R v McLean

[2013] SASCFC 144

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCLEAN

[2013] SASCFC 144

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

20 December 2013

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  - GENERALLY

The appellant who suffers from dwarfism with consequential ill health and disability, was sentenced on 2 September 2013 in the District Court to imprisonment for a term of two years and 11 months with a non-parole period of 13 months after having pleaded guilty in the Magistrates Court to one count of arson contrary to s85(1) of the Criminal Law Consolidation Act 1935 (SA). The sentence was not suspended and it commenced upon the appellant’s bail being revoked at the conclusion of sentencing submissions on 30 August 2013.

On appeal, the appellant complained that the Judge erred in failing to find good reason to suspend the sentence of imprisonment. In particular, the appellant complained that the Judge failed to consider whether it would be unduly harsh for the appellant to serve time in prison because of his ill health and disability and failed to consider whether suspension was warranted pursuant to s38(2c) of the Criminal Law (Sentencing) Act 1988 with or without a condition of home detention as envisaged by that sub-section.

The issues on appeal included: whether the Judge applied the correct test when considering whether or not to suspend; whether the Judge paid sufficient regard to the power available pursuant to s38(2c); and whether imprisonment for this appellant is to be characterised as unduly harsh by reason of his ill health and disability within the purview of s38(2c).

Held (Nicholson J with Kourakis CJ and Peek J agreeing):

1.  Appeal allowed.

2.  The sentence imposed in the District Court set aside.

3. The appellant is re-sentenced to a term of imprisonment for two years and five months with a non-parole period of ten months to be suspended on the condition that he enter into a bond to be of good behaviour in the amount of $1000, for a period of two years with conditions, including a condition that he serves a period of six months home detention imposed in accordance with s38(2c) of the Criminal Law (Sentencing) Act 1988 (SA).

Criminal Law Consolidation Act 1935 s42, s85; Criminal Law (Sentencing) Act s10, s38; Parliamentary Debates South Australia, Legislative Council, 18 November 1998 at 208, referred to.
R v Malesevic [1999] SASC 321; Kells v Police [2007] SASC 224; R v Penney [2012] SASCFC 16; House v The King (1936) 55 CLR 499; R v Dorning (1981) 27 SASR 481; R v Smith (1987) 33 SASR 587; R v Ireland (2012) 114 SASR 438; R v O’Toole [2013] SASCFC 18; Wessling v Police (2004) 88 SASR 57; R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530; R v Spong (2008) 100 SASR 55; R v Hallett [2002] SASCFC 143; R v Godwin (2001) 80 SASR 195; McNamara v Barrett [2001] SASC 354, considered.

R v MCLEAN
[2013] SASCFC 144

Court of Criminal Appeal:  Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ.

1. On 22 November 2013 the Court announced that the appeal would be allowed and the appellant resentenced.

2. I reached that view for the reasons given by Nicholson J.  I would impose the sentence proposed by Nicholson J. 

   PEEK J.

3. I would allow the appeal.  I agree with the orders proposed by Nicholson J and with his reasons.

   NICHOLSON J.

   Introduction    

4. On 22 November 2013, at the conclusion of the hearing of this appeal against sentence for the offence of arson, the Court was unanimously of the view that the appeal should be allowed and the appellant resentenced.  The following orders were made:

   (i)the appeal be allowed;

   (ii)the sentence imposed in the District Court be set aside; and

   (iii)the appellant be remanded in custody.

   A home detention bail enquiry report was ordered with respect to particular premises, the relevant details of which were to be provided to the Registry by counsel for the appellant.

5. On 28 November 2013, the appellant was granted home detention bail pending resentencing by this Court following the hearing or receipt of such further submissions relevant to resentencing as counsel may be instructed to put. 

6. At the time the appeal was allowed, the parties were advised that reasons would be published at a later date.  These are my reasons for joining in the order of the Court allowing the appeal. 

7. Following a plea of guilty in the Magistrates Court the appellant was committed to the District Court to be sentenced for one count of arson contrary to s85(1) of the Criminal Law Consolidation Act 1935.  He was sentenced on 2 September 2013 to imprisonment for a term of two years and 11 months with a non-parole period of 13 months.  The sentence was not suspended and it commenced upon the appellant’s bail being revoked at the conclusion of sentencing submissions on 30 August 2013.  With respect to both the head sentence and the non-parole period, the Judge allowed credit of one month on account of the period during which the appellant had been remanded in custody following his arrest on 25 October 2012.  The appellant was released on home detention bail on 23 November 2012.  However, no credit was allowed for the period of a little over nine months spent on home detention bail, notwithstanding the discretion available to the sentencing Judge.[1]

   [1]    A sentencing court may but is not obliged to give some credit for time spent on home detention bail: R v Malesevic [1999] SASC 321; Kells v Police [2007] SASC 224; R v Penney [2012] SASCFC 16 at [24]-[27] (Gray J) and the authorities there discussed.

