R v Patzel - [2012] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PATZEL
[2012] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
20 September 2012
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Permission to appeal against sentence - the defendant, who suffers from an addiction to amphetamines, pleaded guilty to possession of methylamphetamine for supply - District Court Judge imposed a sentence of three years and eight months' imprisonment with a non-parole period of two years and two months' imprisonment - sentence suspended.
Suspended sentence later revoked by another District Court Judge for breaches of the conditions of the bond.
Whether the sentence was manifestly excessive - whether the sentence was grossly disproportionate to the breach - whether special circumstances exist to justify reduction of the term of the suspended sentence.
Fresh evidence of defendant's attempts to seek counselling and rehabilitation admitted.
Held: Revocation of the suspended sentence was appropriate having regard to the defendant's continual breaches over a lengthy period, and numerous warnings.
Having regard to the defendant's current employment, his insight into his drug addiction, and his willingness to submit himself to a treatment regime at Karobran Farm, special circumstances exist justifying a reduction of the non-parole period - the non-parole period is to be reduced to six months' imprisonment to enable the defendant to undergo treatment as soon as possible.
Criminal Law (Sentencing) Act 1988 (SA) s 58, referred to.
R v Buckman (1988) 47 SASR 303, applied.
R v Kikidis (2012) 112 SASR 148; R v Dorning (1981) 27 SASR 481; Orchard v Orchard (1972) 3 SASR 89; R v Pickard [2011] SASCFC 134; The Queen v McIntee (1985) 38 SASR 432; Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593; Arnold v Samuels (1972) 3 SASR 585; Police v B, WR (2005) 91 SASR 451; R v Scott [2011] SASCFC 149, considered.

R v PATZEL
[2012] SASCFC 108
Court of Criminal Appeal: Gray, Sulan and Stanley JJ
GRAY J.

In my opinion this appeal should be allowed. I agree with the reasons of Sulan J. The defendant should be resentenced by this Court as proposed by Sulan J.
SULAN J: This is an appeal against sentence.
On 22 December 2010, the applicant and defendant, having pleaded guilty to possession of methylamphetamine for supply, was sentenced by Smith DCJ to three years and eight months’ imprisonment. The Judge fixed a non-parole period of two years and two months’ imprisonment. The Judge suspended the sentence, on condition that the defendant be of good behaviour for a period of three years, that he be under the supervision of a community corrections officer for 18 months, and obey the directions of that officer as to treatment, counselling and the like including, if the officer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Patzel

Details

AGLC: R v Patzel [2012] SASCFC 108
Case: [2012] SASCFC 108
Decision Date: 20 September 2012

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Gray, Sulan and Stanley JJ, heard an appeal by the defendant against a decision to revoke the suspension of his sentence. The defendant had pleaded guilty to possession of methylamphetamine for supply and was initially sentenced by the District Court to three years and eight months' imprisonment, with a non-parole period of two years and two months, which was suspended. The appeal concerned the subsequent revocation of this suspension and the order that the sentence take effect.

The central legal issues before the Court were whether special circumstances existed to justify a reduction in the term of the suspended sentence, and whether fresh evidence, not presented to the sentencing judge, should be admitted on appeal. The fresh evidence related to the defendant's efforts to address his amphetamine addiction and his engagement with counselling and rehabilitation services after the suspended sentence was imposed. The Court was required to consider the principles governing the admission of fresh evidence on appeal, specifically whether it could not have been obtained with reasonable diligence for use at the original sentencing and whether it would probably have had an important influence on the outcome.

The Court reasoned that while the defendant had a significant drug addiction problem, the initial sentencing judge had acknowledged this and the defendant's efforts to overcome it. However, the Court noted that the defendant was not directed to undergo extensive drug rehabilitation treatment, leaving him to his own resources. The breaches of the suspended sentence bond, including positive drug tests, were attributed to this untreated addiction. Regarding the fresh evidence, the Court applied the principles from *R v Dorning* and *R v Kikidis*, requiring that the evidence could not have been obtained with reasonable diligence and would likely have influenced the sentencing decision. The Court considered the public interest in the finality of litigation against the interests of justice.

