Re Robert John Talbot v R [1992] FCA 5 (6 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: ROBERT JOHN TALBOT
And: THE QUEEN
No. ACT G47 of 1991
FED No. 54
Criminal Law
(1992) 59 A Crim R 383

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.

CATCHWORDS

Criminal law - Appeal against sentence - Offences of armed robbery and attempted armed robbery - Sentences set aside - Order for release without sentence upon entering into recognisance containing conditions - Addiction to Pethidine - Addiction enhanced by legal administration - Failure to properly exercise sentencing discretion - Exceptional circumstances.

The Queen v Spiero (1979) 22 SASR 543

The Queen v Baldwin (1988) A Crim R 465

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

"The Abolition of Man" C.S. Lewis (Geoffrey Bles)

HEARING

CANBERRA
6:1:1992

ORDER

1. The appeal be allowed.

2. The sentences be set aside.

3. In lieu of the sentences set aside the appellant be released without sentence upon his giving security by his own recognisance in the sum of $2,000.00 that:-
(i) he will be of good behaviour for three years from

this day;
(ii) he will comply with the conditions that -
(A) he will during the said period of three years be
subject to supervision on probation under the
Director of Adult Corrective Services or such
other person as the said Director may from time
to time appoint; and
(B) he will during the said period of three years
obey all reasonable directions of the said
Director and of any such other person so
appointed including but not limited to directions
with respect to his co-operative participation in
residential drug rehabilitation programs and
medical examinations and counselling programs and
with respect to the provision by him from time to
time of his body fluids for medical examination
and analysis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Appeal against sentences for armed robbery and attempted armed robbery.

2. The appellant was born in June 1963. On 17 February 1991 he attempted to commit armed robbery of an addictive drug in a chemist's shop in Manuka. A few minutes later he did commit armed robbery of that substance in another chemist's shop in Manuka. He pleaded guilty of each offence before a judge of the Supreme Court of the Australian Capital Territory, who found that "the offences were committed ... when he was in a severely disturbed state", and he was sentenced to 2 years' imprisonment for the attempt and 3 years' imprisonment for the armed robbery. It was ordered that the sentences be served concurrently, and that the period before the expiration of which he be not eligible for parole be 18 months. The addictive drug the appellant sought by the threat of violence to obtain was pethidine, to which he was addicted.

3. The foregoing account of two grave offences repeats the daily experience of the criminal courts of this and many other countries in the second half of this century, except that pethidine is not often the addictive drug craved. Even less often is the first step in the sequence of events which culminates in addiction to a drug one that involves no moral fault on the part of the person to be sentenced. But so it is in this case.

4. In 1979 or 1980 the appellant sought medical treatment for abdominal pain. One of the treatments was the administration of pethidine, to which he became addicted. Mr Crispin QC, who appeared with Mr Madden for the respondent on the hearing of the appeal, expressly accepted that the genesis of the addiction was the medical decision to administer the drug. The only unequivocal evidence before the Supreme Court to that effect was given by the appellant. For several years the appellant did not recognise the addiction. He did in fact experience abdominal and renal pain from time to time and deluded himself that he needed analgesic drugs, obtainable without prescription, and sometimes pethidine. He married in 1984. A daughter was born in 1986, another in 1990. The appellant was in responsible employment. But there was a transition from deluding himself to deluding medical practitioners so that he might obtain pethidine, by feigning abdominal pain. Having recognised the appellant's addiction, his wife left him in 1986 and again in 1988, but they were on each occasion reunited when he demonstrated his determination to overcome his addiction. She swore that he had never been violent to her or the children and that she remained willing to live with him and to support him in his endeavour to control his addiction. The transcript of her evidence before the Supreme Court suggests a perceptive, educated witness. By 1987 the appellant's addiction was known by a substantial number of medical practitioners in the Australian Capital Territory. He was convicted of receiving stolen property and of making false instruments: apparently the commission of the offences was motivated by his craving for pethidine, which he was also attempting to satisfy by the administration of other analgesics and benzodiazepines and alcohol. In November 1989 he was injured in a motor car accident in New South Wales. Admitted to a hospital where his addiction was not known, he was treated with pethidine. He was first seen by Dr. William Knox, a psychiatrist whose written report was in evidence before the Supreme Court, in March 1990, when according to that report "I found him to have difficulty in dealing with the ongoing neck pain and headache along with weakness and paraesthesia in the left arm that had resulted from the accident. I found him depressed and irritable and quite helpless in his approach to realistically grappling with his rehabilitation". The appellant had simulated attacks of renal colic on occasions in order to induce doctors to administer pethidine, but he had also experienced real attacks of renal colic and greatly feared the pain. In January 1991 he experienced the premonitory symptoms of an impending attack. He became very distressed and attempted suicide. In February 1991 he suffered a real attack of renal colic, for which he was treated in hospital. The treatment included the administration of pethidine. He was discharged about a week before he committed the two offences under present consideration. During the days preceding the offences he was distraught, his craving for pethidine enhanced by the administration of the substance in hospital and the deprivation of the substance which followed. There was in the house where the appellant was living an air pistol. There was no suggestion that the weapon had ever been used by the appellant or by any other person to his knowledge for any criminal purpose. That was the weapon the appellant used in the commission of the offences. The events in the course of which the offences were committed are stated in an agreed statement of facts which was before the Supreme Court, thus:

