts and progressions of thoughts very quickly but also very much in the nature of physical activity, he wants to have sort of not any restraints around him, which is expressed physically, whether it's in work or in play.
Q. Just finally, if your son continues with his business and has problems in the future, what support, if any, can you and your family offer him if he gets into strife on another occasion?
A. Well, I think that we feel that we should look at is progressive business activities more closely to offer him more advice. I think he's reluctant to accept advice on many things, as I think I would have been at the same age, in the same situation, but I think it is a case where he has to accept that we can possibly help him but that is something for the immediate future.
There was also in evidence before his Honour a pre-sentence report which contained the following:
Mr. Ashton, aged 29 years, was adopted as an infant and raised in a comfortable, caring family environment. His childhood was overshadowed however, by the death of his younger brother who, at aged five years, was struck down and killed in an automobile accident as the two boys were on their way to school. His mother believes that her son still has considerable unresolved grief for the loss of his brother and holds himself responsible. In recent years Mr. Ashton located his biological parents however he has not actively pursued this relationship.
In the final part of the report the probation officer indicated that the applicant was fearful of a prison sentence. Although the applicant had been assessed as suitable for periodic detention, he declined to sign the undertaking to comply with the applicable conditions. During the course of his evidence the applicant was asked about this refusal and the following questions and answers a recorded in the transcript:
Q. Why did you not sign it?
A. I didn't understand, after speaking with you outside, I understand that it was not saying that I’m going to gaol but the way it was worded was like I was going to gaol and I didn't want to sign anything saying I was going to gaol.
Q. If his Honour, thought that was an appropriate sentence, what's your attitude in relation to signing the undertaking now?
A. Well at his Honour's mercy.
Before the sentencing judge, the Crown submitted that there had to be a sentence of imprisonment imposed upon the applicant in accordance with decisions of this Court as to the manner in which such an offence should be punished. The applicant's legal representative submitted that it would be appropriate to order community service work or, in the alternative, imprisonment to be served by periodic detention. His Honour stated:
Having regard to the relatively small number of plants, and I say "relatively small" because this Court of deals with people who grow a few plants to many hundreds of plants, and because of the prisoner's character and reputation, which has now been markedly sullied, I think that a sentence of imprisonment to be served by periodic detention would be appropriate.
His honour then imposed the sentence that I have indicated at the outset of this judgment.
The basis of the application made to this Court is what is said to be fresh evidence relating to the applicant's psychiatric state at the time of sentence. In this regard reliance is placed upon the decisions of this Court in Bailey (1988) 35 A Crim R 458 and R v Ehrenberg (NSWCCA, unreported, 14 December 1990). There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. In Bailey the material related to the applicant having been diagnosed with the AIDS virus, a fact that was unknown at the date of sentence. In Ehrenberg it was the birth of a deformed child to the applicant as a result of complications of her pregnancy. In both cases the fresh material indicated that prison would impact more harshly upon the applicant than was thought to be the case when the applicant was sentenced.
However, this Court must be careful to maintain a principled approach in dealing with appeals before it. The Court should be scrupulous to ensure that there is a proper basis for receiving evidence of events that occurred after sentence where there is no error established in the sentence imposed. In Ehrenberg, the Court emphasised the special and unusual circumstances that would permit such evidence to be received and acted upon in order to reduce an otherwise appropriate sentence. Loveday J, with whom Gleeson CJ agreed, stated:
It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177).
Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant.
In the present case the Crown submits that the evidence does not provide the basis upon which this Court could intervene and the matter is one properly left to the Parole Board to consider under its powers under s 163 of the Crimes (Administration of Sentences) Act to cancel the order for periodic detention on compassionate grounds or to the Commissioner for Corrective Services who may exercise powers under s 92 of that Act to grant the applicant exemptions from complying with the order.
The fresh evidence relied upon is found substantially in psychiatric reports which have been annexed to an affidavit made by the applicant's father and which is dated 9 December 2002. The Crown objected to the reception of the evidence as to its form because it would be deprived of the opportunity of cross-examining the psychiatrist. However, the Court allowed the evidence to be received but on the understanding that the psychiatrist had not been called, his evidence was untested by the Crown and some of his opinions may, therefore, be given little, if any, weight. However, many of the Crown’s concerns about the evidence dissipated when counsel for the applicant stated that he was not relying upon any suggestion that at the date of sentence the applicant was suffering from a brain injury.
A further affidavit was tendered at the hearing of the application annexed to which was a report of a psychologist. The Crown raised the same objection to this material but accepted its reception on the same understanding.
