R v Ireland

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRELAND
[2012] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Stanley)
30 October 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appellant pleaded guilty to one count of arson - appellant sentenced to four years imprisonment with non-parole period of eight months - sentencing Judge declined to suspend sentence - appellant recovering from severe burns requiring a detailed regime of treatment - appellant appeals against sentence.
Whether Judge placed too much emphasis on his view that it would be possible for the appellant's treatment and care needs to be accommodated whilst in custody - whether Judge had insufficient regard to the adverse impacts of imprisonment on the appellant's health - whether Judge had insufficient regard to s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA) and to the home detention option which it contained.
Held: appeal allowed - improbable that the appellant's treatment and care needs could be accommodated whilst in custody - the Judge had sufficient regard to the adverse impacts of imprisonment on the appellant's health - the possible imposition of a home detention condition was a matter to be taken into account when considering whether suspension was appropriate.
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
McNamara v Barrett [2001] SASC 354; R v Dorning (1981) 27 SASR 481; R v Gilby [2012] SASCFC 94; R v Godwin (2001) 80 SASR 195; R v Smith (1987) 44 SASR 587, considered.

R v IRELAND
[2012] SASCFC 120
Court of Criminal Appeal: Vanstone, White and Stanley JJ

VANSTONE J. I agree with the orders proposed by White J and with the reasons he has written.
WHITE J. The appellant committed the crime of arson on 23 February 2011. A District Court judge sentenced him to imprisonment for four years and fixed a non‑parole period of eight months.
The appellant appeals against the Judge’s refusal to suspend this sentence. He contends that the very severe burns he sustained at the time of the offence will make time in custody unduly harsh for him with the effect that the Judge should have ordered suspension.
Circumstances of the Offence
The appellant was 26 years old at the time of the offending. His upbringing was, in many respects, dysfunctional and he lived with his grandparents from the age of 13.
On leaving school, the appellant commenced working in his grandfather’s business, Whyalla Landscaping Supplies Pty Ltd. Initially, he worked as a labourer but later, as the manager of the business. He continued to live with his grandparents while in this employment.
In about April 2010, the appellant’s grandfather terminated the appellant’s employment. Each believed that the other had been, or was, acting dishonestly or dishonourably in relation to the other. At the same time the appellant ceased living with his grandparents. It is evident that by February 2011, the appellant had developed, whether justified or not, considerable resentment towards his grandfather.
In the early hours of 23 February 2011, the appellant entered the premises of Whyalla Landscaping Supplies. Using a jerry can kept on site he spread petrol about and set the premises alight. This caused a conflagration resulting in the destruction of the premises. The damage was estimated at about $250,000. Needless to say, this wanton destruction of uninsured property caused the appellant’s grandfather to experience considerable dismay and distress in addition to his financial losses.
There was evidence that the appellant was suffering from significant depression in the week or so before the offence. He had made a suicide attempt about one week before 23 February for which he had been treated at the Whyalla Hospital.
However, on any view, the appellant’s offending was serious and, despite his psychological state and good record, a sentence of imprisonment was inevitable. The question of whether that sentence should be suspended was the principal focus of the sentencing submissions before the Judge.
The Appellant’s Physical Condition
When committing the offence, the appellant also set himself alight. He sustained very severe burns to his back, buttocks, legs, arms, chest and abdomen. Some 56 per cent of his total body surface area was burnt and of this area, some 31 per cent were full thickness burns.
The appellant managed to drive himself to Whyalla Hospital and very shortly afterwards was transferred to the Royal Adelaide Hospital (RAH). He required extensive surgery, including skin grafts, and remained in the RAH for just on eight weeks. On discharge, he underwent rehabilitation at Whyalla Hospital and underwent further surgery in the RAH in February 2012.
Associate Professor Greenwood, the Director of the Burns Unit at the RAH, reported that the healing and maturation of the appellant’s skin grafts will take up to two years to complete. After maturation, the grafted areas will remain vulnerable to thermal, chemical and mechanical injury. They are also sensitive to heat and intolerant to cold.
The grafted areas are incapable of self‑hydration. This is addressed by the regular application of moisturising creams in order to prevent drying, cracking and bacterial ingress. The appellant applies moisturisers, in accordance with Professor Greenwood’s recommendations, three times each day. In addition, the appellant requires massage to help soften the scars and physiotherapy to safeguard against the skin and the scars contracting. Amongst other things, the appellant makes daily use of a treadmill for this purpose. The appellant must also use compression garments until maturation of the scars has been achieved.
The appellant is at considerable risk of wound infection. When infections occur, he must take antibiotic medication.
