R v Wilson No. Sccrm-02-254

R v WILSON
[2003] SASC 18
Court of Criminal Appeal: Duggan, Debelle and Gray JJ

DUGGAN J I agree that the appeal should be allowed for the reasons given by Gray J and that the non-parole period should be adjusted to the level he has suggested.
The non-parole period imposed by the learned sentencing judge would have been appropriate if the appellant had not been suffering from terminal cancer. However, the appellant’s illness puts the case into an exceptional category and justifies a lower non-parole period than would otherwise be the case.
DEBELLE J The facts are recited in the reasons of Gray J.
While the sentence was very severe, I do not think that it was manifestly excessive. In this respect, I agree with the substance of the reasons of Gray J. Furthermore, after the appeal had been argued, I was prepared to join in an order that the non-parole period be reduced to four years. At that stage, I was prepared to agree with the substance of the reasons of Gray J.
However, after the appeal was argued, the Court received by consent several affidavits. They disclosed that, notwithstanding his treatment, the appellant’s health has deteriorated markedly. Though the affidavits deal with events which have occurred after the appellant had been sentenced, they explain the full extent and implications of the appellant’s health at the time he was sentenced. They are therefore admissible: R v Smith (1987) 44 SASR 587 at 588. For the reasons which follow, the evidence in these affidavits causes me to believe that the non-parole period should be reduced to three years.
The affidavits disclose that the progress of the myeloma continues to the extent that there is now a substantially reduced expectation of life. There is a significant risk of the appellant suffering a stroke. His outlook beyond six months is poor. In addition, the appellant suffers severe pain in the spine, ribs and right leg although this is adequately controlled with slow release morphine. His severe anaemia causes tiredness. He has a lack of energy and shortness of breath.
The appellant had been in custody for about a period of five months before he was sentenced. The sentencing judge had regard that period when fixing the sentence which began on 8 July 2002. The appellant has, therefore, already served a period of almost 14 months imprisonment. Given the seriousness of the appellant’s health, his deteriorating condition and his very short expectation of life, there is a question whether a period of 14 months should be a sufficient non-parole period.
This is a sad and distressing case. There is an obvious tension between the necessity to order proper punishment and compassion for the appellant suffering from a terminal illness. A court will be reluctant to impose a sentence which is crushing. However, it is well established that, as a general rule, offenders cannot expect to escape punishment because of ill health: R v Smith at 559; Barling (1995) 79 A Crim R 131 at 134; D v G (1999) 109 A Crim R 145 at 150 – 151. See also BJW (2000) 112 A Crim R 1 at 6 – 8. There will be cases where the court must consider whether the defendant has, by his criminal conduct, forfeited the right to any hope or expectation that he will be released from confinement at a time that will permit him to have some useful period of his life to enjoy: Crowley & Garner (1991) 55 A Crim R 201 at 206; Barling (supra) at 134 – 135. Nevertheless, as a general rule, ill health will be a factor tending to mitigate punishment but only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health: R v Smith at 589. Thus, any compassion for the appellant must be weighed against the severity of his offending.
It should be noted also that the appellant is entitled to petition the Governor seeking to have Her Excellency exercise the prerogative of mercy: s 369 of the Criminal Law Consolidation Act 1935.
There are, I think, questions whether s 27 of the Correctional Services Act 1992 assists. Although it enables the Chief Executive Officer of the Correctional Services Department to grant a prisoner leave of absence from prison for hospital and medical treatment and for compassionate purposes, s 27 does not appear to address the question of the appropriate place for holding a prisoner dying from a terminal illness. Section 38(2c) of the Criminal Law (Sentencing) Act 1988 may enable suspension of a sentence on the ground of the defendant’s ill health and require the defendant to reside in a particular place for a specified period of no greater than 12 months. This provision seems to be of limited operation and, as the offending in this case was so serious, any non-parole period must be more than 12 months. It is doubtful, therefore, whether s 38(2c) is of much assistance.
The appellant’s offending was very serious. He threw a Molotov cocktail into a crowded hotel. It caused serious injuries to a woman. It would both distort the sentencing process and send the wrong message to the community to order a short non-parole period. While those factors are important, it is reasonable to conclude from the medical evidence that imprisonment will be a greater burden on the appellant because of his illness. I think that a proper balance between compassion for the appellant and the gravity of his offending will be maintained if the non-parole period is reduced to three years. It is a lenient non-parole period only because of the appellant’s ill health. Although the non-parole period will be likely to have the consequence that the appellant may die in custody, this Court is not at liberty, for the reasons already expressed, to order any lesser penalty.
GRAY J This is an appeal against sentence.
On 21 May 2002 Anthony Trent Wilson, the appellant pleaded guilty to charges of endangering life, unlawfully inflicting grievous bodily harm and two counts of damaging property.[1]
[1]