As I have indicated, the applicant was sentenced on 15 September 1999. On 24 December 1999 he attended upon a psychologist, Dr Marlow. The report indicates that following the imposition of the sentence the applicant went to Greece for 3 months. He saw the psychiatrist again on 4 and 7 January 2000. The report contains a good deal of narrative material presumably obtained from the applicant as to events preceding the sentencing for this matter. Of particular relevance is the applicant’s account of his incarceration in 1994 due to his failure to comply with orders relating to the break-up of his marriage. The psychologist reports that, when relating these facts, the applicant was tearful and that it appeared to be painful for him to recall them.
Dr Marlow reports that the applicant felt that prison would be intolerable for him and that his life was not worth living. He believed that he would be raped, assaulted and humiliated in prison. He said that he went to Greece because he became depressed, confused and desperate. The applicant complained of flashbacks to his period in custody, nightmares about police and criminals, and any recall of the events surrounding his incarceration produced anxiety reactions and reduced him to tears. The psychologist noted some psychotic thought processes in that the applicant believed that people could read his mind although this was not of significant influence on his ordinary life.
The psychologist concluded that the applicant appeared to have developed symptoms of post-traumatic stress disorder arising from his incarceration and involvement with police in 1994. Dr Marlow reports that when he last saw the applicant in January 2000 he was still fearful of his incarceration. Dr Marlow believed that, until the question of his sentence could be finalised, the applicant would not receive any significant benefit from psychological treatment. The final paragraph of the report stated:
In conclusion I would like to point out that any further incarceration of Mr Ashton is very likely to have dire consequences for his mental state, and is very likely to trigger a psychotic breakdown. Accordingly from the point of view of preserving Mr Ashton’s mental health, which is already precariously in the balance, it would be highly advisable that there be some way for him to serve his sentence other than by partial incarceration.
That report was dated 21 January 2000. On 20 March 2000, this application was before the Registrar of this Court for mention. The file notes that there was a possibility of fresh evidence. Apparently a direction was made that affidavits be filed by 14 April 2000. The matter was mentioned again on that date and the file note is “difficulty contacting people involved”. The matter was next mentioned before the Registrar on 8 May 2000 and the file note is “needs affidavit from psychiatrist”. The matter was mentioned again on the following dates, 19 June, 10 July, 24 July, and 14 August and the same file note appears for each date, “no appearance by applicant”.
It should not be forgotten that, as the sentence approached its first anniversary, the applicant had not attended at the periodic detention centre and was thus in breach of the sentencing judge’s order, yet no step had been taken to enforce the sentence lawfully imposed upon him. It also should be recalled that In January Dr Marlow had indicated that the applicant’s condition could not be treated until the matter was resolved and at that time the applicant’s mental health was “precariously in the balance”.
Dr Henson, a psychiatrist, first saw the applicant in August 2000. At that time the applicant was depressed with suicidal thoughts and he was fearful of the police and other authorities. The applicant said that he felt insecure, confused, irrational, tense and anxious. He also had angry thoughts with violent ideation. The psychiatrist made a provisional diagnosis that the applicant was suffering from psychosis with paranoid features as well as depression. The applicant did not want to try medication and declined any other treatment. Although he agreed to see the psychiatrist again, the applicant did not make another appointment for 3 months. It appears to me that the applicant’s condition had markedly deteriorated from that described by Dr Marlow.
From further examinations of the applicant on subsequent visits and from what the psychiatrist has been told of the applicant's early history of physical injuries, he formed the opinion that the applicant had probably suffered brain injury, he had “the features of psychosis with paranoid thinking” and that he remained depressed with the risk of suicide. The applicant was described as being unable to care for himself, attend to his own affairs, or instruct his legal representatives. Although the applicant has been prepared to attend on Dr Henson, he had refused any other intervention or treatment.
The applicant continued to see Dr Henson spasmodically and apparently only when he was prepared to do so, but refused treatment. In the meantime there was still no action to enforce the sentence. There were regular mentions of the matter before the Registrar almost monthly throughout 2001. The notes indicate various problems; change of solicitor, an application for legal aid, counsel briefed, psychiatric report to be obtained, “ difficulty in obtaining instructions”. No objection seems to have been raised by the Crown to the fact that the sentence was now reaching its second anniversary yet there was little to suggest that it might in the foreseeable future reach the state of readiness which would allow it to be listed. And not one day of the sentence had been served.
