R v Gilby - [2012] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GILBY
[2012] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Stanley)
14 August 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - permission to appeal granted by single judge of the Court of Criminal Appeal - applicant pleaded guilty to causing harm with intent to cause harm, failing to comply with bail agreement, driving motor vehicle without a licence, driving in a manner dangerous to the public, failing to stop and provide particulars at the scene of an accident and providing false information to the police as to the identity of the driver of a motor vehicle - offence of causing harm with intent to cause harm breached two bonds to be of good behaviour - applicant sentenced to two years and 10 months' imprisonment with an 18 month non-parole period - sentencing judge refused to suspend the sentence - application to adduce evidence of the appellant’s condition in that he suffers from nocturnal seizures.
Held: Fresh evidence partially admitted - further evidence of seizures and consequential injuries admitted - evidence of conditions of incarceration and events prior to sentencing refused.
Appellant submits that the sentencing judge erred in failing to suspend the sentence - appellant submits that the sentencing judge failed to properly account for the appellant's medical condition - condition renders term of imprisonment unduly harsh.
Held: Appeal dismissed - no serious risk of imprisonment having a gravely adverse effect on the offender’s health - while appellant's epilepsy will make prison more burdensome, no demonstrable error of trial judge in light of countervailing factors.
Appellant submits that the sentencing judge erred in that the non-parole period is manifestly excessive.
Held: Appeal dismissed – no appealable error shown by sentencing judge in setting non-parole period.
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Dorning (1981) 27 SASR 481; R v Smith (1987) 44 SASR 587; R v Jongewaard (2009) 266 LSJS 283; R v Boyes (2004) 8 VR 230, applied.
R v Godwin (2001) 80 SASR 195, distinguished.
L v Commonwealth (1976) 10 ALR 269, SC(NT); Dixon v Western Australia [1974] WAR 65; Quinn v Hill [1957] VR 439; [1957] ALR 1127; Hall v Whatmore [1961] VR 225; Morgan v A-G [1965] NZLR 134; Howard v Jarvis (1958) 98 CLR 177; Masic v Bodbold (1984) 2 SR (WA) 220; Prisoners A to XX Inclusive v New South Wales (1995) 79 A Crim R 377, considered.

R v GILBY
[2012] SASCFC 94
Court of Criminal Appeal: Sulan, Anderson and Stanley JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Stanley J.
ANDERSON J. I would dismiss the appeal and I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to:
·causing harm with intent to cause harm;
·failing to comply with a bail agreement;
·driving a motor vehicle without a licence;
·driving in a manner dangerous to the public;
·failing to stop and provide particulars at the scene of an accident; and
·providing false information to the police as to the identity of the driver of a motor vehicle.
On 9 January 2012 he was sentenced by a judge of the District Court in respect of these matters.
At the same time the judge also dealt with the appellant for the breach of two bonds to be of good behaviour resulting from the offence of causing harm with intent to cause harm.
The appellant entered into these bonds in the following circumstances. On 18 April 2008 he entered into a bond in the amount of $1,000 to be of good behaviour for three years in respect of one count of taking part in the supply of LSD and one count of taking part in the supply of methylamphetamine. A six-month suspended sentence was imposed. The other bond was in the amount of $1,000 to be of good behaviour for 18 months from 29 September 2008 for the offence of possessing a firearm, namely, a sawn-off rifle, without a licence. A suspended sentence of three months imprisonment was imposed for this offence.
In respect of all of these matters the learned judge imposed a sentence of two years and 10 months imprisonment with a non-parole period of 18 months. His Honour declined to suspend the sentence of imprisonment.
The appellant complains of two matters on appeal. First, that the learned judge erred in failing to suspend the sentence. Secondly, that the learned judge erred in that the non-parole period was manifestly excessive.
The appellant submits that the learned judge fell into error in failing to have adequate regard to the issue of the appellant’s health and, in particular, that he suffers from epilepsy, which disposes him to refractory nocturnal seizures, in consequence of which a term of imprisonment was unduly harsh. In the circumstances, the appellant submits that the learned judge erred in failing to apply the provisions of s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), or in failing to impose a shorter non-parole period.