"At about 11.30 am on Sunday 17 February 1991 pharmacist Kim
Elizabeth Maloney assisted by one Tania Quach was on duty at the
Manuka Pharmacy, Manuka Shopping Arcade, Franklin Street Manuka.
Quach was serving a customer at a counter in the shop when the
prisoner walked past her cash register holding a black leather brief
case. Maloney who had been in the dispensary approached the
prisoner and asked him if she could help him. The prisoner said
`I'd like to speak to you' and walked towards her and then past her
in the direction of the dispensary. The prisoner placed the brief
case on a chair in the dispensary, opened it and said `I've got a
gun in here and I'll use it.' Maloney, who had followed the prisoner
into the dispensary, could see in the brief case the black Chinese
air pistol. The pistol is approximately 35 centimetres and black in
colour. The prisoner then closed the brief case and said `I want
pethidine." Maloney walked towards the safe in which the pethidine
was kept and told the prisoner that she did not have the keys, that
she was only in the pharmacy whilst the boss was at a church service
with the keys. The prisoner asked to see the safe and after the
Pharmacist told the prisoner another 2 times that she did not have
the keys he picked up the brief case and walked out of the Pharmacy.
He headed towards Nader's Pharmacy also situated in the Manuka
Arcade. In the dispensary area of Nader's Pharmacy was the
proprietor, Robert Nader, and his assistant Shelley Harper. There
were 2 customers, a middle aged lady and a 20 year old retarded man,
in the shop when Robert Nader saw the prisoner place the brief case
on the counter next to the cash register. Nader approached the
prisoner who asked `Do you have any pethidine?' to which the
pharmacist replied `Yes'. The prisoner repeated the question and
the pharmacist asked him for a prescription. The prisoner asked for
pethidine a third time and the pharmacist asked the prisoner whether
he was a locum doctor. The prisoner said `no' and the pharmacist
repeated that he had to have a prescription. The prisoner then
said:
`I have a gun in my bag, this is a stick up, get me the pethidine
or I'll shoot you, I'm dying of cancer, I don't care what I do,
get the Pethidine, now come on.'
As he was saying this the prisoner had his hands on the locks of the
brief case which he then opened. The prisoner took out the pistol
and pointed it at the pharmacist who was less than a metre from the
prisoner. The prisoner's fingers appeared to be on the trigger of
the pistol. The pharmacist walked through the dispensary to a back
room in which the safe was contained. The prisoner followed him,
pointing the gun at the pharmacist's chest. The assistant remained
in the dispensary area. The pharmacist explained that he had to
obtain the drug safe keys from a floor safe. The prisoner said
`Hurry or I'll shoot you'. The pharmacist removed the drug safe
keys and opened the safe. The prisoner who still had the gun
pointed at the pharmacist leant over the kneeling pharmacist and
removed one packet containing 5 ampoules of pethidine. Each ampoule
contained 100 milligrams of pethidine. The prisoner then said `is
that all you've got?' to which the pharmacist replied `Yes'. The
prisoner ran out of the pharmacy putting the pistol into the brief
case. The prisoner put the pethidine into the brief case and walked
out of the back room. The prisoner ran out of the pharmacy putting
the pistol into the brief case. The pharmacist followed the
prisoner and saw him drive away along Bouganville Street into
Furneaux Street. The pharmacist rang the police. The prisoner
returned to 50 discovery Street Red Hill where he injected himself
with the contents of the 5 ampoules of Pethidine before flushing the
empty ampoules down the toilet. He shaved off his moustache and
secreted the pistol under the flat behind some partitioning."

