The Queen v Verschaffelt
[2002] NZCA 244
•8 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA239/02 |
THE QUEEN
V
PAUL GREGORY VERSCHAFFELT
| Hearing: | 29 August 2002 |
| Coram: | Anderson J Williams J Salmon J |
| Appearances: | G Gotlieb and CJ Robertson for Appellant AE Kiernan for Crown |
| Judgment: | 8 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
Paul Verschaffelt pleaded guilty to one charge of supplying the Class A drug heroin, two charges of supplying the Class B drug ecstasy, and one charge of conspiracy to import the Class B drug, methamphetamine. He was sentenced to four years imprisonment. He appeals against that sentence on grounds related to an unusual health condition.
Background
Paul and his brother, David, were both charged with drug related offences. The charges arose as part of an on-going police enquiry. A special duties constable built up a relationship with Paul Verschaffelt. Paul outlined to the constable his plan to travel to Japan to purchase, and send to New Zealand over a period of time, substantial quantities of methamphetamine. He offered to sell the drug to the constable.
During the course of this meeting he sold the constable eight grams of heroin at a total price of $3,200. Upon analysis the drug was found to be of good quality and high purity.
At a second meeting Paul introduced the constable to his brother David who was to be the New Zealand contact and who would deliver to the constable the drugs which Paul sent to New Zealand. David was to have responsibility for the organising of the necessary finance.
At a further meeting Paul supplied the constable with four ecstasy tablets as a sample and offered to provide further tablets. Later, Paul supplied the constable with 108 tablets of ecstasy and on a final occasion, with a further 300 tablets. Official police enquiries located documents in Paul’s possession showing the sale of large numbers of ecstasy tablets.
A search warrant was executed at the home of David. Eleven small clip-seal bags of methamphetamine were found in his shirt pocket and a further 11 bags were found in a sunglass case in his car. A bag containing 81 tablets of ecstasy was also found.
The two brothers were jointly charged with conspiracy to import methamphetamine. Paul was charged with the supply of heroin and the supply of ecstasy. David was charged with possession of methamphetamine and possession of ecstasy. Each pleaded guilty to all charges.
The brothers were sentenced in the High Court. At sentencing the Judge was provided with extensive evidence relating to an unusual medical condition from which Paul suffers known as delayed cold induced angioedema. The effects of this condition have been described in affidavits filed by Dr Rohan Ameratunga, a clinical immunologist at Auckland Hospital who has been treating Paul for the last two years and was also responsible for his care in 1993 and 1994 when he was admitted to the Starship Hospital on a number of occasions. He described the condition as “extremely rare”. In an affidavit he said:
4. When Paul is exposed to the cold of physical trauma, he develops swelling of the body, both internal and external. This can potentially involve his airways and his ability to breathe, which can be life threatening.
5. The swelling can take between 24 and 72 hours to begin but can then progress more rapidly over a short period. Paul can be seemingly unaffected, or marginally affected initially, but can then develop symptoms of laryngeal oedema.
6. Paul was sentenced to 4 years imprisonment on 24th June 2002 and has been serving his time in the Special Unit at Mt Eden Prison where prison authorities felt he would be safe and his health requirements met.
And
12. Qualified medical practitioners unfamiliar with his disorder may have difficulty interpreting the early warning signs, which could easily be attributed to a range of conditions.
13. Treatment of an acute attack may need a comprehensive medical response from a medical team including immunological, respiratory and ENT specialists. After trialing many medications, Paul is on Stanazolol as well as antihistamines. This steroid can have a damaging effect on the liver, which needs to be regularly tested.
14. Paul’s condition is potentially life threatening. Family members have built up a body of knowledge about Paul’s condition and I understand they regularly check on his well-being throughout the day. If Paul is incarcerated it will be important he is carefully monitored by Prison as well as medical staff.
15. It is very important that Paul avoids becoming cold. The winter months, particularly in a cold climate, may increase his risk of reactions. Cold air in winter has provoked reactions.
This information was available to the sentencing Judge as was an affidavit from the Regional Health Services Manager with the Department of Corrections. She described the services available to inmates and gave it as her view that the Special Needs Unit at Mt Eden Prison would be a suitable location for a person with Paul’s condition. She said the unit was centrally heated and kept at a constant temperature. She described other steps that would be taken to deal with the condition and special privileges regarding clothing that would be allowed in Paul’s case.
The Sentence
Both brothers were sentenced together. The sentencing Judge outlined the facts and referred briefly to Paul’s medical condition. He decided that in Paul’s case the appropriate starting point was six years imprisonment and for David, four years. In sentencing Paul he identified the seriousness of the heroin charge and commented that Paul clearly had access to commercial sources for a drug of that nature. He referred to the plan to import the methamphetamine. He said that in mitigation he accepted that a guilty plea was made at a very early stage and that he was a first offender. He also said that Paul was entitled to:
Some credit for the fact that you are likely to suffer more from a sentence of imprisonment than many other offenders. The state of your health will mean that the time you spend in jail will be harder than most.