8. On appeal, the appellant complained that the Judge erred in failing to find good reason to suspend the sentence of imprisonment. In particular, the appellant complained that the Judge failed to consider whether it would be unduly harsh for the appellant to serve time in prison because of his ill health and disability and failed to consider whether suspension was warranted pursuant to s38(2c) of the Criminal Law (Sentencing) Act 1988 with or without a condition of home detention as envisaged by that sub-section. 

9. The power of the Court to suspend a prison sentence is governed by s38 of the Criminal Law (Sentencing) Act 1988 which, insofar as is material to this appeal, is in the following terms.

   38—Suspension of imprisonment on entering into bond

   (1)Subject to this section, if a court has imposed a sentence of imprisonment on 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.

   (2)… .

   (2a)… .

   (2b)… .

   (2ba)… .

   (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).

   (3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.

   (4)… .

10. The question of whether or not a sentence of imprisonment might be suspended whether the power under s38(1) or s38(2c) is invoked involves the exercise of a discretion. The enquiry as to whether or not this discretion, in any particular case, has been wrongly exercised is governed by the well known approach summarised by a majority of the High Court in House v The King.[2]

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellant court consider, that if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution of his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 

    [2] (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ).

11. Arson is a serious crime.  Where, as in this case, a fire deliberately lit causes damage to a building, the prescribed maximum penalty is life imprisonment.[3]  As at the time the appellant committed the offence (24 October 2012) an expressly stated primary policy of the criminal law in relation to arson was that the sentence imposed should “bring home to the offender the extreme gravity of the offence”.[4]  

    [3]    Criminal Law Consolidation Act, s85(1).

    [4]    Criminal Law (Sentencing) Act 1988, s10(3) as it then stood. Sub-section (3) in that form has since been repealed and replaced with sub-section (2)(d) which requires a court to give proper effect, inter alia, to “the need to protect the community from offending of such extreme gravity by ensuring that paramount consideration is given to the need for general and personal deterrence…” The Judge quite properly referred to and had regard to s10(3) in its original form.

    The appellant’s personal circumstances in brief

12. The appellant suffers from dwarfism which renders him quite disabled.  He is now 42 and has a complex developmental history resulting from his dwarfism.  The ordinary physical manifestations of his dwarfism result in very significant challenges and difficulties for the appellant when attempting to cope on a daily basis with environments that do not specifically cater for those physical manifestations. In addition, the appellant has developed serious physical and psychological ill health which, in many respects, has been caused by his incapacity to cope with the environments in which he has been required to live. 

13. The appellant requires a specially modified domestic environment, including but not limited to fittings and furniture, in order to accommodate his dwarfism and enable him to live comfortably.  He requires the use of various mechanical aids to counter the effect of having disproportionately short arms and legs.  A very important example is his need for permanent access to a particular mechanical device to assist with toileting.  Until the age of 31 the appellant had been in receipt of minimal, if any, disability access support.  To this point he endured the daily battle of having to use furniture that was too large.  Repeated jarring caused by jumping on and off toilets, chairs, beds and other furniture has damaged the appellant’s spine.  To date the appellant has had three separate spinal operations to fuse vertebra so as to alleviate chord and nerve impingement.  He has developed a drooping left foot and now needs to use a leg brace.  After each spinal operation the appellant was bed bound for two months and needed to undertake extensive and difficult physical rehabilitation.  Medical advice is to the effect that he is very likely to become a paraplegic.  Further jarring caused by having to survive in unmodified physical environments, such as a custodial institution presents, exposes him to the risk of an acute and serious exacerbation of his back pathology.  At the very least it serves to hasten the ongoing degeneration of his back and its function.  The appellant requires powerful analgesic medication of a type not ordinarily available in the custodial environment.