The matter proceeded in the Registrar’s list into April 2002. Apparently only now was there some activity within the Department of Corrective Services to bring the matter before the Parole Board. Coincidently, or so it seems, the matter was to be listed before the Court in a call-over of old matters. There was a mention of the matter on 17 April before the Registrar and there was some discussion as to the applicant’s father carrying on the appeal on behalf of the applicant. The next day the applicant’s father appeared before the Bail Judge in this Court and obtained bail for the applicant in his absence. The applicant signed the bail undertaking but seems to have taken no other action to advance the proceedings in this Court after the application was lodged in October 1999.
By 22 July 2002 the present solicitor appeared on an amicus basis for the applicant before the Registrar and there was a note that there were “mental health issues”. On 23 September 2002, about a week after the third anniversary of the imposition of the sentence, the Crown finally sought a hearing date from the Registrar. On 11 November 2002 the solicitor appearing in the matter filed material with the Registrar and the hearing date was fixed for 11 December. The applicant had never appeared at any hearing after he was sentenced, apparently has never instructed solicitors acting for him and was granted bail on his father’s undertaking that the applicant would comply with his bail conditions and attend the hearing of the application. The applicant failed to appear at the hearing on 11 December.
The applicant’s father gave evidence before the Court that, as well as the trip to Greece in 1999, the applicant had travelled to the USA for three months late last year or early this year. He said that the applicant would refuse to discuss the proceedings in this Court or the outstanding sentence and, whenever these matters were raised by his father, the applicant would become angry and uncontrollable. On the morning of the hearing of this application, the applicant refused to get out of his bed.
In a report dated 6 December 2002, Dr Henson, in answer to specific questions asked of him by counsel appearing for the applicant, reports as follows:
(1) I first saw Mr Ashton on 18th August 2000. I think that he may be suffering from the effects of a head injury sustained in his early twenties. I think that he may be suffering from a psychotic illness affecting his thinking and behaviour in recent years.
(2) Mr Ashton has a fear of detention by the authorities as part of his illness and I am of the opinion that he would be likely to harm or kill himself if detained and that detention would be likely to make his illness worse.
(3) I think that Mr Ashton does understand the concept of a suspended sentence. I think that he understands the meaning of being placed on probation.
(4) I am [ ] not able to say what Mr Ashton's state of mind was prior to my seeing him or at the time of sentencing in 1999, I think that he may have been affected by a head injury since his early twenties and I think that a psychotic illness was probably present at the time of the sentencing in 1999.
(5) I think that Mr Ashton is likely to remain ill for some years. He may improve with further intervention and medication, however he is reluctant to agree to a trial of medication.
(6) I am of the opinion that his distrust extends to the Appeals Court Hearing this month.
(7) As mentioned above, I am of the opinion that he was probably ill at the time of the court hearing in 1999.
(8) I am of the opinion that a psychiatric assessment before September 1999 may have led to a diagnosis of illness.
In so far as the doctor gives his opinion of the probability of the applicant having a psychiatric illness at the time of sentence, without knowing the basis of that opinion or hearing the doctor cross-examined I would not place any great weight on that opinion in the absence of any other material which might support it.
The affidavit by the applicant's father sets out incidents in the applicant's life that his father believes may be relevant to an assessment of his mental state at the time of sentence. These are: firstly, the incident in 1977 when the applicant was present when his brother was killed by a motor vehicle on their way to school; secondly, that six months later when he was aged seven the applicant fell three metres onto a driveway sustaining an open head injury; thirdly, in 1989 the applicant was involved in a motor bike accident which resulted in a head injury; fourthly, in late 1994 or early 1995 the applicant was incarcerated in police cells for a period following his arrest for a breach of a domestic violence order and on one occasion attempted to cut his wrists. There is other material in the affidavit, to which it is unnecessary to refer, that leads his father to believe that the applicant was suffering a psychiatric illness for a period up to and including when he was sentenced in the District Court. I place little weight on that material to support the opinion of the doctor as to the applicant’s state at the time of sentence.
The applicant's father accepts that he did not bring to the attention of the solicitor appearing for the applicant in the District Court the bulk of the material that is contained in his affidavit or raise any suggestion with him that the applicant was psychiatrically disturbed at the time of sentence. He gives two reasons for this failure: firstly, he did not believe that imprisonment was a realistic option, and secondly, he was unaware of the benefit that might flow to the applicant if the court were aware of his psychiatric condition. Yet he gave evidence on the hearing of the application that he was aware of the applicant’s attitude to being incarcerated before the sentencing proceedings commenced.
