R v Lee - [2006] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEE
[2006] SASC 146
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
19 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
The appellant was convicted in the District Court of seven offences - the appellant appeals against sentence to the Supreme Court - the offences include two counts of aggravated serious criminal trespass in a non-residential premises - three counts of serious criminal trespass in a non-residential premises and three counts of theft - whether the sentence is manifestly excessive - consideration of the nature of the offences and the circumstances of the accused - sentence of seven years imposed - having regard to all the circumstances the sentence is not manifestly excessive - no error made out - whether the trial Judge failed to adequately consider the principle of totality - consideration of the principle of totality with regard to the facts of the case - personal circumstances of the appellant not taken into account - in particular medical circumstances - no error made out - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Griffiths v The Queen (1977) 137 CLR 293, considered.

R v LEE
[2006] SASC 146
Court of Criminal Appeal: Doyle CJ, Duggan & Anderson JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Anderson J. There is nothing that I wish to add to those reasons.
DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Anderson J.
ANDERSON J:
Background
In this matter the appellant appeals against a sentence imposed on him by a Judge in the District Court on 7 December 2005, after he pleaded guilty to several charges.
The appellant was charged and sentenced for offences committed at four different times. The first consisted of one count of aggravated serious criminal trespass in non-residential premises; the second consisted of one count of serious criminal trespass and one count of theft; the third consisted of one count of aggravated serious criminal trespass in non-residential premises and one count of theft, and the fourth consisted of one count of serious criminal trespass in non-residential premises and one count of theft. These events occurred between December 2002 and October 2004.
The first offence, aggravated serious criminal trespass (non-residential), involved the appellant entering the laboratory of Angas Park Fruits along with two others, with the intention of committing larceny. An employee of Angas Park Fruits disturbed the appellant and his accomplices, and they fled the scene. Those events took place on 11 December 2002. For this offence the maximum penalty was 20 years imprisonment.
On 28 October 2003 the appellant entered a laboratory building at the University of South Australia by forcing a window and then stole laboratory equipment valued at $42,389. The maximum penalty was 10 years for each offence.
On 29 August 2004, the appellant was again disturbed when he entered the premises of the Waite Institute and stole a quantity of laboratory glassware and scales. The maximum penalty for the aggravated serious criminal trespass (non-residential) was again 20 years imprisonment and 10 years imprisonment for the theft.
Finally, on 10 October 2004 the appellant entered a chemist shop via a broken window and stole drugs to the value of $427.80. The maximum penalty was 10 years imprisonment for the serious criminal trespass (non-residential) and 10 years imprisonment for the theft.
In addition to pleading guilty to all charges, the appellant also cooperated with the police in relation to various matters of interest to the police. In light of these factors, the trial Judge allowed a 50 percent discount and imposed sentences as follows:
1For the offence committed on 11 December 2002 – a starting point of three years reduced to one year and six months;
2For the two offences committed on 28 October 2003 – a starting point of three years reduced to one year and six months;
3For the two offences committed on 29 August 2004 – a starting point of four years reduced to two years; and
4For the two offences committed on 10 October 2004 – a starting point of four years reduced to two years.
His Honour made the sentences cumulative. The total for the four sentences, after reduction, was therefore seven years. His Honour held that there was no reason for any reduction on the basis of the principle of totality. His Honour then fixed a non-parole period of four years and six months.
Grounds of Appeal
The only grounds of appeal are:
1The sentence is manifestly excessive; and
2The learned Judge failed to adequately consider the principle of totality.
Ms Chapman, counsel for the appellant, indicated that there was no dispute concerning the method used by the learned Judge of imposing separate sentences for each incident and groups of incidents. It was not suggested that his Honour wrongly used s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
The submissions made by Ms Chapman were, first, that the starting point for each incident, and particularly the last two incidents, was too high. Her second submission related to a suggested failure by the learned Judge to properly take into account the personal circumstances of the appellant.