14. According to the report of the psychologist, Mr Balfour, which was before the Judge, the appellant is prone to depression as a consequence of his dwarfism and dysfunctional family background.  At 33 he attempted suicide by overdosing on prescription drugs.  The appellant is angry and frustrated because of his social, sexual and physical limitations resulting from his dwarfism. 

15. Mr Balfour has described in detail how difficult and challenging the appellant’s life has been and still is.

    The psychological profile is that of a 42 year old man of low-average intelligence with adequate literacy and numeracy skills.  He has attained a Year 9 educational standard.  He is motivated to work but has never had an opportunity to join the work force due to suffering height discrimination and medical complications.  He has low self-esteem.  He has limited social skills due to a life time of being socially ostracised and teased because of his disability.  He has poor coping skills.  He has a low tolerance of stress and frustration.  He has a poor body image due to being short and overweight.  He is prone to feeling depressed.  He once made a suicide attempt of high lethality and engaged in self-lacerating behaviour.  He is a psychologically inadequate man.  He does not suffer from any major psychopathology.  He also suffers from a chronic pain syndrome for which he is prescribed powerful opiate-based analgesics (Oxycontin).

    Mr McLean has had a very difficult life.  He had a violent alcoholic father who psychologically and physically abused him, and rejected him because of his dwarfism.  He had a violent brother, who is six feet tall, who assaulted him. His mother became his full-time carer and became overprotective of him.  He was humiliated, tormented and teased at school, leading to him prematurely discontinuing his education at the age of 15 years during Year 9.  He has suffered height discrimination which has led to him becoming chronically unemployed.  He has been unsuccessful in establishing a relationship with a woman.  He now suffers from sexual impotence due to having suffered spinal damage caused by spinal surgery.  He has experienced hardship on a daily basis with completing basic daily living skills such as toileting hygiene.  He has complex spinal problems which have required surgery and lengthy rehabilitation.  He is at-risk of eventually developing paraplegia.  He also suffers from bilateral deafness.  He suffers from significant disability and chronic pain.  He has resorted to cannabis and alcohol abuse to manage his pain, to assist him to sleep, and to escape his problems.

    The offending

16. The appellant and one of the victims of the offending, MK, lived in adjoining housing trust home units.  They shared, between the two units, a common driveway and a common carport.  The appellant took pride in his unit which had been specially modified to meet his needs.  It had taken the appellant quite some time to obtain this modified housing trust home unit in which to live.  MK owned a large vehicle and also used the carport to store some of her personal property.  The vehicle restricted access to the appellant’s unit and the stored possessions, in the appellant’s view, were unsightly and untidy. 

17. The appellant and MK were unsuccessful in resolving the appellant’s concerns in an amicable way and over time the appellant became angry, depressed and frustrated about the state of the carport and MK’s failure to remove her property.  The Judge in his sentencing remarks has succinctly summarised what eventuated.[5]

    You had been drinking heavily in the hours leading up to your crime.  You knocked on [MK’s] door early in the evening.  She came to the door and you abused her and you threatened her through the screen door for about 20 minutes.  It is plain that you wanted her to take your threats seriously and, as a parting shot, you announced your intention to set fire to her unit.

    You tried to compose yourself, but you were still agitated when you returned about 20 minutes later and you hurled more abuse at her.  You then set fire to the possessions that she had stored in the carport.  The fire spread to the ceiling of the carport and ultimately into her unit.  You were reckless as to that possibility when you lit the fire. 

    Fire services eventually attended and the blaze was extinguished. 

    [5]    Appeal Book at 70.

18. The appellant panicked when he saw the fire to be getting out of control and made some attempt to extinguish it, but unsuccessfully.  A significant amount of damage was caused to MK’s premises and to her vehicle.  Damage was caused to the appellant’s own unit.  The cost of repairs to the two units was in the order of $85,000.

    The Judge’s reasons

19. The Judge described and characterised the appellant’s offending behaviour in a way that, with respect, fairly and properly reflected aspects of the offending that were mitigatory insofar as the appellant’s moral culpability is concerned.  The Judge said this.[6]

    You had become depressed, frustrated and angry over what was happening and you did what you did in order to destroy the possessions which your victim had stored in the carport and you say that you never intended the fire to get out of hand.  Indeed, you made some attempt to put the fire out.  You also say that you were highly intoxicated, and although your judgment was plainly compromised and your subjective culpability is thus less than it otherwise might have been, by your plea you have admitted that you knew what you were doing, that you knew that it was wrong and that you were reckless.  Your crime was not the culmination of a well thought out plan and was very much on the spur of the moment. 