The Court ultimately allowed the appeal, quashed the order revoking the suspension of the sentence, and remitted the matter to the District Court for re-sentencing. This decision was based on the admission of fresh evidence which demonstrated the defendant's subsequent engagement with drug counselling and rehabilitation efforts, suggesting a change in circumstances that warranted reconsideration of the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

On 27 March 2012, Barrett DCJ revoked the suspension of the sentence and ordered the sentence to take effect. The defendant appeals from that decision. Background On 24 December 2009, at Mount Gambier, the defendant was searched by police, who found amphetamine powder in three small bags secreted in his underpants. The powder contained 1.8 grams of methylamphetamine. The defendant had been acting as a middle man for a supplier. Smith DCJ accepted that two of the packages were for the defendant’s own use, and the third was to be supplied to a person at the direction of the supplier. The defendant was then 28 years of age. He had a good work record. He was employed at the time of his arrest, but lost his job when charged with the drug offences. Smith DCJ noted that, although the defendant had previous convictions, he had only been sentenced on one occasion to a term of immediate imprisonment. This sentence related to offences arising from a domestic situation. He had no prior drug offences. Smith DCJ recognised that the defendant was addicted. A psychologist’s report confirmed that the defendant suffered from an addiction to amphetamines. The defendant was undergoing a drug treatment program in an attempt to overcome his addiction. On 20 July 2011, the defendant appeared before Lovell DCJ and acknowledged breaching the suspended sentence bond. The breaches included the return of two urine samples which were positive to methylamphetamine, and the failure to comply with a restraining order. Lovell DCJ noted that the defendant was employed and had the support of his employer. The defendant’s community corrections officer reported that the defendant had attended supervision, as required, and noted his compliance with directions and his open approach to supervision. The community corrections officer reported that the defendant was aware of the triggers which caused him to lapse into drug use. Lovell DCJ determined to give the defendant a further chance and excused the breach. The Judge added a further condition that the defendant refrain from consuming any drug which is not medically prescribed or otherwise legally available, and then only at the prescribed or recommended dosages. I observe that the defendant was not directed to undergo any drug rehabilitation treatment. He was left to his own resources to deal with his drug habit with which he was having difficulty. There is no doubt that, at the time of the excusing of the breached bond, the defendant had a significant drug addiction problem. Entering into conditions not to abuse drugs was always going to be difficult for him if he were not subject to an extensive drug rehabilitation program. The supervising community corrections officer did not direct the defendant to undergo intensive drug therapy. As noted above, the defendant was left to his own devices. Unsurprisingly, having regard to his untreated addiction, the defendant breached the conditions of his bond. On 13 September 2011 he tested positive to amphetamine and methylamphetamine. On 13 January 2012, he failed to provide a sample of urine and, on 10 February 2012, he returned another positive sample.

Evidence

Evidence Before The Court

The defendant appealed against the order of revocation. The principal complaint was that special circumstance existed to justify the reduction of the term of the suspended sentence.Fresh evidence The defendant seeks to rely on evidence that, after he was placed on the suspended sentence bond, he attended his community corrections officer who organised an appointment for him with South-East Drug and Alcohol Counselling Services. When he attended that service, he was told that he already knew the theory, and that all he needed to do was put into action what he knew. He was told there was no point in him having any further counselling. He was then told by his community corrections officer that he need have no further drug counselling. He continued to see his community corrections officer, as required. He said he knew that when he was being tested some of those tests would come back as positive tests. He said he was always honest with his community corrections officer. He said he attempted to help himself and, in December 2011, he attended the Mount Gambier Hospital and there attended counselling sessions. The counsellor at those sessions printed out application forms for the Woolshed and Karobran, both rehabilitation facilities. He said that he informed his community corrections officer about them, but was never directed to go there. However, he did not attend either of the facilities as he was working and did not want to let his employer down. He felt that he was proceeding successfully in his employment and he did not want to jeopardise that position. None of this material was before the sentencing Judge. Counsel for the Director of Public Prosecutions submits that the evidence should not be admitted since the information could have been obtained with reasonable diligence at the time of sentencing. In exercising the discretion to admit further evidence, the Court is to have regard to two broad considerations: the public interest in the finality of litigation, which requires that all reasonable steps be taken to put all material evidence before the sentencing court, and the probabilities that the further material would have had an important influence on the result of the case.[1] [1] See R v Kikidis (2012) 112 SASR 148, [25], citing R v Dorning (1981) 27 SASR 481, 485. In Dorning,[2] the Court stated that, to receive further evidence, an appellate court should be satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial, and that the evidence be such that if given, it would probably have an important influence on the result of the case. Further, although not decisive, the evidence should appear credible.[3][2] R v Dorning (1981) 27 SASR 481.[3] R v Dorning (1981) 27 SASR 481, 486, citing Orchard v Orchard (1972) 3 SASR 89. In determining whether to admit fresh evidence, the overriding consideration must be the interests of justice.[4] In McIntee King CJ observed that an appellate court can receive fresh evidence even where it may not satisfy the applicable principles, if to not do so might result in an unjust conviction or an unjust sentence being permitted to stand.[5][4] See R v Pickard [2011] SASCFC 134, [42]. [5] The Queen v McIntee (1985) 38 SASR 432, 435. Note that King CJ was in dissent though the judgment of Zelling J, to which Bollen J agreed, does not appear to contradict King CJ’s proposition. See also R v Pickard [2011] SASCFC 134, citing Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593.

Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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