R v Hammond [2002] ACTSC 11 (8 March 2002)

Last Updated: 19 March 2002

R v JOHN REGINALD HAMMOND [2002] ACTSC 11 (8 March 2002)

CATCHWORDS

CRIMINAL LAW - periodic detention - detainee taken to have failed to report for detention on at least three occasions - mandatory requirement for cancellation - whether sentence should be cancelled on compassionate grounds or offender released forthwith due to serious health problems - whether any period added to the sentence by virtue of s 25 must be served as well as the period for which the detainee failed to report or is really in substitution for that period - whether a period in which a detainee was ordered to leave the detention centre without having committed any breach of the Act counts as part of the sentence.

Periodic Detention Act 1995, s 25, subs 30(3), s 31

Smith (1987) 27 A Crim R 315

No. SCC 28 of 98

Judge: Crispin J

Supreme Court of the ACT

Date: 8 March 2002

IN THE SUPREME COURT OF THE )

) No. SCC 28 of 98

AUSTRALIAN CAPITAL TERRITORY )

R

v

JOHN REGINALD HAMMOND

ORDER

Judge: Crispin J

Date: 8 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The periodic detention order be cancelled.

2. It be declared that the term of imprisonment that the respondent is liable to serve pursuant to s 31 of the Periodic Detention Act 1995 is a term of forty-three weeks imprisonment.

3. The warrant of committal be endorsed with a notation recording my recommendation that the respondent be regarded as a "prisoner at risk".

4. The respondent be released after serving a period of three months from this date upon giving security by entering into recognizance, himself in the sum of $1,000 to be of good behaviour for a period of three years subject to the condition that he will, during that period, be subject to the supervision on probation of the Director of Adult Corrective Services.

1. On 28 May 2001 I sentenced the respondent to a period of twelve months imprisonment and ordered that it be served by fifty-two periods of detention. An application was subsequently made for the cancellation of that order on the ground that the respondent should be taken to have failed to have reported to the Periodic Detention Centre on a number of occasions.

2. On 14 November 2001 I gave judgment finding that the respondent should not be taken to have failed to report on 29 June 2001 by virtue of an apparent failure to submit to a drug test on that day, but that he must be taken to have failed to report for three other periods because drug tests carried out on 8 June and 6 July 2001 had revealed the presence of prohibited drugs in his blood, and he had refused to submit to a further drug test on 20 July 2001. I observed that the provisions of subs 30(3) of the Periodic Detention Act 1995 ("the Act") are mandatory and that, subject to any other provision in the Act, the Court must cancel the periodic detention order if the person in question has failed to report or must be taken to have failed to report for three or more detention periods in relation to which leave of absence has not been granted. For the reasons then given, I held that there were no grounds on which cancellation of the periodic detention order could be resisted. I noted that s 31 provides that as a consequence of such cancellation any remaining periods of detention are to be served as a separate term of imprisonment imposed at the time of cancellation and calculated at the rate of one week for each unserved detention period. I observed, however, that s 32 of the Act authorised the Court to direct that the person be released forthwith or after serving a specified part of such a term of imprisonment upon giving security to the satisfaction of the Court that he or she will be of good behaviour for such period as the Court specifies in the order and will comply with such conditions as the Court considers appropriate. I was unable to determine whether or in what manner to exercise this power because the respondent was in a precarious physical condition due to serious spinal and respiratory problems, and the evidence then available did not allow me to adequately assess his capacity to serve a prison sentence. Accordingly, I ordered that a further pre-sentence report be provided so that I might make my decision on the basis of more comprehensive evidence than was then available.

3. That report has now been provided and I have also had the opportunity of reading updated medical reports concerning the respondent's present condition. The evidence confirms that he suffers from a number of medical conditions. He has degenerative lumbar spondylosis with extensive degenerative changes in his lumbo-sacral spine. Surgery was earlier suggested as a possible means of alleviating this problem but the evidence now suggests that the extensive nature of the degenerative process and other medical considerations preclude this course. He also suffers from chronic obstructive pulmonary disease and asthma and these conditions are inter-related. In addition to these matters the respondent suffers from a chronic pain syndrome associated with his lower back problems. He has previously used morphine and Panadeine Forte to alleviate his pain but, unfortunately, has tended to over use them.