    Your behaviour can be correctly characterised as aberrant.

    [6]    Appeal Book at 71.

20. The Judge then summarised the appellant’s personal circumstances which, on any analysis, engender much sympathy, and referred to a number of personal references which had been provided during sentencing submissions, including from former neighbours, all of which were to the effect that the appellant was held in high regard.  The Judge was satisfied that the appellant would find prison a difficult burden to bear because of his disabilities but that these disabilities could be adequately managed within the prison system.

21. The Judge recognised that the appellant had accepted responsibility for his crime and that he had good insight into its seriousness and its effects on MK.  Without stating as much in terms, the Judge appeared to be satisfied that the appellant’s prospects of rehabilitation were good.  Alcohol was identified as a main issue; the appellant was aware of this and had taken positive steps by abstaining from alcohol and cannabis whilst on bail. 

1. To this point the Judge had expressly identified features that served to reduce, to a degree, the appellant’s moral culpability and to demonstrate that the appellant was contrite had insight and good prospects for rehabilitation.  

2. The Judge then moved to the other side of the ledger so to speak.  His Honour described the crime as very serious and observed that in addition to causing physical damage, the appellant caused the victim, MK, to suffer serious and protracted emotional and psychological after effects.  The Judge referred to the appellant’s criminal record and plainly viewed it as significant.  His Honour appeared to place some emphasis on the fact that the appellant had served a term of imprisonment for the offence of endangering life by discharging a firearm in 1995 – “this is not the first occasion you have created risks by acting recklessly”.  However, it must be understood that this offence occurred some 18 years ago when the appellant was 24 or so.  Whilst the appellant has committed further offences since then (in 1995, 1999 and 2000) all of these resulted in only either a fine or no recorded conviction.  The arson offence presently under consideration is the only offence committed by the appellant during the last 12 years or so. 

3. After nominating a head sentence of three years reduced from four years on account of the plea,[7] the Judge turned to the question of suspension and concluded:

   Your crime is too serious to allow for good reason to suspend your sentence to be found however, the personal mitigating factors which operate in your favour combine together to allow for a non-parole period which is shorter than it otherwise might have been and I fix a non-parole period of 14 months. 

   [7]    As earlier mentioned, this head sentence of three years was itself reduced by one month on account of time spent in custody.

   The appellant’s submissions in brief

4. The appellant submitted that the Judge’s discretion as to whether or not the sentence imposed should be suspended miscarried. In support of this submission the appellant raised two specific complaints. First, it was submitted that the language employed by the Judge (as quoted immediately above) indicated that the Judge applied the wrong test. The appellant’s second complaint was to the effect that the appellant’s ill health and disabilities were such that the Judge should have considered whether it would be unduly harsh for the appellant to serve any time in prison and should have decided to suspend the sentence of imprisonment for that reason in reliance on or by application of s38(2c) of the Criminal Law (Sentencing) Act. 

5. In support of this second argument, counsel for the appellant read an affidavit of the appellant[8] in which he deposed to events concerning his day to day living arrangements since being taken into custody and which, counsel submitted, demonstrate that the appellant’s disabilities have presented peculiar difficulties for the prison authorities such that they have not been able to ensure that the appellant has the necessary aids and modified environment so as to minimise the possibility of further damage to his spine nor the medication needed for adequate pain relief. 

   [8]    Affidavit of Aaron Scott McLean sworn 19 November 2013.

6. Counsel for the appellant also, in support of the appeal, read an affidavit sworn by the appellant’s solicitor.[9]   Exhibited to that affidavit is a letter dated 18 November 2013 from the Acting Director of the SA Prison Health Services and an email dated 20 November 2013 from a Nurse Management Facilitator of SA Prison Health Services which corrected an error in the Acting Director’s letter.  The purpose of this correspondence is to identify the extent to which the appellant’s complex disability and health concerns are capable of being monitored and managed within the prison system.

   [9]    Affidavit of Tricia Marie Johnson sworn 21 November 2013.

7. The two affidavits were received by the Court de bene esse with a view to the Court considering, if it proved necessary, whether or not these two affidavits ought to be admitted as fresh evidence on the appeal in accordance with the well known requirements as set out, for example, in R v Dorning.[10]

   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 of 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…

   [10] (1981) 27 SASR 481 at 485.