As to the applicant's attitude to the application before this Court, his father states:
The Appellant has a completely closed mind to this Appeal and Court process. He has as it were "shut out" any thoughts of returning to custody. I have attempted to explain the need for him to come to Court and to be involved in the Appeal. His paranoia extends to his own legal representatives who have taken on the task of representing him in his Appeal at my request and in my capacity as a quasi guardian. I understand that the Appellant should be present at his Appeal and from the time of my swearing this Affidavit to the date of the Appeal I shall be making every effort to convince the Appellant to be present.
As I have indicated, the applicant’s father was unable to have him get out of bed on the morning of the hearing.
This is a borderline case for the reception of the material that has been placed before the Court in support of the application. However, there seems to me to be sufficient indication from the material before the sentencing judge to find that there was probably present at the time of sentence a psychiatric condition and one which, had its existence been known, would have been relevant to the sentence to be imposed upon the applicant. The applicant's initial refusal to sign the undertaking to comply with the conditions of periodic detention now assumes a significance that was not apparent at the time, as does the answer given by the applicant when he was asked about his attitude to signing the undertaking if the sentencing judge concluded that periodic detention was the appropriate sentence:
Well, at his Honour's mercy.
I accept that it is difficult for any member of a close family to form the view that another member of that family is psychiatrically disturbed. Yet it is clear that both the applicant's father and mother were concerned about his conduct over a lengthy period. They believed it was a result of unresolved grief and guilt arising from the death of his brother many years before. This would appear to be a factor that has played a significant part in the applicant’s present mental state. It seems to me that the answers given by the applicant's father during evidence before the sentencing judge, and which I have earlier set out, were an attempt to express that concern to the sentencing judge. In particular, the applicant’s father raised the applicant’s dislike of restraint during the course of his evidence, even though the significance of that remark would have escaped the sentencing judge and possibly the solicitor appearing for the applicant.
The report of Dr Marlow and his observations of the applicant shortly after the sentence was imposed, satisfies me that the applicant had a psychological, if not psychiatric, condition at the time of sentence which was such that the imposition of a custodial sentence of any kind was going to have a very significant impact upon the applicant’s mental health far beyond what might have been expected of a person not suffering such a condition.
Obviously, this Court would not be concerned with the effect upon a person of the fear of punishment that many offenders feel when they are about to be sentenced or when a sentence has been imposed. As the Crown Prosecutor on the hearing of the application observed, there would be few persons in the community who would not be in fear of the consequences of serving a gaol sentence. I am not sure that a sentence of periodic detention presents the same threat or that many people would react to it with the fear and emotional instability suffered by the applicant.
However, it seems to me that the probabilities are that the sentence imposed upon the applicant exacerbated his mental condition and led to the deterioration in his mental and physical well-being which has occurred over the period since sentence was imposed. I believe that the reaction of the applicant to the sentence of periodic detention imposed by his Honour is symptomatic of a deeper psychiatric illness that to some degree lay dormant until sentence was imposed. I can appreciate that the applicant’s father might not have treated as seriously as he should perhaps have done so the applicant’s expressed views about the effect of a custodial sentence upon him.
If the court had been aware, of what I accept was probably the case, that the applicant had a psychiatric illness which would manifest itself as it has since sentence, then that would have been a matter which might have affected the sentence to be imposed. For example, one matter that might have been given less weight was the need for general deterrence. In any event the sentencing court would have taken into account the impact, or possible impact, of a sentence upon the applicant, even one of periodic detention. Clearly, if the court had been aware that the threat of imprisonment was going to result in the deterioration of the applicant’s mental state such as appears to have occurred, it would have had to take into account the effect of the imprisonment upon him when determining whether such a sentence was warranted in all the circumstances of the case. In my view had the material been available to the sentencing court, it could have been regarded as having a real bearing on the sentence to be imposed, Goodwin (1990) 51 A Crim R 328. I would have thought that in all the circumstances it might have made the difference between periodic detention and community service.
I understand that a sentencing court cannot be held hostage to the attitude of an offender to a particular type of punishment, even if that attitude is based upon an abnormal mental condition. Nor is the court permitted to find some sentencing option that the offender can perform where that option is otherwise inappropriate to serve the purposes of punishment: R v T (NSWCCA, unreported, 19 June 1995). But the impact of imprisonment upon an individual is always a matter relevant to sentence and, where that impact might be exceptional, life threatening and disproportionate to the purpose to be served by imprisonment, the Court may, even if only as a matter of common humanity, choose another option.