Reasons of the sentencing judge
The learned judge in sentencing referred to the particular circumstances of the offence of causing harm with intent to cause harm. It was a vicious and unprovoked assault at a country hotel. The victim was not known to the appellant. Both the appellant and the victim were intoxicated. There was a verbal exchange. The appellant punched the victim to the face as he was trying to back away, knocking him to the ground. While he lay on the ground, the appellant kicked him repeatedly in the head. The appellant was wearing boots. The victim suffered nasty injuries comprising facial fractures, a broken nose, damaged teeth and a fractured right eye socket. He has been left with residual emotional and physical problems.
The learned judge characterised this offence as brutal and cowardly. It is difficult to disagree with this characterisation.
His Honour set out the particulars of the driving offences which occurred some months after the assault in the hotel. The appellant was the driver of a vehicle which collided with a store post. He drove away without leaving his name, at high speed nearly hitting a pedestrian, all while unlicensed. Later he told the police someone else had been driving.
His Honour set out the details of the appellant’s background. It was sad and difficult: an abusive and alcoholic father, periods in foster care, separation from his brothers, sexual abuse, life on the streets, alcohol and drug abuse. His Honour noted that the assault occurred at the hotel shortly after the appellant had learned that his daughter, from an earlier broken relationship, had recently been sexually abused. This had caused the appellant to become depressed and to drink heavily. His Honour noted that it was in this context that the appellant had committed the offence against the victim, Mr J [ ].
His Honour said:
Following the assault on Mr J [ ] you began suffering epileptic seizures. You told the author of the pre-sentence report that the seizures caused you to re-evaluate your life. You stopped using drugs and formed a positive relationship with a young woman. You also secured work as a gyprock fixer. Unfortunately the frequency of your seizures began to increase in about mid-2009 and you had to stop work. I have received a letter from your former employer, Mr Morton. He states that you were a good worker and that he would be willing to have you back.
Your counsel first made sentencing submissions in April of last year. Thereafter the matter was adjourned from time to time so that reports could be obtained regarding your epilepsy and your likely prognosis. The reports indicate that you suffer from nocturnal refractory seizures which render you vulnerable to injury. There may be difficulty in monitoring your condition at night in a prison environment because, whilst cells are checked regularly at night, there is no guarantee that officers will be nearby to respond to any seizure you might suffer.
His Honour then turned to a consideration of the appellant’s criminal history. Over more than a decade, this involved convictions for many offences involving drugs, violence and, to a lesser extent, dishonesty.
The learned judge gave the appellant credit for his guilty pleas and his genuine remorse. However, he noted that the courts had to protect the public from acts of violence such as had been committed by the appellant. Accordingly, the sentence to be imposed depended on considerations of general and specific deterrence.
As I have said, having regard to all the matters to be considered, the learned judge imposed a total head sentence of two years and 10 months, with a non-parole period of 18 months.
The learned trial judge declined to suspend this sentence, saying:
Despite your guilty pleas, your contrition, your epilepsy and your personal circumstances, in general, I consider that it would be inappropriate to suspend the sentence of imprisonment that I imposed for causing harm, driving in a manner dangerous and breach of bail having regard to your poor criminal record and the seriousness of the offences, in particular the assault on Mr J [ ].
Admission of fresh evidence
The sentencing judge received considerable evidence in relation to the appellant’s health.
A report from his general practitioner, Dr Bachok, revealed that the appellant had reported that he was assaulted in 2009, resulting in a fractured skull. Subsequently, he had suffered from seizures. He consulted a neurologist at the Flinders Medical Centre. He was later hospitalised in the Strathalbyn Hospital for this complaint. He was referred to a neurologist, Dr Frasca.
His Honour had reports from Dr Frasca of 6 June 2011 and 21 June 2011. Dr Frasca reported that the appellant had a history of epilepsy, first diagnosed in approximately 2008, which presented with ongoing refractory nocturnal generalised seizures. These had been treated by a range of medications which had failed to control the seizures adequately. In particular, he advised that the appellant was at risk of having further ongoing generalised nocturnal seizures which placed him at risk of serious injury. Dr Frasca observed that, if the appellant fell on to a cement floor, the potential for injury was greater. He added that if the appellant did not have access to his medications and to urgent medical assessment when he had further seizures, the risk of potential serious injury increased. In his latter report, Dr Frasca noted that the appellant was changing his anti-epileptic medications to try and control his seizures, but that had not yet happened. He emphasised the need for the appellant to be on regular anti‑epileptic medications to control the seizures, and to have access to a medical facility if he had generalised prolonged seizures that might require acute medical treatment.