8. In the present case, the appellant has sought to rely on the two affidavits “for the purpose of showing the true significance of facts which were in existence at the time of sentence”.[11]  In R v Smith,[12] King CJ said this.

   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.

   [11]   R v Smith (1987) 33 SASR 587 at 588.

   [12] (1987) 33 SASR 587 at 588.

9. At the time that counsel for the Director of Public Prosecutions filed her written outline of argument, she was on notice of the contents of the appellant’s affidavit and that a letter from the Prison Medical Service had been obtained by the appellant’s solicitor although, it would appear, she was not on notice of the letter’s full contents.

10. Counsel for the Director indicated, in her written outline that, given the circumstances of this case, it would be in the interests of justice for the Court to receive this material.  During oral submissions, counsel’s position changed slightly.  She submitted that the evidence proposed by the appellant was incomplete and insufficient to enable the Court to make a proper assessment of the capacity within Correctional Services to properly accommodate the appellant’s physical disabilities.  Counsel submitted that a report would need to be obtained from the Department for Correctional Services, itself, before the Court would have a complete picture in this respect.  As a result, and as I have indicated, the two affidavits were received de bene esse.  Liberty was reserved to the Director to obtain and provide to the Court a response from the relevant officer in the Department for Correctional Services. 

11. However, given the basis upon which the Court decided, at the time, to allow the appeal, it is not necessary to determine whether each of the affidavits satisfies the requirements for fresh evidence and is to be admitted as such.  The Court formed the view that the appeal should be allowed independently of that material.  As such, the two affidavits relied upon by the appellant together with such other material in response that the Director might be permitted to rely on is to be received as relevant to the question of resentencing.

    The respondent’s submissions in brief

12. The respondent reminded the Court of the serious nature of the offence of arson, the serious nature of the circumstances in which this particular offence had been committed with, in particular, its attendant risks to property and person,[13] the appellant’s criminal antecedents and the importance of personal and general deterrence.  The respondent also submitted, correctly, that whilst the ill health of an offender is relevant to the fixing of a proper sentence, it is a matter which a court will treat with circumspection.[14]  Ordinarily, ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be of greater burden on the defendant by reason of his or her state of health or where there is a serious risk of imprisonment having a gravely adverse effect on his or her health.[15]  It ordinarily will be expected that a prisoner’s medical problems can be managed adequately in the custodial environment.  However, there will be limits as to what can reasonably be expected to be done by prison authorities.[16]

    [13]   MK and her then partner were inside MK’s unit at the time of the fire.

    [14]   R v Smith (1987) 44 SASR 587 at 589, “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.”

    [15]   R v Smith (1987) 44 SASR 587 at 589.

    [16]   R v Ireland (2012) 114 SASR 438 at 38.

13. Counsel submitted that the mental and physical health problems of the appellant were canvassed at length in the report of the psychologist, Mr Balfour, provided to the Judge and were referred to by the appellant’s counsel during submissions.  It is apparent from the transcript of sentencing submissions and from the sentencing remarks that the Judge was aware of the material canvassed in the Balfour report.[17]  It was submitted that the Judge was entitled to sentence on the basis that the appellant could and would be appropriately cared for by the authorities and that there was no reason for the Judge to assume that the appellant’s experience in prison would be “unduly harsh”. 

    [17]   AB 61 and AB 71.

    Resolution of the appeal

14. I start with the appellant’s first complaint that the Judge applied the wrong test. Sub-section 38(1) of the Criminal Law (Sentencing) Act confers a discretion to suspend if the Court “thinks that good reason exists for doing so.” The Court of Criminal Appeal has recently provided the following explanation of s38(1).[18] 

    This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[19]  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[20]  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[21]  The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

    [18]   R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed).

    [19]   Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J).

    [20]   R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

    [21]   R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

15. The language used by the Judge in explaining his reason to exercise the discretion against suspension was, at the least, economical.  When read literally the expression “your crime is too serious to allow for good reason to suspend…” is tantamount to saying that the crime of arson as committed by the appellant in this case was so serious as to eliminate the possibility of suspension, that is, the nature of the crime was such that no circumstances of mitigation and no personal circumstances no matter how powerfully in favour of suspension would be sufficient for good reason to suspend to be found. 

