New South Wales Court of Criminal Appeal CITATION : R v Maarbani [2001] NSWCCA 509 FILE NUMBER(S) : CCA 60447/00 HEARING DATE(S) : 17 October 2001 JUDGMENT DATE : 13 December 2001 PARTIES : Regina Brian Maarbani JUDGMENT OF : Wood CJ at CL at 1; Grove J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0085 LOWER COURT JUDICIAL Phelan DCJ OFFICER : COUNSEL : W Dawe QC B. Brassil (Sol) SOLICITORS : S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - maliciously inflict grievous bodily harm - supply prohibited drug - whether sentence manifestly excessive - offence not trivial and sentence properly reflected totality of criminality involved - applicant developed condition of idiopathic epilepsy while in prison - whether illness present at time of sentencing, although quiescent - ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health - imprisonment likely to exacerbate condition of applicant - special circumstances found to exist to justify intervention - reduction in non-parole period only. DECISION : Appeal allowed. New non-parole period set IN THE COURT OF CRIMINAL APPEAL 60447 of 2000 WOOD CJ AT CL GROVE J THURSDAY 13TH DECEMBER 2001 REGINA V BRIAN MAARBANI Judgment 1 WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of a sentence imposed upon him by Judge J B Phelan, in the District Court at Wollongong, on 11 July 2000. 2 His Honour had before him, on that occasion, an appeal from the Local Court at Wollongong, against a sentence of six months imprisonment for breach of a Community Service Order, which had been imposed for an offence of maliciously inflict grievous bodily harm; as well as one count on an indictment for a charge of supplying the prohibited drug methylamphetamine. 3 In relation to the last mentioned matter, seven further offences were taken into account on a form 1, comprising offences of driving while disqualified, cultivation of cannabis plants, drive in a manner dangerous, negligent driving, driving an unregistered and unlicensed vehicle, and negligent driving. The six month sentence imposed in the Local Court was confirmed. For the count on the indictment, taking into account the form 1 offences, the applicant was sentenced to imprisonment for two years and six months, with a non parole period of eighteen months, each to commence upon expiry of the six months term, ie upon 4 November 2000. 4 As a consequence of this further sentence, and the confirmation of the sentence below, the applicant is due to serve a total custodial period of two years which was due to expire on 3 May 2002, with an additional period subject to supervision on probation of twelve months. 5 Two grounds of appeal are relied upon the first of which was raised only during the hearing of the appeal. It was to the effect that having regard to the small quantity and low purity of methylamphetamine involved, the sentence imposed was manifestly excessive. 6 The offence was detected during a police operation which had targeted the Kentucky Fried Chicken (KFC) car park at Warrawong. At about 3pm. on 10 August 1998, the applicant was seen to drive into the car park and speak to a person who had been waiting there for some time. When police made their presence known the pedestrian fled. The applicant's motor vehicle was searched, and three plastic packets containing pink powder were observed. When tested, they were found to contain 9.5 gms of the prohibited substance with a purity of 2.5%. the indictable quantity for methylamphetamine, it may be noted, is 3 gms. 7 The offence here involved cannot be dismissed as trivial, as the applicant sought to argue. The sentence imposed needs to be considered in the light of the number of matters taken into account on the form 1. Of those, the offences involving the cultivation of cannabis plants and drive in a manner dangerous, were particularly serious. 8 In sentencing the applicant, his Honour was justified in properly reflecting the totality of the criminality that was involved in relation to the count on the indictment, and the form 1 matters, in accordance with the decision in R v Morgan (1993) 70 A Crim R 368. 9 Having regard additionally to the unsatisfactory criminal history of the applicant, which revealed a consistent pattern of offending, dating back to 1994, and disobedience to various Court orders, constituting a record which his Honour fairly described as "rather appalling", there is no merit in this ground. 10 I turn next to the circumstance disclosed in an affidavit sworn by the applicant to the effect, that since being taken into custody, he has developed a condition of idiopathic epilepsy. He says that this condition has led him, since December 2000, to suffer fits involving a loss of consciousnesses, and on occasions minor injuries. From March 2001, he has been prescribed medication, including Dilantin, Deseryl, Epilim 500 and Tegeratol. 