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 so decided, drug screening.
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.
The community corrections officer reported that the defendant had satisfactorily attended and engaged with supervision, as required. The problem which had not been adequately addressed was the defendant’s ongoing addiction to drugs. The defendant consistently lapsed into drug abuse. He was frank with his community corrections officer. Although the defendant discussed the possibility of entering a rehabilitation facility, he did not do so because of his financial situation. The defendant informed his corrections officer that he could deal with the problem himself. Clearly, his history of drug abuse suggested that this was the defendant’s hope but, without close supervision in an in-house facility, he was on the road to failure.
Barrett DCJ observed that it was difficult for a person in the defendant’s position to be free from drugs. He noted that one cause of the defendant’s problem had been a dysfunctional relationship, which had ceased. He also noted that the defendant had been in employment, and that his employer was supportive. Barrett DCJ considered however that there were no proper grounds upon which the defendant’s failure to comply with the conditions of his bond should be excused, nor were there grounds to reduce the term of the suspended sentence.
Barrett DCJ recognised the defendant suffered from a severe drug addiction:
However, you really have been given a warning by this court about the consequences of breaching your bond. You have many convictions for breaching bail conditions, breaching restraint orders and breaching bonds. As I have said, while I appreciate how difficult it is to free yourself from drugs, you have had numerous encouragements and warnings in recent times to help you.
I recognise that you have removed yourself from a relationship that was causing you difficulties last year and in the last four weeks you have got yourself accommodation where you can get help. You have employment and your employer is supportive.
Nevertheless, I do not find that these amount to proper grounds upon which the failure can be excused. Plainly the breaches are not trivial.
I revoke the suspension of the sentence. There is power if I find special circumstances to reduce the term of the suspended sentence, but in my view there are no special circumstances permitting my doing so. You will have to serve the whole sentence. It will begin from today.
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.
In Arnold v Samuels,[6] Bray CJ cited the following passage from a dissenting judgment of Hogarth J in Bean v Considine:[7]
I do not wish to be understood as suggesting that every dissatisfied appellant who has failed to bring extenuating facts to the notice of the Court below, should automatically have the right to reopen the case on appeal to this Court. I think that, in the first place, the additional facts which he seeks to prove must be such that, if believed, they would be likely to have influenced the Court below. Furthermore, the appellant is called upon to give some reasonable explanation for not bringing the facts to the notice of the Court below. It seems to me, however, that this Court should be liberal in its interpretation of what amounts to a reasonable explanation. As I have already said, inexperience in Court procedure and the age of the appellant are factors to be taken into account.
[6] (1972) 3 SASR 585, 594.
[7] Bean v Considine [1965] SASR 351, 359.
The case before the sentencing Judge was that the defendant attended counselling at the South-East Drug and Alcohol Service as organised by his community corrections officer, completed it to a satisfactory level, and had derived all benefit possible from counselling. The defendant deposes that he obtained counselling of his own accord and took active steps toward attending more intensive rehabilitation. Though the defendant did not enter intensive rehabilitation, the reason given for this was that he did not wish to take the necessary time off work. It is clear from the foregoing that the evidence of the defendant’s further counselling would have had an important influence on the sentencing of the defendant.
I accept that the evidence of the defendant is credible. Further, it is clear that the facts deposed would have had an important influence on the case.
I consider that the defendant’s affidavit should be admitted. The sentence that the defendant is required to serve is disproportionate, having regard to the circumstances of the case. The defendant is unable to deal with his addiction. His affidavit assists in assessing how the Court might finally determine a just resolution of the application.
The Director provided the Court with an affidavit which exhibits the case notes of the community corrections officer who had supervised the defendant since June 2010. The officer discussed the defendant’s drug addiction with the defendant throughout the period of supervision. On 24 February 2012, the defendant admitted that he was struggling to stay off drugs. He told the officer at that time that he did not think rehabilitation in a drug rehabilitation facility was for him. The community corrections officer stated:
Jason Mark Patzel did attend South East Drug and Alcohol Services for further intervention, a report dated 31/03/2011 from this service indicated that he is aware of the triggers for his behaviour, and demonstrated that he had retained a good level of knowledge regarding relapse prevention strategies. Jason Mark Patzel it would seem is passively resistant to supervision. Unless he is prepared to take seriously his responsibilities and obligations to a bond and address his substance abuse problems he is unlikely to benefit from further supervision.