The judge considered imprisonment for nine years with a non parole period of six years to be the appropriate penalty. However instead of backdating the sentence he allowed credit for the time spent in custody awaiting sentence. This resulted in a head sentence of eight years and six months imprisonment with a non parole period of five years and six months. The sentence commenced on 8 July 2002.
The Criminal Conduct
The offending arose out of an incident on Tuesday 3 July 2001. The appellant and his friend entered the front bar of the Belair Hotel shortly after 8.00 pm. The appellant was affected by alcohol. He attempted to order a meal but was refused service. The kitchen had closed at 8.00 pm. He saw other patrons subsequently receive their meals. He did not understand that those meals had been ordered prior to 8.00 pm. The appellant believed that he was being discriminated against.
The appellant became verbally aggressive. He went outside to his motor vehicle and assembled a molotov cocktail. He also obtained a tomahawk and hammer from the vehicle. He then moved his vehicle from the carpark to the driveway to facilitate an immediate exit. He entered the front bar and threw the molotov cocktail in the direction of the patrons who had received their meals after he attempted to order. One woman suffered severe burns. She required hospitalisation and ongoing treatment. She is scarred and suffers impaired left hand function. She also suffered from a post traumatic stress disorder. Her victim impact statement disclosed that:
“Immediately after the incident, and for many months afterwards, I experienced a range of post trauma reactions. These included fear and distress, depression and anxiety. I also could not go out of the house and was terrified to be alone at home, in my own space. I was having terrible nightmares that I would wake up screaming from. I developed Insomnia as I became fearful of the nightmares, I was lethargic and unable to eat due to the depression I was suffering. At this time I was prescribed sleeping tablets, which I resented having to take. It took a long time for me to readjust my sleeping patterns after I discontinued using sleeping medication.”
The molotov cocktail started a fire that caused danger to other persons and property damage. The appellant used the tomahawk and the hammer to inflict further damage. He attempted to attack another patron who went to assist the victim.
The appellant faced a maximum penalty of 15 years imprisonment for endangering life, five years imprisonment for unlawfully inflicting grievous bodily harm and three years imprisonment for each count of property damage.
The Appellant’s Antecedents
The appellant was aged 33 years. He had extensive criminal antecedents. His prior offending was said to be alcohol related. He had been sentenced to terms of imprisonment on a number of occasions. He had breached bail agreements and good behaviour bonds. The appellant was on parole at the time of the present offending. He was not a good candidate for parole.
The appellant was taken at birth from his mother. She was then aged 15 years. The appellant’s father died of heart disease at the age of 21 years. The appellant spent 14 years with agencies and foster parents until he returned to his family. The appellant and his partner have six children aged between 2 and 13 years.
Some months after he was arrested the appellant became aware that he was suffering from terminal cancer. Expert medical evidence detailed the nature and extent of his condition and his poor prognosis. Given the non parole period fixed by the judge it was probable that the appellant would die in custody unless released for compassionate reasons.
In November 2001 a diagnosis of multiple myeloma at its most advanced clinical stage was made by a consultant haematologist. The appellant’s life expectancy was estimated to be between two and a half and five years. The appellant required on going treatment.
It was accepted that the appellant’s condition could be properly treated in custody. However it was said that as his condition deteriorated he would spend time “struggling with his disease”. Although his prognosis will not be altered by him being in custody the risk of infections, particularly when undergoing treatment may be increased. It is also reasonable to infer that the appellant will be subjected to a greater level of anxiety and stress in custody than if he were at home with his family.
Issues on Appeal
Counsel for the appellant submitted that the head sentence and the non parole period were manifestly excessive. It was said that the judge failed to make adequate allowance for the appellant’s terminal illness. This consideration was not reflected in the non parole period.
Counsel for the Crown submitted that the judge considered all relevant matters. No immaterial consideration had been brought to account. No error of principle was identified. The head sentence and the non parole period were within the judge’s discretion. There was no basis on which to interfere.[2]
[2] The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R (2000) 202 CLR 321 at 324. Gleeson CJ and Hayne J said :
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘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 for 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.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ at 329 were of a similar opinion:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been
‘upon the facts ... unreasonable or plainly unjust [so that] 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.’”
Counsel for the Crown drew attention to a number of features that were said to aggravate the appellant’s conduct. These included the element of premeditation, evidenced by the fact he went to his vehicle and assembled the molotov cocktail, collected the tomahawk and hammer and positioned his vehicle for departure. The nature of the injuries sustained by the victim and the risk to others in the area underscored the gravity of the offences. Although the Crown accepted the plea on the basis that the appellant had no specific intent to injure the victim it was said that his reckless indifference made the crime very serious.