5. The report of Dr. Lord, to which reference has been made, includes the following passages:

"Mr Talbot's behaviour on 17 February 1991 must be seen in the
context of his severely disturbed behaviour during the course of
withdrawal from pethidine addiction which had occurred during his
treatment in hospital for renal colic some days earlier. The mental
suffering he experienced during the withdrawal phase from his
pethidine use clearly contributed significantly to his disturbed
behaviour on 17 February. Also his underlying drug dependent
personality played its part in motivating his behaviour on that day.
Outside of his drug related problems Mr Talbot sounds to be a
responsible, capable young man. There is no other history of major
inappropriate behaviour on his part. Although I hold the opinion
that Mr Talbot continues to be at risk of further drug associated
problems while he continues to attend the Woden Valley Hospital Drug
and Alcohol Treatment program, I believe that there is only a very
minimal risk of him re-offending.
It is my opinion that Mr Talbot is an exceptional case in respect t
o his use and abuse of drug substances and is not a typical drug
offender. Mr Talbot's problems, and certainly his most recent
serious offences, have flowed from medical treatment and the use of
addicting drug substances in the course of his treatment. He does
not associate with individuals involved in the drug world and is not
in any way a social user of any drug substances.
I would most strongly advise that Mr Talbot be allowed to continue
in his present treatment program which I expect will have very
beneficial results in the longer term, although clearly Mr Talbot
would need to take considerable care for the rest of his life. I am
of the opinion that a prison sentence would be very detrimental to
this man's rehabilitation and serve no useful purpose in assisting
his personal development."

No opinion at variance with that of Dr. Lord was in evidence before the Supreme Court. The report on the appellant furnished to that Court on behalf of the Adult Corrective Services of the Australian Capital Territory Housing and Community Services Bureau included recommendations similar to those of Dr. Lord. The counsellor at the Alcohol and Drug Service Unit at the Woden Valley Hospital, in whose care the appellant had been since March 1991, furnished a report which was in evidence before the Supreme Court and which indicated that the appellant had abstained since May 1991 from drugs other than the methadone administered to him in that Unit. The counsellor observed in the report:

"He would seem to function very adequately within the community and
work-force, and contributes positively towards his immediate family
when not preoccupied with drug-seeking or attempting to balance
intoxication and withdrawal features. I am therefore in support of
Robert continuing with the treatment regime currently established.
Due to the relapsing nature of his illness, I am unable to offer
long-term prognosis, but would recommend that Robert should remain
in treatment for some years. This agency is prepared to provide
that support for him."

The treatment regime to which reference is made is not available in prison.

6. The observations of the learned judge of the Supreme Court by whom the appellant was sentenced commenced with an account of the commission of the offences and of the appellant's disclosures to the investigating policemen of his experiences during the weeks which preceded their commission. His Honour then said:

"The stark facts of the offences demonstrate that these crimes are
very serious offences of armed robbery. I accept that the accused
was addicted to pethidine at the time but that fact is to my mind
not very mitigating. This court has said over and over again
establishments such as pharmacies must be protected as far as
possible from this sort of criminality. I turn to the subjective
considerations."