His Honour had an email from Dr Peter Frost, the Clinical Director of the Prison Health Service, of 14 July 2011 which noted that the appellant suffered from refractory nocturnal seizures. Dr Frost said:
The problem for Correctional Services will be where would be the best place to house him. Patients with stable epilepsy can safely be accommodated in the general prison community. Unstable patients or those who are prone to injuring themselves during a seizure probably couldn’t. Cells are checked regularly overnight however there is no guarantee officers will be nearby to respond to a seizure. Placement in a Correctional Services observation cell would be inappropriate. The only other option for highly unstable patients may be permanent placement in the health centre at Yatala Labour Prison, providing a bed is available.
These were the relevant materials before the learned judge when he imposed sentence.
His Honour was concerned to understand as fully as he could the state of the appellant’s health before imposing sentence. To this end, he adjourned the sentencing hearing on a number of occasions to obtain further medical evidence.
The appellant seeks to put fresh evidence before the Court.
The task of this Court is to see whether the trial judge went wrong on the material before him.[1]
[1] R v Smith (1987) 44 SASR 587 at 588.
There is power to receive fresh evidence however, in accordance with principles set out in R v Dorning, as follows:[2]
In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible ...
[2] (1981) 27 SASR 481 at 485.
In R v Smith, King CJ said:[3]
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
[3] (1987) 44 SASR 587 at 588.
King CJ went on to explain that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. On that basis, the Court in Smith admitted evidence which, while in a sense establishing the occurrence of events occurring after the passing of sentence, did so for the purposes of explaining the full extent and implications of the conditions of the appellant’s health which existed at the time of sentence.[4]
[4] (1987) 44 SASR 587 at 588-589.
In this case, the appellant seeks to adduce fresh evidence of events that have occurred since he had commenced to serve his term of imprisonment. In particular, he seeks to adduce evidence of the fact that he has not been given his medication, or given the wrong medication, he has continued to suffer nocturnal seizures while in prison and been injured as a result, and the circumstances of his incarceration, including that he has had to sleep alone or on an upper bunk. The appellant seeks to adduce this further evidence for two purposes. First, to establish that his epilepsy remains unstable and medication has not been able to control it. Secondly, to establish that in circumstances where his illness is not controlled, the conditions of his incarceration in prison expose him to a risk of serious injury because he cannot be guaranteed a bed on a lower bunk and constant or even regular monitoring of his sleep during the night is not possible.
The fresh evidence seeks to establish that if he remains in prison, he is at risk of further injury which may be serious in nature.
The Director opposed the application to tender the fresh evidence.
Plainly, all the evidence sought to be adduced as fresh evidence is of events occurring after sentence. I am satisfied that some of it does so, however, for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence, namely, the evidence of further seizures and consequential injury. Accordingly, following the approach in R v Smith,[5] that evidence should be admitted on appeal. The remainder, namely, the evidence concerning events prior to sentencing and the conditions of his incarceration, must be excluded. Evidence concerning events prior to sentencing must be excluded because it has not been demonstrated that the evidence could not have been obtained with reasonable diligence for use at the sentencing hearing. Evidence concerning the conditions of the appellant’s incarceration must be excluded because the evidence is concerned with events not in existence at the time of sentencing.
[5] (1987) 44 SASR 587 per King CJ at 588, Cox and O’Loughlin JJ agreeing at 590.
While the Court of Criminal Appeal in R v Godwin[6] received fresh evidence of the effect of imprisonment upon the health of the appellant, that evidence was admitted without opposition. That is not the position in this case.
[6] (2001) 80 SASR 195.
Accordingly, I would admit paragraphs 1, 29-65, 68-70 of the affidavit of the appellant sworn 6 July 2012, and the reports of Dr Frost of 3 May 2012[7] and 1 June 2012.[8]
[7] Appeal Book pp 10-11.
[8] Appeal Book pp 12-14.
Consideration
The test to be applied by this Court in determining whether to interfere on appeal with a decision on sentence is set out by Doyle CJ in R v Jongerwaard:[9]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Makarian v R:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, ... itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
In the present case Mr White did not point to any specific error of fact or law by the Judge. His submission is that the result is unreasonable, and manifestly excessive, and in particular that the Judge should have suspended the sentence.
The latter argument will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not “good reason” for suspending the sentence, in exercise of the power conferred by s 38(1) of the Sentencing Act. (Citations omitted)
[9] (2009) 266 LSJS 283 at 288 - 289 [40]-[42].