The Crown has submitted that the applicant has not made out a basis for intervention by this Court. I appreciate the strength of this argument and the importance of this Court maintaining the distinction between an application for leave to appeal under the provisions of the Criminal Appeal Act and a review of a sentence that might be undertaken by the executive on compassionate grounds. The Crown relies upon the lack of any apparent psychiatric disturbance in the applicant’s evidence or in the interview he conducted with the police. However, as I have already indicated, I am satisfied that it is probable that the psychiatric condition evident at the present time was in existence at the time of sentence but that it was not fully appreciated by his parents or, of course the sentencing court. It may have been the imposition of the sentence that triggered off the more debilitating effects of his illness.
This should be seen as a very unusual, if not extraordinary, case. I accept that the decision to admit the evidence is at the very margin of the application of existing principle. However, I am persuaded that this Court should intervene and not simply leave the matter to be addressed by the executive.
The current situation for the applicant is exacerbated by the fact that this appeal and the resolution of the applicant’s fate has been allowed to drag on for over three years. In light of the applicant’s mental state, he cannot really be held to be responsible. He appears to be in complete denial as to the situation he faces and has played no part in the appeal process after the application was lodged. It seems that the applicant has simply ignored the sentence and the appellate procedures while the criminal justice system has permitted him to do so. It is easy to be critical with hindsight but I do not understand why the Crown permitted the matter to proceed as it did. There were thirty mentions of the matter before the Registrar over the period of three years. The appeal was still progressing even though the applicant’s sentence would have expired in its entirety had he been serving it. I cannot understand how it did not occur to someone before April 2001 that the applicant was not in fact in custody yet was not on bail.
Nor do I understand how the prison authorities allowed the applicant to simply fail to fulfil his obligations under the sentence that was imposed upon him. At the hearing of the appeal the Crown Prosecutor suggested that there might be a view within the Department of Corrective Services that, at least with periodic detention orders, the lodging of an application for leave to appeal against the sentence automatically stays the sentence. If such a view exists, it is clearly mistaken. There is nothing in the Criminal Appeal Act that operates to automatically stay a sentence of any kind when an appeal or application for leave to appeal is lodged. Unless the applicant is granted bail, the sentence imposed is in force and should be enforced.
While the criminal justice system has dithered, the applicant’s condition seems to have deteriorated. He has been placed on a disability pension by reason of his mental state. He has limited social contact although his father seems to have little knowledge of the detail of what the applicant does with his time. Apparently he has committed no further offences, and certainly has not come under adverse notice. There is some evidence that he is becoming more delusional. It is clearly a matter of concern that he is unwilling to accept that he is unwell or that he should receive treatment. The prognosis is not good if this remains his attitude.
The resolution of the matter is not an easy one. The offence is now clearly stale in so far as punishment of the applicant for his offence can have little, if any, impact upon his further offending or indeed upon the community generally. Yet the applicant has not been punished for what was a serious offence and one that would normally warrant a custodial sentence. But the matter has reached the stage that an exceptional course must be taken. As I have indicated the current proceedings should never have been allowed to reach the stage that it was not listed until three years after the sentence was imposed. Nor should the sentence imposed have been allowed to continue for so long before any administrative action was taken to either enforce it or revoke it.
It should be firmly understood that the outcome of this matter is not a precedent for anything other than this Court must on some occasions take an exceptional, although principled, course to deal with an exceptional, even if unacceptable, situation. It is of crucial importance to the determination of what the Court should do to address the situation which has been allowed to arise, that the applicant cannot be held responsible for the delay in the resolution of this matter and that his reaction to the sentence imposed is clearly a pathological and idiosyncratic one resulting from his mental illness.
I propose that the application be granted, the appeal allowed, and the sentence imposed be quashed. In lieu the applicant is sentenced to imprisonment for 18 months from 11 December 2002 and expiring on 10 June 2004 that sentence to be suspended on the applicant entering into a bond for 18 months conditioned that he be of good behaviour for that period and to appear before the Court if called upon to do so. It is to be a further condition of the bond that the applicant place himself under the supervision of the Probation and Parole Service and obey every direction of that Service with respect to receiving psychiatric or psychological treatment from Dr Henson or some other practitioner nominated by the Service. He is to report to the Probation and Parole Service at Chatswood within 7 days from today.
BUDDIN J: I agree with Howie J.
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LAST UPDATED: 13/12/2002
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