It is apparent that the defendant, although recognising he had a drug problem, was not able to resolve his addiction. It is unfortunate that the community corrections officer did not direct the defendant to a drug rehabilitation facility. Had he done so, the defendant would have had the opportunity to resolve his problems. In all but one respect, the defendant complied with the orders of the Court.
However, he seemed to be incapable of complying with the conditions to abstain from using illicit drugs.
I am not convinced that requiring the defendant to serve a lengthy sentence will necessarily assist in his drug rehabilitation. It seems that if he can overcome his drug problem, there is good reason to be confident that the defendant may lead a useful life. He has a good work record and has not been convicted of any offence since he was sentenced to imprisonment by Smith DCJ.
The appeal
When the matter was first before this Court, the defendant was unrepresented. The Court was concerned that there were issues which had not been addressed which may assist the Court. The possibility of releasing the defendant on bail pending final determination of the application was considered. The defendant sought an adjournment in order to instruct solicitors. He informed the Court that his former employer had agreed to assist him in obtaining representation. Ultimately, counsel appeared for the defendant. Counsel submits that Barrett DCJ was in error in revoking the suspension of the sentence.
Section 58 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
Orders that court may make on breach of bond
(1)     Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court –
...
(d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended – must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
...
(3)    Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court –
(a)may refrain from revoking the suspension; and
(b)may –
(i)–
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
...
(D)revoke or vary any other condition of the bond; or
...
(4)    Where a court revokes the suspension of a sentence of imprisonment, the court –
(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
Counsel for the defendant submits that the breach in this case is at the lower end of the scale of seriousness for breaches of a bond. The defendant has been in possession of a prohibited drug for his own use, and only for his own use. Simple possession for a defendant’s own use will, more often than not, result in a fine or bond. Rarely will the Court impose an immediate custodial sentence. In many cases, this offending would result in an offender entering the drug diversion program, which includes intensive treatment and regular supervision by the Court which, if successful, avoids any further penalty. It is noted that the defendant has not had the opportunity to enter such a program.
Counsel for the defendant informed the Court that the defendant has made enquiries of rehabilitation facilities which may be able to assist him. Karobran Farm, a facility in the South-East at Naracoorte, has been approached.
After the Court reserved its judgment, the defendant advised the Court that he had been accepted into Karobran new Life Centre, a live-in drug and alcohol rehabilitation facility at Naracoorte. He advised his family is prepared to pay the up-front costs of $765.00 upon his release from custody. He has expressed his willingness to undergo treatment.
A confirmation from the rehabilitation facility advises the approval of the defendant’s application.
Excusing a breach

Counsel for the defendant contends that the breach in this case was such that to revoke the suspended sentence and require the defendant to serve a lengthy sentence, with a significant non-parole period, is disproportionate to the breaching conduct. A difficulty with this submission is that the defendant’s conduct was not isolated. The defendant had been warned by his community corrections officer of the consequences of not complying with the conditions of his bond. Lovell DCJ considered that to estreat the bond would lead to a disproportionate penalty:
All right Mr Patzel, I have very reluctantly given you another chance. I will just say this to you, that I suspect this is the last chance you will get. If you return anything remotely resembling a positive swab again you will undoubtedly go to gaol.
Within two months of Lovell DCJ making that statement, the defendant again breached the conditions of the bond. Further breaches occurred after that time. The defendant has admitted that he was continuously in breach of the conditions of the bond.
The test to determine whether a breach is to be excused and whether the Court should refrain from revoking a suspended sentence was discussed in Buckman.[8] Proper grounds for excusing a breach look to the nature of the breach and the circumstances in which it was committed.[9] The personal circumstances of a defendant as they exist are not relevant to that question. As King CJ relevantly observed:[10]
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[8] R v Buckman (1988) 47 SASR 303.