The circumstances of the appellant’s offending were grave. The attack took place in a public area where people are entitled to feel safe. The conduct involved reckless indifference to the lives of a number of patrons at the hotel. It resulted in severe personal injury to the victim. She was entirely innocent. She had not provoked the attack. There were aggravating features including premeditation. General deterrence is an important consideration in sentencing for these kinds of crimes.
It must be borne in mind that the appellant engaged in one multifaceted course of conduct.[3] His overall criminality had to be assessed when fixing an appropriate sentence. This was the approach that the judge followed. It was appropriate to apply section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
[3] Attorney-General v Tichy (1982) 30 SASR 84; R v Elliot (2001) 121 A Crim R 254; R v Jason [2002] SASC 201
The medical evidence referred to earlier established that there was a serious risk that imprisonment would have an adverse effect on the appellant’s health. There was a substantial risk that imprisonment was likely to bear more heavily upon the appellant than upon a healthy person because of the stress associated with his illness. It is likely that the appellant will suffer a greater burden in custody than if at home, given his ill health.
The appellant’s physical illness is one factor which must be weighed when considering an appropriate sentence. In Bailey[4] the High Court approved the observations of King CJ in Smith[5]:
“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. 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. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”
[4] (1988) 34 A Crim R 154
[5] (1986-1987) 44 SASR 587 at 589
The question in the present case is whether the judge had adequate regard to the appellant’s state of health.
The judge reasoned:
“The real difficulty in sentencing you is that you have been very ill with multiple myeloma. You need frequent treatment. Even with treatment your future is very uncertain. To imprison you will not prevent you getting treatment but it will make it more difficult. You’re likely to find time in custody more difficult than many other people would. The medical reports suggest that you may well die in less than the five and a half years of your non-parole period. It is a very serious thing to put a man in gaol knowing that he may not leave alive. I have been acutely conscious of this in fixing your sentence. If it becomes necessary you can be treated in hospital or on some form of compassionate leave under s.27 of the Correctional Services Act.
In all the circumstances I do not believe it would be appropriate to suspend or otherwise ameliorate your sentence. The variations that will need to be made for you if and when you become more seriously ill than you are now will have to be made pursuant to s.27 of the Correctional services Act.”
The judge was correct in declining to suspend the sentence. The appellant’s conduct was too grave. However his illness was a mitigatory factor that should have been brought to account. His illness should have led to some amelioration in his sentence. The judge erred in not allowing some amelioration of the sentence on account of the appellant’s ill health. The approach of the judge was incorrect. Error has been demonstrated.
Section 27 of the Correctional Services Act 1982 (SA) provides:
“(1)The Chief Executive Officer may, by written order, grant to a prisoner leave to be absent from the place in which he or she is being detained —
(a)    for the medical or psychiatric examination, assessment or treatment of the prisoner; or
(b)    for the attendance of the prisoner at an educational or training course; or
(c)   for the participation of the prisoner in paid employment or in any form of recreation, entertainment or community service; or
(d) for such compassionate purpose as the Chief Executive Officer thinks fit; or
(e)     for any purpose related to criminal investigation; or
(f)     for such other purpose as the Chief Executive Officer thinks fit.
The judge placed particular emphasis on section 27 of the Correctional Services Act and the power to grant leave of absence from prison for compassionate purposes. As King CJ observed in Smith it is important that the courts do not transgress into areas that are properly the subject of administration by the Correctional Services Department. In the present case the judge emphasised the availability of the powers of the Department to address compassionate needs.
Following the reserving of judgment, further evidence was received. The appellant’s condition and prognosis had deteriorated. This could not be considered unexpected, given the nature of his illness. It was accepted that he would experience changes in his condition. It is not possible to predict if and when further changes will occur. These are the matters that the powers provided by section 27 of the Correctional Services Act are designed to address.
Conclusion
This is a sad and distressing case in which the seriousness of the appellant’s conduct must be balanced against his personal circumstances. The victim of the offence has suffered greatly. So too will the appellant’s partner and children when the appellant’s illness progresses.
The gravity of the appellant’s conduct called for a substantial non parole period. The appellant’s terminal illness is a relevant factor which is to be weighed in the sentencing process. It is also likely that compassionate considerations may need to be addressed by section 27 of the Correctional Services Act. This should be considered as and when the appellant’s health deteriorates.