16. If this was what the Judge intended to say then, as the appellant contends, the wrong test for suspension would have been applied.  The appellant’s contention, based on a literal reading of the language used, also gains support from an apparent linking, according to the language used by the Judge, of the decision not to suspend with the determination of the non-parole period.[22]  What must be avoided is the engaging in a sentencing process which, consciously or sub-consciously, treats the decision whether or not to suspend and the decision whether or not to set a low non-parole period so as to reflect the personal considerations in the matter, as alternatives.  Similar considerations which inform a court in setting a low non-parole period must also be considered, and again, at the time of determining whether or not to suspend the sentence and notwithstanding that a low non-parole period might have been ordered. 

    [22]   To consider and decide the question of suspension before setting a non-parole period can but not necessarily will be indicative of error, see the discussion by Gray J (with whom reasons David J agreed) in R v Spong (2008) 100 SASR 55 at [56]-[59].

17. However, and notwithstanding the appellant’s submission, I am not satisfied that the Judge committed the error of applying the wrong test with respect to suspension, at least in this respect.[23]

    [23] I take a different view with respect to whether the Judge properly attended to the discretion available pursuant to s38(2c) as explained later in these reasons.

18. A common formulation when explaining the exercise of discretion not to suspend a prison sentence is along the lines – the offending, in the circumstances, is so serious and (if pertinent) the need for personal and general deterrence in this case is such as to outweigh the personal factors otherwise in favour of suspension.  Such a formulation is not to be used merely as some sort of incantation.  What is required is that the sentencing remarks as a whole, when read in the context of the parties’ respective submissions, demonstrate that the correct approach has been adopted. 

19. In this case, the Judge outlined in some detail the personal considerations relevant to the question of suspension.  Furthermore, the appellant was sentenced on the morning of Monday 2 September 2013 after submissions were made on the previous Friday.  During those submissions the Judge indicated that he had read Mr Balfour’s report twice. 

20. This was a case where there were quite powerful considerations in favour of suspension.  The circumstances of the offending in this case, whilst serious, were not such as to place the appellant’s offence towards the upper end of seriousness for this type of offence and prison sentences for arson have been suspended in the past.[24]  In addition, the appellant’s personal considerations in support of a favourable exercise of the discretion to suspend were strong.  These included, in particular, his lack of any serious criminal antecedents from 1995 to present, his contrition and insight into the offending and his responsibility for it and the appellant’s poor health (psychological and physical) and significant disabilities which the Judge recognised would cause the appellant to find prison a difficult burden to bear. 

    [24]   See, for example, R v Hallett [2002] SASCFC 143, R v Ireland (2012) 114 SASR 438.

21. None of this escaped the Judge and I am satisfied that when considering whether or not to suspend the prison sentence he imposed, he did take these matters into account.  Accordingly, I am not satisfied that the Judge applied the wrong test, notwithstanding his economical use of language. 

22. However, that takes me to the second limb of the appellant’s complaint concerning the Judge’s failure to suspend the sentence, that is, that the Judge failed to have sufficient or any regard to s38(2c) of the Criminal Law (Sentencing) Act and, in particular, to the additional sentencing option contained therein of imposing home detention as a component of the sentence. 

23. The Judge made no reference in his remarks to s38(2a). In fairness to the Judge, it was not referred to and apparently not relied upon during sentencing submissions by the appellant’s counsel who was not counsel on the appeal.

24. The authorities record two views as to the effect of s38(2c). The two views were described by White J in R v Ireland.[25] 

    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:[26]

    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.[27]

    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.

    [25] [2012] SASCFC 120 at [43]-[45].

    [26] [2001] SASC 295; (2001) 80 SASR 195.

    [27] Ibid at [27]; 200. See also McNamara v Barrett [2001] SASC 354 at [18].

25. Like White J in R v Ireland[28] I consider that, in most cases, there will be little practical effect whether one view is preferred over the other.  This is because the effect of serving time in custody on a person’s health has always been a relevant matter in sentencing.[29]  White J, in R v Ireland, went on to observe the following.[30]

    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).[31] 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.[32]

    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.

    [28] At [46].

    [29]   As both White J in R v Ireland at [46] and King CJ in R v Smith at 589 have noted.

    [30]   At [47]-[48].

    [31] A home detention condition is not included in the conditions listed in s 42 of the CLSA which may be included in a bond.

    [32]   South Australia, Parliamentary Debates, Legislative Council, 18 November 1998 at 208.