The submission relating to personal circumstances can be summarised as a suggested failure by the learned Judge to acknowledge an earlier successful attempt by the appellant at rehabilitation. It was submitted that that rehabilitation was in turn interrupted by a diagnosis of cancer, and then, that as a result of painkillers required for the cancer treatment, the appellant became addicted to drugs, which were expensive, and that in turn resulted in the commission of the offences so that the appellant could repay his drug-related debts.
The Appellant’s Personal Circumstances
The appellant was 36 years of age at the time of sentencing with a very poor record including previous convictions for building breaking and larceny. He had also been previously imprisoned for armed robbery. The offences committed at Angas Park Fruits, as referred to earlier, were committed within three months of the appellant having been granted parole in respect of the other matters. He has previously breached parole.
His Honour dealt with the health of the appellant which was a relevant consideration. His Honour said:
During your imprisonment, you completed a two-year personal coaching diploma by correspondence. You looked forward to working as a personal trainer upon your release, but a diagnosis of cancer made that impossible. In 1997, at the age of 28, you were diagnosed with testicular cancer following an acute episode of hepatitis B. You had a course of chemotherapy and other treatment which continued beyond your release from prison.
In 2001 you had surgical treatment for tumours in your throat and neck. In 2003 you were declared to be in remission from cancer, but in 2004 tumours were discovered in your stomach and lower bowel and you are on a waiting list for surgery. Your prognosis cannot be determined until the surgery has been carried out. Additionally, you are awaiting a liver transplant. You require medication to control your pain and manage your many problems.
The prosecution submitted that the treatment which you require is available in prison. There is no suggestion that this is not the case.
It was argued on behalf of the appellant that his ill health was relevant to sentence. It was submitted that the sentencing Judge had paid inadequate regard to the appellant’s ill health. It was also submitted that the learned sentencing Judge did not have proper regard to the link between the appellant’s drug-addiction and his diagnosis of cancer. It seems that the drug-addiction came about as a result of the medication prescribed for the cancer. The pre-sentence report indicates that the appellant had not used illicit drugs prior to the diagnosis of cancer. When he commenced using painkillers, he started using methylamphetamine, apparently to increase his energy levels. The drug taking resulted in debts which the appellant was unable to pay. The pre-sentence report indicates that the offending in each case was as a result of the appellant’s need to pay off these drug-related debts.
The pre-sentence report records the regret which the appellant has in relation to his present circumstances. He has an insight into the way his conduct has affected those near to him. He has a daughter from a relationship formed when he was released from prison in 1998. His daughter is seven years of age. He has been in a stable relationship with the mother of that child ever since, and the sentencing Judge found that the appellant and his girlfriend were committed to each other and wanted to live a normal relationship upon his release. He also has a 19-year-old son from a previous relationship. He did not have much to do with his son by reason of his many incarcerations, but the son is now also incarcerated in the same division as the appellant and the appellant has attempted to help his son during their time together in prison.
The Head Sentence
Having regard to the previous record of the appellant, in my view, it cannot be said that the starting point for the cumulative total of the head sentences, namely, 14 years, was excessive. On 4 October 1988 the appellant was given a head sentence of 16 years imprisonment with a non-parole period of 14 years for seven counts of armed robbery. As I have previously indicated, the overall record of the appellant also shows many offences for dishonesty including building breaking and larceny in a dwelling house.
The starting point would have been 14 years had it not been for the pleas of guilty and the cooperation previously referred to. As already indicated, counsel for the appellant does not complain about the sentencing Judge’s use of s 18A of the Sentencing Act nor of the sentencing Judge’s decision to make the individual sentences cumulative. It is simply suggested that the starting point for each incident was too high. It is my view that there is no error in the starting points for any of the four separate episodes of offending. When considered in conjunction with the appellant’s background of offending, I agree with Mr Pearce, counsel for the Director, that the intent behind each offence aggravated the seriousness of the offences. There is nothing erroneous in any of the starting points. There is no argument put about the extent of the discount for the plea and the cooperation with the authorities.
The Non-Parole Period
In relation to the non-parole period, it was argued that there is no indication in the Judge’s remarks that relevant personal circumstances were taken into account. It was submitted that the actual circumstances of a drug addiction following the treatment for cancer, should have involved a reduction greater than that allowed by the sentencing Judge. The “medical” information in the form in which it was placed before the sentencing Judge was really quite unhelpful on this particular issue.
