R v Sampson No. Sccrm-02-23

R v SAMPSON
[2002] SASC 153
Court of Criminal Appeal: Doyle CJ, Prior and Gray JJ

DOYLE CJ, PRIOR AND GRAY J: This is an appeal by leave against a sentence imposed by the District Court.
A Judge of this Court refused leave to appeal. Application was made to this Court for leave to appeal, and on an earlier occasion the Court granted leave to appeal. The Court granted leave to appeal on the basis of an amendment to the grounds of appeal that raised a matter not raised before the District Court or before the Judge who refused leave to appeal.
Mr Sampson pleaded guilty to a charge of taking part in the sale of heroin. For that offence the Judge sentenced him to imprisonment for six months.
That sentence meant that Mr Sampson became liable to serve the balance of a sentence in respect of which he was on parole when he took part in the sale of heroin. The balance to be served was a period of one year two months fourteen days.
The conviction on the heroin offence also amounted to a breach of a bond, which in turn meant that Mr Sampson was liable to have brought into force a suspended sentence of imprisonment for twelve months.
Mr Sampson also pleaded guilty in the District Court to illegal use of a motor vehicle and some other associated offences. These offences amounted to a breach of yet another bond, which made Mr Sampson liable to have brought into force a further suspended sentence of imprisonment for nine months.
All of this led to the following sentences and orders and consequences.
First, Mr Sampson became liable to serve the unexpired balance sentence of one year two months fourteen days. Second, the Judge revoked the suspension of the two suspended sentences, which meant that Mr Sampson became liable to serve cumulative sentences of twelve months and nine months respectively. Third, the Judge imposed a sentence of six months’ imprisonment for the heroin offence. Fourth, the Judge imposed a sentence of two months’ imprisonment for the illegal use offence. For the associated offences the Judge convicted without penalty.
All the sentences were made cumulative, making a total head sentence of three years seven and a half months. The Judge deducted three and a half months for time spent in custody, leading to an effective head sentence of three years four months from 18 December 2001.
On the hearing of the appeal it emerged, as a result of an inquiry from the bench, that the reduction for the time spent in custody should have been one and a half months only. Although this means that the effective head sentence is two months less than it should have been, that effective head sentence will have to stand. The Court does not have power to increase a sentence on an appeal by an offender, except to extend a non-parole period: see s 353(5) of the Criminal Law Consolidation Act.
The Judge fixed a non-parole period of two years in relation to those head sentences.
The Judge did not indicate from which of the sentences the three and a half months should be deducted on account of time spent in custody. It is necessary to allocate the deduction to particular sentences, and to reflect it in those sentences, because otherwise there will be a disconformity between the sentences indicated earlier in these reasons and the effective head sentence as stated by the Judge. In the circumstances, we consider that the appropriate course is to reduce the sentence on the heroin offence from six months to four months, and the sentence on the illegal use offence from two months to two weeks.
In doing so we realise that we are reflecting the error made by the Judge in deducting too much time for time spent in custody. However, as we have already indicated, it is necessary to vary the sentences in this way to ensure that the individual sentences result in the effective head sentence intended by the Judge, and at the same time to avoid increasing Mr Sampson’s sentence contrary to s 353(5).
Treating the fourteen day sentence as half a month, and the two week sentence as half a month, that results in a total head sentence of three years four months.
When the appeal was argued, the only complaint related to the non-parole period. We agree that no criticism can be made of the head sentences that the judge imposed. In the circumstances they were lenient. As has emerged, due to an error the head sentence is at least two months less than it should be. There were good reasons for leniency as the Judge recognised, but there is no need to dwell on that, because the head sentences are not challenged. The same applies to the decisions in relation to the suspended sentences.
It suffices to say that Mr Sampson’s involvement in the heroin offence was fairly minor, and the offence itself was rightly regarded as close to the bottom of the scale of seriousness for such an offence.
Mr Sampson was 34 years of age. He is a long term heroin addict. He has a long list of offences of the type commonly seen with drug addicts. Quite a few are fairly minor, but some are quite serious. This poor record and the fact that Mr Sampson had breached bonds and his parole justify the approach the Judge took to the fixing of the non-parole period.
Some Judges might have been more lenient, on the basis that Mr Sampson had been making good progress in his attempts to break his heroin addiction. The Judge had a report from the Department for Correctional Services to that effect. But it was open to the Judge to take the view that the Judge took.
Accordingly, on the material before the Judge the appeal could not succeed. We turn now to the new material raised on appeal.
Mr Sampson had been living with Ms C for about 18 months before being taken into custody. She also is a heroin addict, and also is on a methadone program in an attempt to break her addiction. She is currently pregnant. When Mr Sampson came before the District Court he was not aware of the pregnancy or of the impact that his imprisonment was going to have on Ms C. Affidavits filed in the appeal proceedings indicate that since Mr Sampson was imprisoned Ms C has not been coping at all with her situation. Her doctor provided a report stating that she is becoming increasingly depressed, and is unable to function in a normal way. His view was that she could not cope, emotionally or physically, with a new born child, without support from Mr Sampson. The doctor saw a real threat to the health of Ms C and of the baby. An affidavit was also filed by Mr Sampson’s mother. The effect of her evidence was that Ms C had no family in South Australia to provide support for her, and that Ms C needed considerable support to cope with day-to-day issues, let alone the care of a new born baby. Mr Sampson’s mother was doing what she could, but for reasons that she explained in her affidavit it was not really feasible for her to fill the gap created by Mr Sampson’s imprisonment, at least on a continuing basis.