Even when the skin grafts are mature, Professor Greenwood considers that the appellant will still need to apply moisturising cream at least once each day for the rest of his life, as well as continuing his massaging of the scarred areas.
The appellant’s burns have caused, and continue to cause, considerable pain and discomfort. He takes painkillers as well as sleeping pills to allow him to sleep. In addition, the appellant uses a prescribed anti-histamine to relieve the itchiness in the scarred areas.
Due to their location, the appellant cannot apply the moisturisers to all of the scars. Nor can he massage all of the scarred areas. Since the appellant’s discharge from hospital, his mother has acted as his carer and has attended to these tasks for him. The appellant is also unable to clean himself after defecating and, as I understand it, his mother assists him in this respect.
In February 2012, the appellant was wearing compression garments (gloves, sleeves, trunk and shorts) 24 hours every day. As I understand it, this was still the position at the time of the sentencing submissions. The process of washing, applying the creams and replacing the compression clothing takes approximately one hour.
In summary, the medical evidence indicates that the appellant is part‑way through the process of healing and maturation of his scars. While this is occurring, he requires an active and sustained regime of treatment. When maturation occurs, he will still require daily treatment for the rest of his life.
Dr Frost, the Clinical Director of the South Australian Prison Health Service (SAPHS) reported that the SAPHS could provide the appellant’s medication and moisturisers and could ensure that he would have access to the necessary compressive clothing.
On the other hand, Mr Sexton, the Acting Chief Executive of the Department for Correctional Services, reported that the appropriate management of the appellant would “pose a significant challenge”. His report included the following:
1.the appellant will not be able to be accommodated in the mainstream prison population. He will probably have to be accommodated in the Prison Health Centre at either Yatala Labour Prison or the Adelaide Remand Centre, but this will mean that his access to yard time, sunlight and socialisation will be severely limited;
2.arrangements for a private carer to attend in prison, especially if that is necessary three times a day, are theoretically possible, but not practical;
3.neither Correctional Service officers nor other prisoners are likely to assist the appellant with his toileting hygiene;
4.infection control for the appellant is problematic;
5.it is not considered appropriate for nursing staff to enter a cell in the general prison environment to apply creams or to attend to the care needs of prisoners;
6.the appellant’s access to the treatment and showers he needs is likely to be affected from time to time by prison lockdowns.
The appellant was sentenced on 21 September 2012. He was taken into custody immediately at the Port Augusta Prison.
On 27 September, a judge of this Court granted the appellant permission to appeal. At the same time, the Judge granted the appellant bail on home detention conditions pending the determination of the appeal.
On the hearing of the appeal, the appellant asked the Court to receive further evidence. This comprised, first, a memorandum from Professor Greenwood indicating that massage and moisturisation remain “pivotal” in the appellant’s recovery. Without these, the skin grafts will dry out and crack, and bacteria resulting in infections or itchiness will enter. This gives rise to an “itch cycle”, ie, scratching, trauma to the skin grafts from the scratching, further breakdown of the grafts, and consequential pain and itchiness.
The appellant also tendered an affidavit sworn by himself outlining the course of events concerning his injuries while in custody between 21 and 27 September. It is not necessary to recount this material in any detail. It is sufficient to indicate that while in custody, the appellant was not able to treat himself, and did not receive treatment from others, in accordance with the entire regime recommended by Professor Greenwood.
Counsel for the Director objected to the Court receiving this material as fresh evidence on the appeal. She contended that it did not come within the well‑established principles concerning the reception of fresh evidence.[1] The Court indicated that it would rule on the reception of the evidence in these reasons.
[1] See R v Dorning (1981) 27 SASR 481 at 488; R v Smith (1987) 44 SASR 587 at 588.
I would receive the further evidence. It assists in “explaining the full extent and implications of the appellant’s condition of health … at the time of sentence”.[2] In particular, it shows that the needs of the appellant described in Professor Greenwood’s report of 5 February 2012 continue unabated, and give some insight into the extent to which those needs can, and will, be accommodated within the prison system.
[2] R v Smith (1987) 44 SASR 587 at 588.
The Judge’s Sentencing Remarks
The Judge accepted that the appellant had the treatment needs described above. He said:
Your treatment and physical rehabilitation requires a difficult and complicated daily routine which must also continue for quite some time, and it is self‑evident that your rehabilitation will be compromised if your current routine is interfered with.
Although accepting that the appellant’s physical condition meant that imprisonment would be a greater burden on him than would otherwise be the case, the Judge refused to order suspension of the sentence he imposed, saying:
However, and as has been repeatedly said, the court must be cautious as to the influence they allow ill health to have on the sentencing process and that it is the responsibility of the correctional authorities to provide appropriate treatment and care for prisoners who are in ill health.
Your circumstances are plainly well out of the ordinary, difficult to manage and you would find prison burdensome. These things are plainly matters in mitigation and on the material before me there can be no doubt that your circumstances would be very difficult for the correctional authorities to manage. However, these difficulties do not seem to me to be insurmountable and what is before me does not in my view go so far as to say that your circumstances will be impossible to manage. In my view it is thus up to the relevant authorities to make the appropriate arrangements. Good reason to suspend your sentence cannot be found to exist.
The Judge went on to say that he would fix a non‑parole period which was significantly less than might otherwise have been in order to reflect the appellant’s particular circumstances. Hence the Judge fixed a non‑parole period of eight months.
The Power to Suspend
Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) vests sentencing courts with a power to suspend sentences of imprisonment. Subsections (1) and (2c) are pertinent presently:
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) of the bond.
…
(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).
…
Consideration
Although the ill health of an offender is relevant to the fixing of a proper sentence, it is a matter about which sentencing courts exercise circumspection. The approach stated by King CJ in R v Smith[3] is authoritative:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[4]
[3] Ibid.
[4] Ibid at 589.
As King CJ observed, it is the responsibility of the prison authorities to provide appropriate care and treatment for sick prisoners. Generally, courts are entitled to sentence in the expectation that the prison authorities will discharge this responsibility.
King CJ identified two circumstances in which ill health will operate as a mitigating factor: first, when the imprisonment will be a greater burden on offenders by reason of their state of health; and, secondly, when there is a serious risk of imprisonment having a gravely adverse effect on the health of the offenders. These matters are not to be treated as though embodied in a statute, but this passage of King CJ has, as I have indicated, been accepted as authoritative.[5] In the present case, it is plain that the Judge had regard to, and was guided by, the approach of King CJ in Smith.
[5] See R v Godwin [2001] SASC 295 at [26]; (2001) 80 SASR 195 at 200; R v Gilby [2012] SASCFC 94 at [47].
The appellant submitted, however, that the Judge had made three errors of approach.
First, the appellant submitted that the Judge had placed too much emphasis on his view that it would be possible for his treatment and care needs to be accommodated while he is in custody. The submission was, in effect, that that possibility was more theoretical than real, and that the Judge had thereby been deflected from a consideration of the probable, and perhaps inevitable, impacts which imprisonment would have on his treatment and recovery.
There is force in this submission. The Judge accepted that the appellant’s rehabilitation will be compromised if he cannot continue the recommended regime of treatment and he accepted that, by reason of the appellant’s condition and needs, imprisonment will be burdensome for him and that it will be “very difficult” for the prison authorities to manage his circumstances. The Judge found, however, that this did not constitute good reason to suspend the sentence because the difficulties were not “insurmountable” and the appellant’s circumstances were not “impossible to manage”. This rather implies that the Judge considered that good reason to suspend in the circumstances of this case could be found only if it would not be possible at all for the appellant’s circumstances to be managed while in prison.
In my respectful opinion, this was an unduly stringent approach. If the prison authorities have sufficient resources, then of course the appellant’s circumstances could be managed while he is in custody. However, there are some limits on what can reasonably be expected of the prison authorities, given the finite nature of their resources. The statement of Mr Sexton, made in the context of an acceptance of the responsibility of Correctional Services to provide adequate care and treatment for sick prisoners, that managing the appellant in custody will prove “a significant challenge” is pertinent.
One example illustrates the point. The appellant must apply moisturisers to the skin grafts three times per day and must also massage those areas. He can do that himself to some parts of his body but needs assistance with respect to those areas which he cannot reach. Unless detained for the duration of his imprisonment in a prison health centre, he will not have that assistance at the times at which he needs it. Mr Sexton spoke of the impracticality of engaging a private carer to provide that service. In the light of this evidence, the Judge’s approach, in my respectful opinion, placed too much significance on what may be theoretically possible, instead of what, as a matter of practicality, may realistically be expected of the correctional authorities.
Secondly, the appellant submitted that the Judge focussed on the first limb of the formulation in Smith, and had had insufficient regard to the second, namely, the adverse impacts of imprisonment on his own health. There is some justification for this submission as, in his statement that good reason for suspension could not be found, the Judge referred only to the burdensome effect of imprisonment (a seeming reference to the first limb).