11 Some of these medications have disagreed with him, and they have not been entirely successful in preventing his fits. This condition the applicant has sworn, in an affidavit filed for the purpose of the appeal, had not manifested itself at the time he appeared for sentence. 12 In a report prepared for the purposes of this application, Dr. John Lawson, a consultant physician, has advised: "It appears that a diagnosis of Idiopathic epilepsy has been made. In this condition a patient is affected by unpredictable seizure episodes where, in the case of grand mal epilepsy, there is loss of consciousness as well as repeated tonic/clonic body and limb movements and possibly loss of control of bladder and bowel. The muscle contractions occurring during epileptic seizure are mostly violent, very forceful and totally uncontrolled. There is a significant risk of injury in the absence of assistance and first aid. Injury may result from falling or be as a result of body and limbs forcibly striking walls, floor or other objects Damage to teeth and aspiration of fluid or vomitus may occur resulting in pneumonia and other, more severe, respiratory affects including respiratory arrest. Many epileptics experience an aura which may provide some warning of an impending fit, but this is usually of brief duration and may lead rapidly to the onset of seizure and loss of consciousness, which would prevent the patient obtaining assistance. Most seizures of the grand mal type are followed by a period of impaired consciousness during which the patient requires supervision and rest. Epilepsy is a serious medical condition which requires regular medication and supervision regarding the adequacy of the treatment with, in many cases, assessment of blood levels of the anticonvulsant treatments. The medication can be taken daily in some cases, but with some of the anticonvulsant treatments twice or three times daily may be required. Conditions which can aggravate the severity of epilepsy include sustained anxiety, further injury and febrile illness. It is probable that conditions of prison will engender levels of anxiety which would increase the risk of seizure. Considering the conditions of imprisonment it would be difficult, in my opinion and experience, to provide appropriate supervision and immediate first aid as required to the epileptic prisoner. There would be unnecessary increased risks of injury and serious consequence of failure to supervise the prisoner during the epileptic seizures. After the fit impaired consciousness and possible altered behaviour may cause difficulties in relationship to another present inmates. It could be difficult to guarantee appropriate administration of anticonvulsant medication in the cell. Supervision of appropriate blood tests and probable treatment for any other inter-current illness, particularly febrile episodes, would prove a problem in the average prison environment." 13 The Crown opposed the application upon the basis that proof of the onset of an illness, which was not evident at the time of sentencing, provides no basis for appellate intervention. While it accepts that evidence of a worsening of a condition, which was known to exist before an offender was sentenced, can properly attract appellate intervention, of which the case of R v F NSWCCA 21 May 1998, and R v Azar [2000] NSW CCA 26 provide examples, the proper remedy, in a case such as the present, it submits, lies with the Executive. 14 This principle was said to derive from observations in the judgment of this Court in R v L NSW CCA 17 June 1996 at p7, and of Carruthers J, in Jones (1993) 70 A Crim R 449 at 456/457. In the first of these decisions the Court said: "The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. R v Vachalec (1 981) 1 NSWLR 351 per Street CJ at 353-4. If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989, preserves the Royal prerogative of mercy, and s 25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other 'exceptional extenuating circumstances'." 15 Street CJ in Vachalec said: "This Court as the Court of Criminal appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has not power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government." 16 Further, there is the passage in the judgment of Hunt and Badgery-Parker JJ, in R v Cartwright (1989) 17 NSWLR 242 at 257: "This Court has in some sentence appeals received evidence as to circumstances which, although in existence at the time of sentencing, were not discovered until after the sentence under appeal had been imposed. The example which comes most readily to mind is the discovery that the particular appellant has been infected with the AIDS virus and accordingly has had to be segregated in the Malabar Assessment Unit: cf R v Bailey (1988) 35 A Crim R 458 at 452. … Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this Court: R v Munday [1981] 2 NSWLR 177at 178." 