1. I am satisfied that the Judge did overlook s38(2c) when considering whether or not to suspend the sentence he imposed. There is nothing in his Honour’s remarks nor in the sentencing submissions to suggest the contrary. I agree with White J that the power conferred on a sentencing court by s38(2c) is a matter which is relevant to the decision itself whether or not to suspend. Leaving aside s38(2c), the question of suspension based on the considerations that the Judge did take account of was, at worst for the appellant, a finely balanced one. As such and given, in particular, the difficulties that this appellant faces when forced to live in an environment that is not in general terms modified to suit his particular disability and the restrictive and structured environment that a custodial institution will necessarily impose, the power to order home detention as part of a prison sentence and as a condition of suspending that prison sentence may well have tipped the balance towards suspension.

2. The Judge erred in failing to take into account an important consideration material to the question of whether or not the sentence should be suspended and as such the Court should revisit at least the issue of suspension.  However, the appeal is against the sentence as imposed and in the circumstances the whole of the sentence had to be set aside and the appellant resentenced.

   Resentence

3. I would sentence in accordance with the Judge’s starting figures of three years for the head sentence and 14 months for the non-parole period about which there was no complaint and nor could one have been justified.  I would reduce each by one month for time spent in custody prior to sentencing (as did the Judge) and by a further three months on account of the time spent in custody following sentencing and before being granted home detention bail by the Full Court on 28 November.  I would allow a further three months credit with respect to the head sentence only for the time spent on home detention bail prior to being sentenced by the Judge and after being admitted to home detention bail on 28 November 2013 until today.  The low starting non-parole period of 14 months, in my view, already sufficiently accommodates the time spent on home detention bail.  This would result in a head sentence of two years and five months with a non-parole period of ten months. 

4. I turn to the question of suspension. On 16 December 2013 the parties made further submissions directed towards the resentencing and, in particular, the question of suspension. Counsel for the respondent maintained opposition to a suspended sentence. As I have already indicated, in my view, the question of suspension when considered independently of the power available under s38(2c) of the Criminal Law (Sentencing) Act was a finely balanced one.  Furthermore, given the appellant’s ill health and disability, I am satisfied that it would be unduly harsh for the defendant to serve time in prison.  In R v Godwin[33] Prior J (with whom Nyland and Lander JJ agreed) said this.

   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 s38(2c) a ground for suspending a sentence of imprisonment. That provision was incorporated in 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 an appellant to serve any time in prison.  It also limits the period of detention to no more than 12 months.

   [33] (2001) 80 SASR 195 at [27].

5. Counsel for the Director argued that it should not be seen as unduly harsh for the appellant to spend time or further time in prison.  Reliance was placed, in particular, on two letters provided by or on behalf of the Chief Executive of the Department of Correctional Services dated 26 November and 6 December 2013. 

6. In the first letter it is conceded that a number of the health issues raised by the appellant had not been fully addressed by the Department or the Prison Health Service but this was because not all of the issues had been raised by the appellant.  It would seem that a number of the appellant’s concerns only came to the attention of the Department through the affidavit sworn by the appellant on 13 November 2013.  As a result, and as at 26 November 2013 the SA Prison Health Service commenced a thorough assessment of the appellant’s disabilities in order to establish his medical and equipment requirements while in prison.  Once these requirements were to be identified, the Chief Executive of the Department is confident that the appellant’s needs could be met in the prison environment. 

7. In the follow up letter of 6 December 2013, further detail is provided as to the extent to which the appellant’s particular needs could be accommodated in the prison environment.  However, the appellant was released on home detention bail on 28 November 2013.  As a consequence, the thorough assessment of his disabilities that was to be undertaken to establish his specific requirements could not be completed.  As a further consequence, any medical services required by the appellant will now be provided through the general public health system.  As such, the SA Prison Health Service “would not conduct the assessment referred to … unless [the appellant] is returned to prison as this is out of the scope of their business”.  The Chief Executive, in this second letter, reiterated the previous advice provided by the Department for Correctional Services and the SA Prison Health Service that the appellant’s needs could be met within the prison system, should he be returned to prison and once the thorough assessment were to be completed. 

8. I have reviewed the particular day-to-day difficulties experienced by the appellant within the prison environment as described in his affidavit and in the submissions by both counsel, together with the correspondence received from the Department of Correctional Services referred to above and the correspondence received by the appellant’s legal advisers, exhibited to the affidavit of the appellant’s solicitor, Ms Johnson.  I accept that in a number of respects the appellant’s needs can be met and, in particular, a stool can be provided once appropriate accommodation were to become available (a single disability cell) and the particular toileting aide that he requires can be made available. 