He then said:
[32] So far as your expressions of remorse and attempts at rehabilitation are concerned, I am prepared to accept for the purpose of this sentencing that you are now remorseful but I have real scepticism about your attempts at rehabilitation given that they came so late in the piece. I will simply treat it as a neutral factor in your sentencing at this stage.
[33] But in terms of aggravating features, they too, are serious. The quantities of methamphetamine which you intended to import also indicate that you had ready access to commercial sources for that drug. The quantity to be sent in over a period of time was substantial. The scheme was sophisticated and indicates that it was planned carefully.
[34] You have been an addict, consequentially you are assessed at a high risk of re-offending. I am left in doubt as to whether you would re-offend but I would strongly urge you to make the most of this experience and make sure that you never ever appear before this Court again. Had I been satisfied that you had demonstrated some real inclination to reform your ways I may have been minded to be a little more lenient. But I am sceptical at the end of the day and that would simply have reduced what I would have imposed rather than done anything different.
[35] There is a need to deter this type of offending and that needs to be coupled with public condemnation of offending such as this. Those are high priorities for a sentencing Judge which cannot easily be outweighed by personal circumstances.
He sentenced Paul to four years imprisonment on the charge of conspiracy to import methamphetamine and three years imprisonment on each of the other charges, all to be served concurrently.
In the case of David, he noted that he was motivated by a misguided desire to help his ill brother, rather than by monetary gain, that he was assessed as having a low risk of reoffending and that he was entitled to credit for his early pleas of guilty. He took a starting point of four years imprisonment and gave a discount of 50 per cent for the factors mentioned above. He sentenced David to two years imprisonment on each charge, to be served concurrently and granted leave to apply for home detention.
There has been no appeal in respect of David’s sentence.
The arguments in this Court
Further information relating to Paul’s health has been placed before this Court. There is an affidavit from the appellant. He says that the prison authorities are doing all they can but despite that, his cell is too cold for him. He says his mattress is on top of a concrete slab and the cold comes right through and that since he has been in prison he has been ill three times and that on the third occasion he has had to go to intensive care for nine days. He says he is on the maximum limit of medication and he has been continually unwell with sweating and headaches. He describes the consequences of being in the Special Unit. He is often locked in his cell for long periods. Each day he is locked up at 4.30 p.m., whereas in other parts of the prison people are not locked up until 7.00 p.m. He has not been outside into the exercise yards because of concerns as to his safety and because it is too cold to go outside. He is not allowed contact visits and is not allowed television, radio, pictures or photos on the wall of his cell and is not allowed other privileges such as canteen and telephone calls that are available to inmates in other parts of the prison. Because of his illness he has difficulty focussing and as a consequence, reading. And he refers to the cell lights being on for 24 hours a day, although dimmed at night.
Dr Ameratunga has filed a further affidavit. He says:
7. Paul was reviewed by me on 24 July 2002. He indicated he had been exposed to cold and was suffering from headaches and body aches.
8. Paul was admitted to Ward 9C at Auckland Hospital on Saturday 10th August after suffering an attack of delayed cold induced angioedema. He was suffering from swelling of the pharynx and limbs. He also complained of a sore chest. He was treated with high doses of Prednisone, antihistamines, Tranexamic acid and Stanazolol, as well as analgesia.
9. I would describe his condition at admission as serious but not life threatening. He has improved since his admission to hospital. He was discharged from ward 9C on 19 August 2002.
10. It is likely that Paul developed his symptoms as a result of exposure to the cold. The temporary unavailability of Stanazolol, as result of a world-wide shortage may also have contributed to his recent deterioration. Currently adequate stocks of Stanazolol are available.
11. The ongoing difficulty with Paul’s condition is that relatively short periods of exposure to cold can trigger attacks.
There is also a further affidavit from Paul’s mother.
There was a further affidavit filed on behalf of the respondent by the Regional Health Services Manager with the Department of Corrections. She notes that although Paul is housed in the special needs unit he has privileges which are not available to other inmates in that unit. He is allowed to wear a beanie and to have extra clothing. He has extra blankets. He has an oil-filled heater in his cell. The mattress is insulated from the concrete by a number of blankets. He is locked in his cell for the same periods as other inmates in the unit. He is not allowed contact visits with his family in accordance with the policy for all inmates of the special needs unit. She confirmed that he is not permitted television, radio or pictures and photographs on the walls, again, in line with other special needs inmates. She concludes that she is confident that the care currently being given to the prisoner takes account of his medical condition and health requirements and includes on-going communication with Dr Ameratunga.
Mr Gotlieb, for the appellant, submitted:
That there is an unjustified disparity between the sentence imposed on Paul and that imposed on David.
That the way in which the appellant is having to serve his time amounts to cruel or disproportionately severe treatment or punishment and is in breach of s.9 of the New Zealand Bill of Rights Act 1990.
The conditions in which Paul is serving his sentence are, because his state of health requires him to be held in the special needs unit, much more onerous than would normally be the case. He submitted that a person serving a sentence for drug offences and raising no issues of security, would normally be held on a prison farm and would have a much greater degree of freedom as well as being able to have television and radio in his cell and pictures on the walls.