It seems that a lot of the “medical” information put to the sentencing Judge came from information recorded in the pre-sentence report which in turn was a result of direct input from the appellant to those interviewing him. There was little expert medical information as such to assist in relation to the matters raised by the appellant.
A short report from a Dr Dayman merely informs that as a result of some bleeding the appellant was referred for an endoscopy and colonoscopy. That report was dated 5 September 2005. As I understood the submissions, the appellant was still waiting at the time of submissions for his prognosis.
The court adjourned the matter to enable further medical information to be provided. A report dated 27 April 2006 was obtained from the South Australian Prison Health Service and signed by Dr Chris Holmwood, the Clinical Director. The report states:
CURRENT HEALTH PROBLEMS
Mr Lee has the following health problems:
Amphetamine Dependence:
Mr Lee suffered from some withdrawal symptoms on admission and demonstrated some clinical features of psychosis. These subsided with anti-psychotic mediations.
Rectal bleeding and vomiting blood
In July 2005 Mr Lee was transferred to the Royal Adelaide Hospital Emergency Department for investigation of bleeding from the rectum and vomiting blood. He was stabilised in the Department and then referred on for further investigation and management as an outpatient.
In 2002 he had a colonoscopy at Mt Gambier Hospital which found only hemorrhoids [sic].
He was booked in for a recent colonoscopy on 12/1/06 at the Royal Adelaide Hospital but declined to undergo the bowel preparation and his appointment was cancelled. He has not had any further treatment or investigation of this problem.
Hepatitis C
Currently his liver functions tests are normal. He is not undergoing treatment for this.
Testicular or scrotal tumour (benign)
This was managed in Victoria and requires no follow up.
Depression
Mr Lee has a history of depression and has in the past attempted suicide and self harm several times. However at the moment is not receiving any treatment for this.
PROGNOSIS
Currently he has a reasonable health outlook.
He has some prospect of developing complications from the hepatitis C. (5-10% chance of cirrhosis at 20 years) He could seek treatment for his hepatitis C which could result in a cure. (success rates 50-80%) This can be arranged while he is in prison.
His gastrointestinal bleeding is probably due to his haemorrhoids but ideally he should undergo a repeat colonoscopy.
Treatment for amphetamine dependence generally requires cognitive behavioural therapy, and given his long history of drug use, possibly a therapeutic community approach. Neither of these are available in prisons, but can be arranged in the community.
His depression will be an ongoing problem. Treatment for this is available both in prison and outside.
There is no suggestion at the moment that he cannot receive whatever treatment is necessary from within the prison system and also from outside in relation to his depression. The prognosis is certainly not as bleak as painted in the pre-sentence report.
The appellant argued that although the sentencing Judge took into account aspects of the appellant’s medical condition in consideration of whether there should be a Griffithsv The Queen (1977) 137 CLR 293 type remand, he did not consider those matters when fixing the non-parole period. It is true that he did not mention this aspect specifically when dealing with the non-parole period but he has dealt with it in some detail in his reasons as set out earlier in paragraph [16] of these reasons. In my view the learned sentencing Judge has adequately taken these factors into account.
The remarks of the sentencing Judge set out earlier at paragraph [16] of these reasons indicate that the Judge took into account that the appellant needed surgery and a liver transplant. The report now available shows that his liver function is normal and that he is not undergoing treatment. In addition his testicular cancer requires no follow-up. On that basis it is my view that the Judge took a charitable view of the appellant’s problems now that his overall health situation has been more fully explained.
Conclusion
The offences for which the appellant has been sentenced represent four episodes of serious criminal conduct over a period of approximately two years. Because of the appellant’s lengthy criminal history including prior convictions for similar matters, it is my view that neither the head sentence nor the non-parole period can be regarded as manifestly excessive.
I agree with the learned Judge that after having considered the four groups of offences individually and having fixed a total of seven years, there was no need to make any further reduction on account of the principle of totality. I consider that the non-parole period of approximately 68 percent of the head sentence is appropriate in the circumstances.
I would dismiss the appeal.