[9] R v Buckman (1988) 47 SASR 303, 307 per Jacobs J.
[10] R v Buckman (1988) 47 SASR 303, 304.
In Police v B, WR,[11] Doyle CJ applied Buckman. In Scott,[12] the defendant had breached her bond on numerous occasions. David J, with whom Peek and Blue JJ agreed, referred to Buckman:[13]
The very nature of a suspended sentence would be frustrated if continual breaches of conditions which existed to make the bond workable were allowed to be made.
[11] (2005) 91 SASR 451.
[12] R v Scott [2011] SASCFC 149.
[13] R v Scott [2011] SASCFC 149, [17].
Barrett DCJ refused to excuse the defendant’s conduct in consistently breaching the conditions of the bond that he abstain from consumption of illicit drugs. The Judge acknowledged the difficulties of resolving a chronic and long‑term addiction. However, he concluded that, having regard to the ongoing breaches, together with warnings that had been given to the defendant, the sentence that the defendant was required to serve was not disproportionate. The Judge concluded that there were no proper grounds to refrain from revoking the suspension.
In my view, Barrett DCJ was correct. The defendant’s breaches continued over a lengthy period. The defendant received numerous warnings. He was aware that if he continued to return positive samples that he was at risk that the suspension of the sentence would be revoked. There must come a time when repeated breaches of a condition result in the Court revoking a suspended sentence.
Special circumstances
Barrett DCJ considered whether there were special circumstances to reduce the term of the sentence, pursuant to 58(4) of the Act. The Judge concluded that there were no special reasons. He did not give reasons. In Buckman, Jacobs J stated that special circumstances under subsection (4) for reducing the sentence look for some significant change of circumstances since the defendant was sentenced which, had they existed at the time, might have justified a reduced sentence. King CJ agreed. He said:[14]
... The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6)[15] exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
[14] R v Buckman (1988) 47 SASR 303, 304.
[15] Now subsection (4).
Therefore, it is necessary to consider the position when Smith DCJ sentenced the defendant. Smith DCJ observed that the defendant was receiving counselling from South-East Drug and Alcohol Counselling Services and, although he was having difficulty with his abstinence, he was maintaining it and attending programs.
Since being sentenced by Smith DCJ, the defendant has obtained employment, and is supported by his employer who is prepared to continue to support him to overcome his addiction. He has strong support from his mother. Further, it is clear that, at the time the defendant appeared before Smith DCJ, he had little insight into his addiction. That situation has now changed. The defendant now appears to have a greater insight into his problem. He is now aware that he requires intensive treatment to overcome his chronic addiction. He is prepared to fully engage with a treatment regime. He is prepared to admit himself to a strict treatment regime at Karobran, and to comply with the conditions imposed by the centre for live-in patients.
It is unfortunate the counsel who appeared before Barrett DCJ did not put before him any submissions to support a finding of special circumstances. As a consequence, Barrett DCJ did not have the opportunity to consider these factors.
I consider that the combination of the above circumstances amount to special circumstances justifying reducing the non-parole period. The non-parole period should be reduced to enable the defendant to undergo treatment as soon as possible.
When the defendant is released on parole, the Parole Board should consider including a condition of his parole that the defendant receive treatment initially in Karobran New Life Centre as an in-house patient, that he be under the supervision of a qualified psychologist or psychiatrist specialising in drug treatment, and that a long-term program be devised to deal with his chronic addiction.
I would grant permission to appeal. I would allow the appeal.
I would resentence the defendant. The head sentence is appropriate, but I would reduce the non-parole period to six months’ imprisonment. I would direct that the sentence and non-parole period both commence on 27 March 2012.
STANLEY J: I have had the advantage of reading the reasons of Sulan J. I agree that the appeal should be allowed, and that the non-parole period should be reduced to six months’ imprisonment.