R v Gilby

Case [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

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R v Gilby [2012] SASCFC 94
Case
[2012] SASCFC 94
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CaseChat Overview and Summary

The applicant, R v Gilby, appealed against a sentence imposed by the sentencing judge. The applicant had pleaded guilty to several offences, including causing harm with intent to cause harm, failing to comply with a bail agreement, driving without a licence, dangerous driving, failing to stop at an accident scene, and providing false information to police. The sentencing judge imposed a sentence of two years and 10 months' imprisonment with an 18-month non-parole period, refusing to suspend the sentence. The applicant sought to adduce fresh evidence concerning his condition of nocturnal seizures.

The legal issues before the Court of Criminal Appeal were whether the sentencing judge erred in failing to suspend the sentence, and whether the judge failed to properly account for the applicant's medical condition, which the applicant argued rendered the term of imprisonment unduly harsh. The court was required to determine if specific error was demonstrated in the sentencing judge's decision, or if the sentence was unreasonable or plainly unjust, particularly in light of the fresh evidence regarding the applicant's epilepsy.

The court admitted some of the fresh evidence relating to the applicant's seizures and consequential injuries, but refused to admit evidence concerning the conditions of incarceration and events prior to sentencing. Applying the principles from *R v Jongerwaard* and *Makarian v R*, the court considered whether the sentencing judge had made an error of principle, considered irrelevant matters, mistaken facts, or failed to consider material considerations. The court found that while the applicant's epilepsy would make prison more burdensome, there was no demonstrable error by the trial judge, as there were countervailing factors such as the applicant's poor criminal record and the seriousness of the offences. The court concluded that the sentencing judge had likely taken the applicant's health into account when imposing sentence, and that the head sentence and non-parole period could be considered merciful.

The appeal was dismissed. The court found no error in the sentencing judge's refusal to suspend the sentence or in the length of the non-parole period, determining that it was not manifestly excessive or tainted by appealable error.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

ANDERSON J (dissent)
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.

Ratio Decidendi

Legal Principle Established

Established by:

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).