4. Dr Black expressed the opinion that whilst the respondent's lumbar spondylosis would preclude him from engaging in heavy physical work, it would not otherwise prevent him from undergoing detention. However, it is not clear whether Dr Black had been considering his fitness to undertake full time imprisonment or only weekend detention. Furthermore, he did not express any opinion as to the respondent's vulnerability to further injury as a consequence of any assault he might suffer. Dr Black noted that the respondent had claimed that he had felt claustrophobic and had had difficulty breathing whilst confined in a small airless cell with three other inmates during periods of weekend detention, but stated that he had not seen the respondent during these episodes and was unable to confirm the respondent's claims. He did confirm that he treated the respondent's partner who suffers from intervertebral disc lesion which from time to time causes severe pain and sometimes causes her to be bedridden. He said that at these times she requires the respondent's assistance.

5. As I mentioned in the earlier judgment, the present case presents something of a dilemma. Despite some perceptions to the contrary, prison is a harsh, stressful and sometimes brutal environment and a person with the respondent's disabilities might be virtually defenceless against any assault by fellow prisoners. The authorities no doubt do all they can to protect vulnerable prisoners but confinement under any conditions would undoubtedly be more onerous for the respondent than for others serving similar sentences. On the other hand, I am reluctant to relieve him from the obligation to serve the balance of a sentence which was already more lenient than that which I might have imposed had it not been for his physical condition. The Act does not permit me to require him to complete the sentence by periodic detention.

6. Mr Gill, who appeared on the respondent's behalf, urged me to cancel the sentence on compassionate grounds pursuant to s 26 of the Act or, alternatively, to order the respondent's immediate release pursuant to s 32. He pointed out that in addition to the sentence of periodic detention the respondent had been required to enter into a recognizance to be of good behaviour for a period of three years and argued that his obvious fear of incarceration would be sufficient to ensure compliance with that order. On the other hand, the learned Crown prosecutor argued that he should serve the sentence in full. The offences for which he had been sentenced were serious and he had been given the opportunity to avoid a sentence commensurate with their gravity but had repeatedly flouted the orders made in lieu of such a sentence. He had not complied with the periodic detention order since September 2001 and had failed to comply with conditions of the recognizance. In fact, he had repeatedly failed to keep appointments with his probation and parole officer, even during the period of the most recent adjournment, when the prospect of being required to serve a term of full time imprisonment had been clearly raised in my earlier reasons for judgment.

7. Despite the matters which Mr Gill has argued on his client's behalf, I am not satisfied that it would be appropriate to vary the sentence by cancelling the remaining periods on compassionate grounds or to order the respondent's immediate release. Whatever mitigating circumstances might exist in relation to the incidents in June and July 2001, the respondent has offered no explanation for his continuing failure to comply with the periodic detention order. His probation and parole officer gave evidence that the respondent seems to believe that his health problems can relieve him of the responsibility for his conduct. He said that the respondent's response to supervision has been mediocre and that he has given little indication even during the past month of any improvement in that response. He also expressed the opinion that there was a considerable risk of the respondent re-offending. I accept that evidence. In these circumstances, it would plainly be inappropriate for me to order the respondent's immediate release and, in effect, relieve him of any obligation to complete the balance of his sentence. Regrettably, it appears that some period in prison will be required to deter him from committing further offences and to ensure that he subsequently complies with the conditions of his recognizance.

8. However, the respondent's state of health is obviously relevant to the exercise of the discretion provided by s 32. As King CJ pointed out in Smith (1987) 27 A Crim R 315 at 317, "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". In my opinion the respondent's physical condition must be taken into account for both of these reasons.

9. In all the circumstances, I think it is appropriate to order that the respondent be released after serving a period of three months upon him giving security by entering into a recognizance, himself in the sum of $1,000 to be of good behaviour for a period of three years. It will be a condition of recognizance that he be subject to the supervision of the Director of Adult Corrective Services.

10. Having regard to the respondent's physical frailty and disabilities the warrant of committal should be endorsed to indicate that he is, in my opinion, a "prisoner at risk". That classification should ensure that the authorities are alerted to his vulnerable physical condition and take appropriate measures in order to protect him from other potentially violent prisoners.