His Honour then narrated the course of the appellant's decade of addiction, misfortune and criminality since the commencement of his addiction, to which he referred as "following treatment for a renal colic attack". The learned judge continued:

"He has expressed his remorse for the commission of the offences and
for the terror he inflicted upon the occupants of the pharmacies.
He has written to both pharmacies apologising for his behaviour. I
accept those expressions of remorse as genuine.
For a number of years he has been held in high regard by his
neighbours. I accept the psychiatric evidence that the offences
were committed by the accused when he was in a severely disturbed
state, during a course of withdrawal from methadone addiction. He
is trying to rehabilitate from that addiction, and there are
encouraging signs of good progress. Unfortunately, these crimes are
too grave to allow the factor of rehabilitation to outweigh
considerations of specific and general deterrence.
The High Court of Australia has given clear indications that a gaol
sentence is normally to be imposed in respect of offences of armed
robbery except in most exceptional circumstances. Those
circumstances do not exist in respect of this accused in respect of
these offences."

(The reference to "methadone addiction" is either a subconscious displacement by the judge or an error in transcription.) The appellant was thereupon sentenced.

7. The learned judge's observation that the appellant's addiction to pethidine was "not very mitigating" suggests that he may have overlooked the difference in degree of moral culpability between, on the one hand, the drug addict whose addiction originated in voluntary administration of a substance known by him to be addictive, and use of which without medical prescription is known by him to be proscribed by the criminal law, and on the other hand the drug addict whose addiction originated in an administration, of a potentially addictive substance in the course of medical treatment, to which his consent was at best merely formal. The views which the learned judge of the Supreme Court was expressing in the passage from his reasons for sentence last quoted were given fuller expression by King C.J., in whose reasons for judgment Walters and White JJ. concurred, in The Queen v Spiero (1979) 22 SASR 543 at 548-549:

"It must be made clear beyond misunderstanding that when a person
engages in robbery, while armed with a weapon, he can expect, when
apprehended and convicted, a long sentence of imprisonment. Armed
robbery is a crime which leaves little scope for leniency even when
mitigating factors are present. In this case mitigating factors are
few. The appellant has a criminal record. He is addicted to
heroin. One feels sympathy for a person who has become entangled in
drug addiction, but the courts cannot treat addiction as an excuse,
or even a mitigating factor, in relation to serious crime. Those
who are addicted to drugs must understand that if they allow their
addiction to lead them into serious crime, they must expect to
receive the same severe punishment as would be received by others."

The observations of the learned sentencing judge match well also with a statement by Crockett J., in whose reasons for judgment Gray and Southwell JJ. agreed, in The Queen v Baldwin (1988) A Crim R 465 at 467-468, concerning the sentencing of a heroin addict on 14 counts of armed robbery:

"That deterrence is the primary consideration in cases such as this
has been emphasised over and over again in decisions of authority.
The existence of a case establishing the promise of rehabilitation
such as will displace deterrence as the critical component to be
considered will, in my view, need to be of very considerable
strength."

What in my opinion justifies the denial to the addict of leniency in recognition of the relative strength of his temptation to obtain his drug by armed robbery are on the one hand the magnitude of the community's need of protection from that offence and on the other hand the moral and legal fault which originated the addiction. It seems unfashionable - and, having regard to recently acquired knowledge of molecular biology, perhaps imprudent - to express moral judgments in sentencing criminals. But evaluation of moral culpability remains in my opinion as fundamental to our system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor. So much I think the reasons of Mason C.J., Brenan, Dawson and Toohey JJ. for their judgment in Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 make clear, particularly in their quotation (CLR at 473-474) from an article by C.S. Lewis. (Even more worthy of judicial citation is Lewis' "The Abolition of Man" (Geoffrey Bles).) There is no suggestion in the reports of Spiero's Case and Baldwin's Case (supra) that the addiction of either had originated in medical treatment. The appellant's addiction had not only originated in medical treatment : in November 1989 and again in the month when the offences were committed, February 1991, his craving for pethidine was stimulated by medically prescribed administration of the drug. The degree of moral responsibility of the appellant for the offences, in comparison with the moral responsibility of offenders of the kind King C.J. and Crockett J. had in mind, was in my opinion an exceptional mitigating circumstance which made it permissible for the sentencing judge to abstain from a sentence of imprisonment. He erred, in my opinion, in failing to recognise that material circumstance.