In his oral elaboration of these submissions Mr Gotlieb concentrated on the third of them. We do not consider that a case was made out in respect of the first two submissions and do not find it necessary to address them further.
Mrs Kiernan, for the Crown, accepted that if the appellant were in normal health he would, in the circumstances, be likely to serve his sentence on a prison farm. She acknowledged that the comparison between the conditions in which Paul is being held, and those in which he could be held but for his state of health, were not made known to the sentencing Judge. She also acknowledged that the Judge’s concerns about Paul’s inclination to address his drug problem should now be seen in the light of a further report which indicates an improved attitude. She acknowledged too, that the other inmates in the special needs unit had severe emotional and psychological problems and this was another factor distinguishing the conditions in which Paul was held from those which would normally apply.
Consideration
It has long been recognised that where, due to a medical condition or disability, prison would constitute a more severe penalty for the particular offender, some leniency may be shown in sentencing. In R v Lane (CA184/81, 7 December 1981) the appellant had pleaded guilty to charges of supplying heroin and of selling cannabis. The heroin charge involved the supply of 29 grams of the drug. The appellant was sentenced to 18 months imprisonment. He was a tetraplegic, paralysed from the neck down and requiring 24 hour care. This Court accepted evidence that the prison could provide adequate care for the appellant but considered that in a case such as that one, imprisonment must be a particularly grievous penalty. The Court said:
It is obvious that imprisonment will always impose physical and emotional hardship on the person concerned and his family. Where a custodial sentence would impose a particular degree of hardship due to the health or other personal circumstances of the accused, that is a proper consideration to be taken into account by the sentencing Judge. In some circumstances the dominating effect of such considerations may lead to the imposition of a non-custodial sentence where ordinarily there would have been a sentence of imprisonment.
The Court noted that in normal circumstances the appropriate sentence would have been in the order of six years imprisonment. The sentence of 18 months was not disturbed. There have been a number of other cases where similar factors have been taken into account.
In England and in Australia an offender’s medical condition will in certain circumstances justify the imposition of a lesser sentence. The English Court of Appeal in R v Bernard [1997] 1 Cr App R (S) 135 derived from the authorities four principles as to the relevance of ill health to sentencing:
(i) a medical condition which may at some unidentified future date affect either life expectancy or the prison authorities ability to treat a prisoner satisfactorily may call into operation the Home Secretary’s powers of release by reference to the Royal Prerogative of mercy or otherwise but is not a reason for [the] Court to interfere with an otherwise appropriate sentence;
(ii) the fact that an offender is HIV positive, or has a reduced life expectancy, is not generally a reason which should affect sentence;
(iii) a serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate … ;
(iv) an offender’s serious medical condition may enable a Court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.”
A leading Australian case is R v Smith (1987) 44 SASR 587 which treated the issue of ill health and sentencing in the following terms:
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 on 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.
The humanitarian principle illustrated by the cases referred to above now finds statutory expression in New Zealand in s.8(h) of the Sentencing Act 2002. That clause provides that in sentencing an offender the Court:
must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe;
The Judge did take into account the appellant’s medical condition. However, he did not have before him the information provided to us on the comparison between the conditions in which the appellant is being held and those which would normally apply. Indeed, Mr Gotlieb, despite his experience in criminal matters, acknowledged that he was not aware of how the special needs unit operated or of the degree of deprivation involved in comparison with more normal conditions.
Mr Gotlieb acknowledged that the Prison Service was doing all it possibly could in relation to the appellant’s condition. We are satisfied that from the medical point of view the appropriate care can be given. However, the consequence of this is that because of the conditions in which he must be held, the appellant is subjectively receiving much more severe punishment than would otherwise be the case. That in itself justifies a reduction of sentence greater than that given by the sentencing Judge.
The sentencing Judge gave a discount of one-third from the starting point of six years imprisonment. We accept that a discount of that order would appropriately take into account both the guilty plea and the subjectively greater severity of imprisonment for the appellant as far as the information before the sentencing Judge could indicate that. But such information has proved inadequate in this unusual case.
The additional information which we have and which is outlined above, satisfies us that a greater discount is justified. In R v Lane (supra) the sentence upheld represented a reduction of 66 per cent on the sentence which would otherwise have been appropriate. In R v Gallagher (1994) 9 CRNZ 421 a 70 year old man with a variety of medical conditions, convicted on indecent assault charges received a discount on the sentence that would otherwise have been applicable of over 50 per cent. The appellant’s poor health was the major reason for that discount.
Other decisions where similar factors have been taken into account include R v Potter (1994) 12 CRNZ 109 and R v Jacob (CA314/92, 30 October 1992).
We are satisfied taking into account the general principles adopted in this country, in England and in Australia and the decisions of this Court referred to above, that the appropriate reduction in this case to recognise both the plea of guilty and the medical and other factors referred to above, is 50 per cent.
Accordingly, we allow the appeal. On the charge of conspiracy to import methamphetamine the sentence is reduced from four to three years imprisonment. No change is made to the other sentences imposed. All sentences are to be served concurrently.
Solicitors
J. Bergseng, Auckland for Appellant
Crown Solicitors, Auckland
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