The Court admitted the affidavit evidence. The Court accepted that Mr Sampson, being in custody, was not aware of the deterioration in Ms C’s condition, and of the difficulty that she was having. Ms C’s own heroin addiction is a matter that helps to explain what otherwise might be difficult to believe, namely, that Mr Sampson was not made aware of the developing position. It appears that Ms C’s condition was such that she was not capable of explaining the position to him. Accordingly, we were satisfied that in the circumstances this was material that was not known to Mr Sampson or reasonably available to him at the time when he was sentenced, even though, in an objective sense, one might have thought that it should have been available to him.
We consider that the fresh material before the Court is relevant to the sentence to be imposed on Mr Sampson, and we are satisfied that had it been put before the Judge it would have affected the fixing of the non-parole period.
The effects of imprisonment on an offender’s family and dependants are always relevant: see s 10(1) of the Criminal Law (Sentencing) Act. However, in most cases those effects are not a reason to reduce what is otherwise an appropriate sentence. In almost every case imprisonment will have some adverse effect on the family and dependants of the offender. What might be called the usual adverse effects are not a basis for a reduction in the sentence. However, in particular cases the effects on the family and dependants may be so significant as to provide a basis for some reduction in what would otherwise be an appropriate sentence. It is not possible to neatly categorise the circumstances in which this will be so, but ordinarily the effects on dependants will be a reason to reduce the sentence only when those effects are particularly significant or compelling. And even then, the seriousness of the offence may mean that there can be no significant reduction on account of the effect on dependants, and there may be other reasons for reaching the same conclusion.
Even when the effect on dependants is taken into account, the Court must still consider other factors relevant to the fixing of the sentence. The length of the sentence cannot be determined solely by reference to the position of the family and dependants of the offender.
In the present case the effect of Mr Sampson’s imprisonment on Ms C, and the likely effect on the baby due to be born in a few months time, is quite serious. We are satisfied that if this material had been before the District Court Judge, a lesser non-parole period would have been fixed. We do not think that the material could rightly have affected the Judge’s decision as to the head sentences. The Judge had extended every leniency that could be extended in that respect.
Accordingly, reconsidering the sentence on the basis of the new material the non-parole period should be reduced. But there is a limit to how far the Court can go on this account. Mr Sampson has offended on a number of occasions since being released on parole. In dealing with these offences, other courts have extended considerable leniency to him. While his rehabilitation remains an important factor for consideration, as does the breaking of his addiction, his rehabilitation cannot guarantee continuing leniency in the face of offending. The reality is that one cannot say confidently that he is unlikely to offend again. As well, the Judge has reduced the non-parole period by two months more than she should have done, having regard to the error referred to above. On appeal we are not prevented by s 353(5) of the Criminal Law Consolidation Act from increasing the non-parole period, but under all the circumstances we do not propose to do so.
In the circumstances, we consider that a non-parole period of fifteen months commencing on 18 December 2001, the day when the Judge passed sentence, is appropriate. That is a little more than one-third of the head sentence. That is an unusually low proportion. It means that the child will be born about nine months before the expiry of the non-parole period. Ms C will clearly be in difficulty, but under all the circumstances, and particularly having regard to Mr Sampson’s poor record and offences while on parole, we consider that the Court cannot be any more lenient than that. But we consider that that degree of lenience is justified by the impact of Mr Sampson’s imprisonment on Ms C and the yet to be born child, and by our satisfaction that in all the circumstances Mr Sampson is likely to make real and renewed efforts to keep out of trouble and to break his heroin addiction. He will have to understand that this is his last chance.
In the circumstances, we would allow the appeal. We would set aside the sentences imposed by the Judge, but only for the purpose of making allowance for the time spent in custody, as indicated above. We would make the orders that the Judge made bringing into effect the suspended sentences.
Accordingly, for the sake of clarity, having set aside the sentences imposed by the District Court, we impose a sentence of four months’ imprisonment on the charge of taking part in the sale of heroin; a sentence of two weeks’ imprisonment on the charge of illegal use of a motor vehicle; on the offences associated with that we order that Mr Sampson be convicted without further penalty; we order that the suspended sentences of imprisonment for twelve months and nine months be brought into effect; we order that each of these sentences be cumulative and that they be cumulative on the unexpired balance of parole of one year two months fourteen days. In relation to the combined head sentence of three years four months, we fix a non-parole period of fifteen months, dating from 18 December 2001.

[2002] SASC 153

16 May 2002