The Sentencing Act requires the court to have regard to the interests of the family of an offender. Section 10(1)(a) of the Sentencing Act provides that regard must be had in determining sentence to “the probable effect any sentence under consideration would have on dependents of the defendant”. In the present case the appellant’s partner and his six children must be considered. As his illness progresses, interaction in prison between the appellant and his family is likely to be difficult and may cause great hardship.
This appeal should be allowed. Error has been demonstrated in the sentencing process. The appellant should be resentenced. Having regard to the totality of the appellant’s conduct, the need for general deterrence, the gravity of the conduct, his criminal antecedents, his unfortunate personal circumstances and his plea and contrition it cannot be said that a head sentence of eight years and six months is manifestly excessive. It is a sentence that was within the discretion available to the sentencing judge.
Justice in this case is best effected by fixing a short non parole period. Having regard to his personal circumstances, his terminal illness and the effect of his imprisonment on his partner and young children it is appropriate to fix a non parole period of four years. Both the head sentence and non parole period should commence from 8 July 2002, the date on which the appellant was taken into custody.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1      “Statement of Offence
Endangering Life. (Section 29 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
         Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, did an act, namely threw a Molotov cocktail at [MW], knowing that the act was likely to endanger the life of [MW], intending to endanger her life or being recklessly indifferent thereto.
Statement of Offence
Unlawfully Inflict Grievous Bodily Harm. (Section 23 of the Criminal Law Consolidation Act, 1935).
  Particulars of Offence
         Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, unlawfully and maliciously inflicted grievous bodily harm to [MW].
Statement of Offence
Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
         Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged carpet in the Belair Hotel, the property of [RN], the said damage amounting to about $10,000.
Statement of Offence
Damaging property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
         Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged an arcade machine and a pinball machine, the property of [WB], the said damage amounting to about $2,200.”
2 The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R (2000) 202 CLR 321 at 324.Gleeson CJ and Hayne J said :
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘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 for 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.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ at 329 were of a similar opinion:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been
‘upon the facts ... unreasonable or plainly unjust [so that] 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.’”
3 Attorney-General v Tichy (1982) 30 SASR 84; R v Elliot (2001) 121 A Crim R 254; R v Jason - [2002] SASC 201
4 (1988) 34 A Crim R 154
5 (1986-1987) 44 SASR 587 at 589

“Statement of Offence

Endangering Life. (Section 29 (1) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, did an act, namely threw a Molotov cocktail at [MW], knowing that the act was likely to endanger the life of [MW], intending to endanger her life or being recklessly indifferent thereto.

Statement of Offence

Unlawfully Inflict Grievous Bodily Harm. (Section 23 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, unlawfully and maliciously inflicted grievous bodily harm to [MW].

Statement of Offence

Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged carpet in the Belair Hotel, the property of [RN], the said damage amounting to about $10,000.

Statement of Offence
Damaging property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged an arcade machine and a pinball machine, the property of [WB], the said damage amounting to about $2,200.”

[2003] SASC 18

26 February 2003