Even if some relevant error is identified by the appeal court it will only interfere with the sentence imposed where it is satisfied it is manifestly excessive or inadequate or there has been a miscarriage of justice because the failure to suspend the sentence was unreasonable.
Mr Apps, counsel for the appellant, submitted that the learned judge fell into error in two ways. First, by failing to consider that the appellant’s epilepsy, which resulted in nocturnal seizures, rendered him vulnerable to serious injury in prison (my emphasis). Secondly, in failing to address the issue of whether it was unduly harsh for the appellant to serve any time in prison, having regard to the terms of s 38(2c) of the Sentencing Act.

In my view, these alleged errors on the part of the learned judge are really two sides of the same coin.
Section 38(2c) of the Sentencing Act provides:
(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions, included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a)remunerated employment;
(b)necessary medical or dental treatment for the defendant;
(c)averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d)any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
In R v Smith,[10] King CJ said that ill-health will be a factor tending to mitigate punishment where 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.
[10] (1987) 44 SASR 587 at 589.
In R v Godwin,[11] Prior J (which whom Nyland and Lander JJ agreed) observed that the statement of principle by King CJ in R v Smith,[12] set out above, reflects the language of s 38(2c) of the Sentencing Act.[13]
[11] (2001) 80 SASR 195 at 200.
[12] (1987) 44 SASR 587 at 589.
[13] [27].
In my view the appellant’s submissions cannot be accepted. The learned judge clearly had regard to both the state of the appellant’s health and to the resulting burden of imprisonment on him. His Honour expressly referred to the appellant’s vulnerability to injury as a result of him suffering nocturnal seizures. The appellant complains that the learned judge overlooked the evidence from Dr Frasca that he was vulnerable to serious injury. I reject this submission. The express reference by the learned judge to the appellant’s vulnerability to injury must have been based on the evidence from the report of Dr Frasca which referred to the appellant’s vulnerability to serious injury as a result of his predisposition to suffer from nocturnal seizures. Accordingly, I am satisfied that the learned judge did have regard to the evidence that the appellant is vulnerable to serious injury if he continues to suffer from nocturnal seizures. No significance can be attached to the absence of any reference to the adjective “serious” in the sentencing remarks.
Furthermore, the learned sentencing judge had regard to the difficulty that would be experienced in prison by the Correctional Services authorities in monitoring his condition at night.
Finally, in determining whether to suspend the sentence imposed, the learned judge expressly referred to the appellant’s epilepsy in weighing the various factors to be considered in reaching the conclusion that suspension of the sentence was not appropriate.
While it is true that the learned judge did not refer expressly in his sentencing remarks to the provisions of s 38(2c) of the Sentencing Act I do not consider this demonstrates any error. For the reasons I have explained above, a consideration of whether to exercise the powers conferred pursuant to that provision involves the same consideration which must be given to the question of whether to suspend a sentence in accordance with the principles set out in R v Smith.[14]This question was fully considered by the learned sentencing judge.
[14] (1987) 44 SASR 587.
In my view, the learned sentencing judge’s approach was consistent with well-established principles. In R v Smith[15] King CJ said:[16]
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. III 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.
[15] (1987) 44 SASR 587.
[16] At 589.
The fact that the appellant has continued to suffer nocturnal seizures in prison is a relevant consideration. But the fact that the appellant has done so, in my view, is not a basis upon which to conclude that the learned sentencing judge fell into error in failing to suspend the term of imprisonment imposed. First, the learned sentencing judge plainly expected that the appellant would suffer further seizures in prison. Secondly, the Correctional Services authorities are under a duty to take reasonable care for the safety of prison inmates.[17] The content of the duty requires provision of appropriate care and treatment for the appellant. That should include ensuring that he is not required to sleep on an upper bunk, he is supervised on a regular basis, he is provided with regular medication and has access to a medical facility if he suffers seizures that require acute medical treatment. The evidence of Dr Frost was predicated upon the appellant’s epilepsy remaining unstable. The effect of Dr Frasca’s evidence was that in order for the appellant’s epilepsy to stabilise he has to be on regular medication. Dr Frost’s evidence is that if the appellant’s epilepsy is stabilised he can be safely accommodated in the general prison system. If, however, his epilepsy does not stabilise, this will present challenges for his accommodation within the prison system. He canvasses possible approaches the Correctional Services authorities can undertake to manage the appellant in those circumstances. I note there is some evidence that the appellant has not been compliant with his medication since his incarceration. Ultimately these are matters for the appellant and for Correctional Services.