11. Before leaving the matter I should mention that whilst the period of imprisonment is determined by the operation of s 31 without any further order of the Court, two issues were raised concerning the manner in which that period should be calculated and I am satisfied that it is necessary to determine those issues to prevent any error.

12. The first issue relates to the construction of s 25 of the Act, the relevant portions of which are in the following terms:

(1) Where a detainee fails to report as required for a detention period and has not been granted leave of absence in respect of that period, the detainee's sentence is suspended by 1 detention period for each detention period for which the detainee has failed to report.

(2) The term of a sentence may not be extended under subsection (1) by more than 2 detention periods.

13. This section had been interpreted by the applicant as requiring a further detention period to be added to the respondent's sentence, not in substitution for the period missed, but in addition to the periods which he or she would otherwise have been required to serve. Hence two periods had been added to his sentence. Mr Gill argued that this interpretation had been incorrect and that the section merely requires that a period of detention be served in substitution for any period for which a detainee fails to report. He argued that penal statutes should be strictly construed and that the Court should be loath to find that any provision has the effect of extending a sentence imposed by a judge or magistrate. He also argued that the construction for which he contended was supported by the terms of subs 25(2), which limit the operation of the section to two detention periods. Since failure to report for a third period results in virtually automatic cancellation of the periodic detention order, it is understandable that a substitutionary provision should be so limited. On the other hand, there would be no obvious reason for the legislature to have chosen to limit the operation of the section to two additional periods if it had been intended to provide a further punitive sanction. Consequently, Mr Gill argued that the term of imprisonment to be served by the respondent pursuant to s 31 should be calculated without reference to the two additional periods.

14. This submission was persuasively argued but I am unable to accept that the section should be interpreted in the manner suggested. The words employed in subs 25(1) make it plain that the sentence is to be "extended" by one period. The subsection also applies only to periods in respect of which leave of absence had not been granted and, since subs 24(7) provides that periods in respect of which leave of absence had been granted shall not be taken to have been served, the construction for which Mr Gill contends would mean that this distinction would be meaningless. It would also have the consequence that there could be only two substitutionary periods. Hence, the third absence relied upon as grounds for an application for cancellation would inevitably result in the sentence being diminished by one period and any further absences between that absence and the order for cancellation would similarly have the effect of reducing the sentence. Even if one were to ignore the terms of the explanatory memorandum that accompanied the Bill containing this section, it would be difficult to imagine that the legislature intended such a consequence. However any real doubt about the issue is effectively dispelled by the terms of the explanatory memorandum which state that the provisions of this section are "different from the situation where a leave of absence is granted in that for each detention period for which the detainee failed to report without a leave of absence an additional period is required to be served as well as the period for which the detainee has failed to report . . .". For these reasons, I am satisfied that the additional periods referred to in s 25 are not merely substitutionary, and that the two periods in question have properly been added to the respondent's sentence.

15. Mr Gill also argued that since I had found that the respondent should not be taken to have failed to report to the Periodic Detention Centre on 29 June 2001 he should be taken to have served that period. The Crown maintained that even if he had not committed any breach of the requirements imposed upon him by the Act, he had not spent the whole of the weekend in the detention centre and should be treated as if he had been on leave. The Act contains no provision specifically addressing this situation. However, the sentence required the respondent to attend for periodic detention between 6.00 pm and 7.00 pm each Friday until completion of the order and he clearly did so on this occasion. He then remained there until ordered to leave. In these circumstances I am unable to accept that his attendance should be simply disregarded. On the contrary, I am satisfied that he must be taken to have served the period commencing 29 June 2001.

16. The evidence put before me by the applicant suggested that there were forty-four detention periods outstanding. Having rejected Mr Gill's submissions concerning the effect of s 25 of the Act but accepted his submissions in relation to the period commencing 29 June 2001, I find that there are forty-three periods of detention outstanding. Accordingly, the term of imprisonment that he is liable to serve pursuant to s 31 of the Act is forty-three weeks imprisonment.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 8 March 2002

Counsel for the Crown: Mr K Hempenstall

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr S Gill

Solicitor for the: pappas, j. - attorney

Date of hearing: 26 February 2002

Date of judgment: 8 March 2002