8. When attention is turned to the prospects of rehabilitation of the appellant, the evidence is seen to support the learned sentencing judge's opinion that "there are encouraging signs of good progress". There was also evidence, by the psychiatrist who had had the advantage of observing the appellant before as well as after the commission of the offences, that "a prison sentence would be very detrimental to this man's rehabilitation and serve no useful purpose in assisting his personal development". There is nothing elsewhere in the material which was before the Supreme Court, unless it were in the appellant's demeanour in the witness box or elsewhere in the court room, to induce a doubt of the correctness of the psychiatrist's evidence. The learned sentencing judge made no adverse comment on the appellant's demeanour or on his attitude to his situation. My conclusion is that upon a comparison of all the material before the Supreme Court and the sentences imposed the inference is compelled that there was a failure properly to exercise the sentencing discretion.

9. It was for the foregoing reasons that I concurred in the orders which this court pronounced at the conclusion of the hearing of the appeal, and which I thought to be the proper exercise of the sentencing discretion in all the circumstances. Those orders were:

1. The appeal be allowed.
2. The sentences be set aside.
3. In lieu of the sentences set aside the appellant be released
without sentence upon his giving security by his own
recognisance in the sum of $2,000 that:
(i) he will be of good behaviour for 3 years from this
day;
(ii) he will comply with the conditions that
(A) he will during the said period of 3 years
be subject to supervision on probation
under the Director of Adult Corrective
Services or such other person as the said
Director may from time to time appoint; and
(B) he will during the said period of 3 years
obey all reasonable directions of the said
Director and of any such another person so
appointed including but not limited to
directions with respect to his co-operative
participation in residential drug
rehabilitation programs and medical
examinations and counselling programs and
with respect to the provision by him from
time to time of his body fluids for medical
examination and analysis.

I have had the advantage of reading, in draft, the reasons for judgment of

Jenkinson J. I agree with the views expressed by his Honour and confirm my concurrence in the orders that the Court pronounced at the conclusion of the hearing of the appeal.

I agree with the reasons of Jenkinson J for allowing this appeal and for making the orders already pronounced in substitution for those made by the learned sentencing judge.

2. I would add only this. It appears that prior to the medical administration of pethidine consequent upon the motor vehicle accident in 1989, the appellant had successfully controlled his addiction. After that administration he again had difficulty in bringing his addiction under control. Nevertheless, he did so. That situation was disturbed by the administration of pethidine for the genuine attack of renal colic the appellant suffered some few days before these offences. It seems he had asked not to be treated with the drug.

3. His craving for pethidine, rekindled by an event for which the appellant was not responsible led to his uncharacteristic conduct.

4. Those facts, to my mind, add to the need for society to give to this appellant an opportunity to strengthen his evident resolve to control his addiction. It is to be hoped medical authorities will, in future, listen to such pleas as made by this appellant not to administer to him drugs to which he was addicted. The tragic consequences which occurred in this case illustrate the need for that caution.

5. I would further add that this case is, in my opinion, wholly exceptional. The upholding of this appeal should not be taken as any indication that armed robbery is to be regarded as any less serious because the offence is committed by a person who has chosen to indulge in illicit drug use. This is particularly so where, in contrast to the present case, such a person chooses not to avail himself or herself of rehabilitative opportunities made available by the community.

6. It should, perhaps, be added that it follows from the last comment that there is, I think, a moral duty on the community to ensure that sufficient rehabilitative opportunities are available to addicts. If there is not, the community must itself take some responsibility for the conduct of those who wish to be rid of a drug addiction, but are denied any realistic opportunity for rehabilitative treatment.