9. However, there is much to be said for the submission put by the appellant’s counsel to the effect that prisons must run according to a routine and according to a strict system, both of which are suitable for the average prisoner but which do not address, by and large, the needs of this particular appellant.  The problem is greater than simply the environment offering the appellant a more uncomfortable or even a more painful existence than it offers to other prisoners.  The prison environment, unless substantially modified, will cause more than discomfort, embarrassment and humiliation.  There is a real prospect that it will significantly exacerbate the appellant’s chronic and worsening back problems.  Furthermore, as the Chief Justice alluded to during argument, there is a real risk (as the appellant’s experience to date has already shown) that the day-to-day operational requirements and day-to-day perceptions of guards and the like can result in a failure to consistently implement any detailed and carefully worked out plan, provided by the Health Service for the management of this appellant. 

10. In my view, and notwithstanding the best intentions and efforts by Correctional Services, imprisonment has been and would continue to be a greater burden on the appellant by reason of his physical condition and significantly so.  This greater burden arises, in part, because no matter what efforts Correctional Services might make, the appellant will not have access to an environment which is suitable or appropriate to his physical and his medical needs.  Whilst Corrections are likely to be able to provide his special aides, at least within his own cell environment it would not be possible for the prison environment generally to be modified sufficiently to accommodate the appellant’s dwarfism.  This would have the effect of inappropriately restricting his activities and likely risking further exacerbation of his spinal problems. 

11. The fact that the appellant has now spent in total four months in custody with reference to this matter can be expected to have a salutary effect on him and to reduce, if not eliminate, the need for a personal deterrent effect, normally sought from an immediate custodial sentence. 

12. As I have already indicated, the appellant’s personal circumstances generally and the circumstances of the offending also lend support to a favourable exercise of the discretion to suspend.  However, the appellant’s dwarfism and consequential ill health and disabilities leading to the conclusion that it would be unduly harsh for him to serve time in prison strengthens the case for suspension considerably.  This is an unusual case and the conclusion to suspend the sentence has been reached after exercising significant circumspection, as is required of the Court when being asked to take account of ill health and disability in the context of imposing a prison sentence.

13. I would suspend the head sentence of two years and five months with a non-parole period of ten months that I have proposed.  I would do so on condition that the appellant enter into a bond to be of good behaviour in the amount of $1,000 and for a period of two years.  In addition to the usual ones I would include the following conditions.

    1The appellant is to be under the supervision of a community corrections officer for the two year period. 

    2The appellant is to serve a period of six months home detention imposed in accordance with the power available pursuant to s38(2c) of the Criminal Law (Sentencing) Act. That six month period of home detention is to commence today.

    3The appellant will be subject to home detention and obey the lawful directions of any supervisor designated to supervise his home detention.

    4Subject to the next condition, the appellant is to remain at 2 Phillips Street, Port Augusta throughout the period of home detention. He must not leave that address at any time (except for the purpose of undertaking employment as approved by the community corrections officer assigned to supervise the appellant) unless the appellant has the prior permission of his assigned community corrections officer to be absent for a particular purpose or to avert the risk of injury or death to himself or to others or to obtain necessary medical or dental treatment.

    5If the appellant obtains permission from his assigned community corrections officer to reside at a new address he can do so, in which case these home detention sentence conditions will apply to the appellant’s occupancy at the new address.

    6The appellant will wear an electronic transmitter and comply with the rules of electronic monitoring for the six month period during which he is on home detention.

    7During the period of home detention, the appellant will not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and will submit to any breath test or urine analysis as directed by a community corrections officer and sign all required forms and comply with the requirements of the testing procedures.

    8During the period of home detention, the appellant will present himself at the front door of his home detention address at the request of his assigned community corrections officer or delegate and will respond to any call at a telephone at that address at any time unless absent in accordance with the conditions of his home detention sentence. 

    9In the event that any practical impediment arises with respect to the availability of home detention premises suitable for the appellant or with respect to the compliance by the appellant with any of the conditions of home detention the appellant or the Director of Public Prosecutions has liberty to apply to a judge of this Court for further directions and, if necessary, variation of these home detention conditions.

    10The appellant is not to contact or attempt to contact, either directly or indirectly by any means whatsoever, Merveen Edith Krause, nor assault, harass, threaten or intimidate her, during the period he is on home detention.