On the other hand, shortly before that passage, the Judge had recounted counsel’s submission involving both limbs of Smith. It is also plain that the Judge was heavily influenced by the approach of King CJ in Smith. In these circumstances, the Judge’s reference to the burdensome effect of imprisonment may reasonably be understood to be a shorthand reference to both limbs. That being so, I would not uphold this complaint on appeal.
The appellant’s third submission was that the Judge had failed to have sufficient regard to s 38(2c) of the CLSA and, in particular, to the additional sentencing option which he said it contained. This gave rise to some debate as to the effect of s 38(2c).
On one view, the power to suspend a sentence of imprisonment, and the grounds upon which that power may be exercised, are found in s 38(1), ie, the Court must consider that “good reason” exists for suspending. On this view, subs (2c) operates when the Court has found that good reason to suspend exists because the defendant’s state of health or physical condition would make it unduly harsh for the defendant to serve any time in prison. When that is the reason for suspension, the Court may make a home detention order.
On another view, the undue harshness of serving time in custody resulting from a defendant’s health or physical condition may be an independent ground on which a court may suspend a sentence. This appears to have been the view of Prior J (with whom Nyland and Lander JJ agreed) in R v Godwin:[6]
This statement of principle by King CJ is obviously acknowledged and reflected in the language of s 38(2c) of the Criminal Law (Sentencing) Act. If, in a particular case, it seems that it would be unduly harsh for a defendant to serve any time in prison because of that person’s ill health, disability or frailty that is, by the express terms of s 38(2c), a ground for suspending a sentence of imprisonment. That provision was incorporated into the Criminal Law (Sentencing) Act by a provision that came into effect some 12 years after the decision in Smith. The home detention particularised in subs (2c) calls for a positive finding that it would be unduly harsh for the appellant to serve any time in prison. It also limits the period of detention to no more than 12 months.[7]
[6] [2001] SASC 295; (2001) 80 SASR 195.
[7] Ibid at [27]; 200. See also McNamara v Barrett [2001] SASC 354 at [18].
Subsection (2c) may also be regarded as enlarging the circumstances in which a court may find good reason to suspend in those cases in which the ill health or physical condition of a defendant would make it harsh for the defendant to serve any time in custody. That is because the ability to impose a home detention condition, may, by itself, contribute to the circumstances amounting to good reason to suspend the sentence. That is to say, subs (2c) operates in a composite way, as opposed to having effect only once the decision to suspend has been made.
In my opinion, whether s 38(2c) is understood as containing an express ground on which a court may order suspension or as operating within the context of s 38(1) may have little practical effect. That is because the effect of serving time in custody on a person’s health has, as was observed by King CJ in Smith, always been a relevant matter in sentencing.
The significance of subs (2c) is that it permits the Court to impose, as a requirement of a bond, that the person whose sentence is suspended on this ground serve another form of detention, ie, home detention. This is an important addition to the available sentencing options as courts do not otherwise have power to sentence adult offenders to home detention, and it is doubtful that detention of this kind could be made a condition of a bond imposed under s 38(1)(b).[8] This is consistent with the purpose of s 38(2c) stated by the Attorney‑General in the Second Reading Speech relating to its introduction:
Courts cannot sentence adult offenders to home detention. Home detention is only an option for adult prisoners in custody who are administratively released on home detention. There may be occasions when it would be unduly harsh for a prisoner to serve any time in prison because of the prisoner’s ill health, disability or frailty. Section 38 is amended to allow a court to suspend a sentence of imprisonment where this is so and to make it a condition of the bond that the prisoner reside in a specified place and remain in that place for a specified period of no more than 12 months. The court must include a condition in the bond requiring the prisoner to be under the supervision of a probation officer.[9]
[8] A home detention condition is not included in the conditions listed in s 42 of the CLSA which may be included in a bond.
[9] South Australia, Parliamentary Debates, Legislative Council, 18 November 1998 at 208.
It is appropriate therefore to regard subs (2c) as expanding the options available when suspension of a sentence on the grounds of a defendant’s poor health is considered. That being so, it is reasonable to infer that the power to impose a home detention condition in such cases may itself be pertinent to the decision to suspend, because it may allow a court more readily to find good reason to suspend a sentence in cases of this kind.
The Judge did not overlook s 38(2c). He referred to it when reciting a submission made by the appellant’s then counsel. However, the manner of the Judge’s reference suggests that he regarded subs (2c) as something which may be considered if he did decide that suspension was appropriate, and not as relevant to the suspension decision itself. In this respect, I consider that the Judge erred.
Accordingly, I consider that two of the appellant’s submissions concerning the Judge’s refusal to suspend his sentence succeed. This means that this Court should revisit the issue of suspension.
Reconsideration
The appellant’s offence was very serious. Normally it would warrant his sentence of imprisonment being served immediately.
On the other hand, it is plain that imprisonment will be a greater burden for the appellant by reason of his physical condition. The Judge accepted that that was so. That greater burden arises in particular from the circumstance that the appellant will not have access to all the treatment which he needs and from the circumstance that a prison environment is not really suitable for a person recovering from severe and extensive burns.
Perhaps more significantly, it is probable that imprisonment will, gravely and adversely, affect the appellant’s health. As previously noted, Professor Greenwood has described massage and moisturisation of the skin grafts as “pivotal”. There are limitations on the ability of the Correctional Services Department to provide these services, or to permit them to occur. Professor Greenwood also describes the consequences for the appellant if the skin grafted areas do dry out, namely, a cycle of circumstances which can result in breakdown of the scars. In addition, the risk of infection through the cracks and broken down areas is material. The very short non‑parole period fixed by the Judge is a recognition of these risks and of the difficulties which imprisonment will have for the appellant.
I consider that these matters, in combination with the other inconveniences and discomfort which the appellant will experience while in custody, do indicate that incarceration will be unduly harsh for him. That being so, and although it is unusual, I consider that there is good reason to suspend the appellant’s sentence, provided that he is subject to a home detention condition for the balance of his non‑parole period.
Summary
For the reasons set out above, I would allow the appeal. I would order that the sentence imposed by the Judge be suspended upon the appellant entering into a bond to be of good behaviour for a period of three years and to comply with a home detention condition for a period of seven months.
STANLEY J. I agree with the orders proposed by White J and with the reasons he has written.

[2012] SASCFC 120

30 October 2012

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Sentencing

Appeal

Charge