[17] L v Commonwealth (1976) 10 ALR 269, SC(NT); Dixon v Western Australia [1974] WAR 65; Quinn v Hill [1957] VR 439; [1957] ALR 1127; Hall v Whatmore [1961] VR 225; Morgan v A-G [1965] NZLR 134; Howard v Jarvis (1958) 98 CLR 177 at 183; 32 ALJ 40 per Dixon CJ, Fullagar and Taylor JJ; Masic v Godbold (1984) 2 SR (WA) 220, DC(WA) (duty of gaoler to exercise care for person of prisoner during detention) (affirmed Godbold v Masic (unreported, SC(WA), Full Court, No SS83, 31 October 1984) as noted in Masic v Godbold (1984) 2 SR (WA) 220); Prisoners A to XX Inclusive v New South Wales (1995) 79 A Crim R 377.
Notwithstanding that the appellant has suffered further seizures since his imprisonment which have resulted in injury, the evidence does not establish that imprisonment poses a serious risk of gravely affecting the appellant’s health. It is to be remembered that the appellant suffered seizures outside the prison environment which caused him injury.
There are two limbs to the test posed by King CJ in R v Smith.[18]The first limb is whether imprisonment will be a greater burden on the offender by reason of his state of health. The second limb is whether there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. If either limb of the test is established, that is a factor to be weighed in favour of mitigation.
[18] (1987) 44 SASR 587 at 589.
It is convenient to deal with the second limb of the test first. For the reasons set out above, neither the evidence before this Court nor the evidence before the learned sentencing judge establishes there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health within the sense discussed in Smith’s case.[19]
[19] (1987) 44 SASR 587.
I turn to the first limb of the test. In R v Boyes[20] Chernov JA (with whom Smith and Coldrey AJJA agreed) discussed the first limb of the test in Smith in the following terms:
[W]hether imprisonment will be more difficult for the appellant than for an ordinary inmate is not the relevant criteria for determining if the first part of the test in Smith has operation. Without seeking to treat the above passage from the judgment of King, C.J. as if it were a piece of legislation, it is nevertheless clear from its terms that the first limb is concerned with whether the burden of imprisonment on the offender will be increased because of his disability. Thus, the analysis focuses on the impact that the offender’s disability has on his ability to cope with the prison system in light of his disability. Consequently, before the disability can be treated as a mitigating factor under the first limb, the offender must establish that it will result in imprisonment being a greater burden on him. Thus, the relevant question for present purposes is whether the appellant’s incomplete paraplegia will make imprisonment more burdensome for him and not whether he will find imprisonment more difficult due to his disability than an ordinary prisoner.
[20] (2004) 8 VR 230 at 237 [20].
I am satisfied that the appellant’s epilepsy will make imprisonment more burdensome for him. But it does not follow that the appellant’s sentence should have been suspended as a result. More importantly, it does not establish that it was unreasonable of the learned sentencing judge to have failed to suspend the sentence for this reason. The fact that the appellant’s epilepsy means imprisonment will be a greater burden on him than an ordinary prisoner not suffering that illness is merely a mitigating factor to be weighed with other relevant factors in the imposition of a sentence. I am satisfied that the sentencing process did not miscarry. The learned sentencing judge had regard to the nature of the appellant’s illness and the impact imprisonment would have on him given his epilepsy. There is no demonstrable error in the failure to suspend the sentence. On the contrary, I am satisfied that the other countervailing factors identified by the learned sentencing judge justified his Honour in declining to suspend the sentence. The failure to suspend the sentence cannot be characterised as unreasonable.
For similar reasons I am also satisfied that no error has been demonstrated by the length of the non-parole period imposed by the learned judge. A decision setting a non-parole period is discretionary in its nature. In this case the non-parole period was a little over half the head sentence. I reject the submission that the learned judge in fixing the non-parole period failed to have regard to the concerns surrounding the management of the appellant’s health in prison. Having regard to the nature of the appellant’s offending, the head sentence and the non-parole period can be regarded as merciful. It is not difficult to conclude that the learned sentencing judge fixed the head sentence and the non-parole period by reference to considerations of the appellant’s health and the impact of imprisonment on his health. In the circumstances, I do not consider the non-parole period could be characterised as manifestly excessive, or otherwise tainted by appealable error.
Conclusion
I would dismiss the appeal.