17 The current state of authority would appear to preclude reference to a condition which came into being only after sentence was pronounced. There is, however, precedent for the Court intervening in cases where the relevant medical condition was present at the time of sentencing, although quiescent but became symptomatic subsequently. In R v Vento NSW CCA 6 July 1993, (a case cited without disapproval in R v L), in R v Stebbings (2001) NSWCCA 262, and in R v Eliasen (1991) 53 A Crim R 391, the Court intervened in cases of that kind. 18 By reason of an inherent uncertainty in Dr Lawson's initial report as to whether the applicant's condition existed at the time of sentencing, but did not become symptomatic until later, the hearing of the application was adjourned, to allow additional evidence to be received. 19 That evidence was provided in the form of two further reports from Dr Lawson, the second of which noted by way of an addendum to the earlier reports: "It is reasonable to view the condition of (the applicant's) epilepsy present at the time of his court attendance and conviction , but quiescent." 20 The Crown did not seek to have him medically reviewed, nor did it place any additional evidence before us, although it was given the opportunity to do so. 21 I am persuaded, in view of this report, that it is properly open for us to examine the evidence which has been tendered and to review the sentence in the light of the principles laid down in the oft cited decision R v Smith (1987) 44 SASR 587 where King CJ at 589 said: "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." 22 As has been subsequently noted in decisions such as McDonald (1988) 38 A Crim R 470 at 475, and L, and Peuna NSW CCA 15 July 1992, the fact that the stress of imprisonment would be likely to exacerbate the condition of an applicant can properly provide a reason for intervention. Additionally, there are cases, of which Vento and R v Dowe NSWCCA 1 September 1995 provide illustrations, where the nature of the applicant's illness is such as to justify intervention as a matter of common humanity. 23 The approach which the Court should take, in such a case, consistent with the flexibility of the sentencing process and the discretion attached to it, was succinctly and helpfully noted in Sopher (1993) 70 A Crim R 570, as follows: "Health and age are relevant to the length of any sentence but usually, of themselves, would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live, or need intense treatment, which cannot be provided in gaol. There may be circumstances where, to keep a person in gaol would probably lead to his early death, and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health, or shortening of life. The Department of Corrective Services has the responsibility of providing for health care, but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases, what the Department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant mater to take into account." 24 The realities of prison life, and the practical problems involved in responding urgently to the needs of a prisoner who suffers a fit and in monitoring his or her condition, do need to be taken into account: Burrell (2000) NSWCCA 262. 25 Having regard to the matters noted in the report of Dr. Lawson, which suggests that the applicant's condition is likely to be exacerbated by the stresses of imprisonment, and which also identifies the practical difficulties in properly caring for him, with the consequent risk of injury and increase in the burden of the custodial portion of the sentence, I am of the view that it is proper to intervene. I observe that in some recent cases, with similarities to the present case, such as Azar (2000) NSWCCA 26, Friedmann (2000) NSWCCA 262 and Penman (2001) NSWCCA 308 this court has adjusted either the sentence as a whole or the non-parole period, so as to reflect the changed medical circumstances of the offender. 26 In determining what should here be an appropriate sentence, I consider it proper to take into account the progress which the applicant has made towards rehabilitation, both in relation to the courses which he has completed, and in relation to the steps he has made towards overcoming his previous addiction to drugs. The proper course, in my view, is to find that special circumstances additional to those found by his Honour exist, in relation to the condition of epilepsy, which has become symptomatic, and which is better treated outside the gaol system, under the supervision of the Probation and Parole Service. I am not inclined to alter the head sentence, which was entirely appropriate for the criminality which was involved. Moreover, the applicant needs to be reminded of the risks of reoffending, and of the hardship which will attach if he breaks his parole. 27 I would accordingly propose that the Court intervene, only to the extent of quashing the non-parole period and of substituting therefore a non-parole period of fourteen months, to expire on 3 January 2002. I would direct the release of the applicant on probation supervision on that date subject to the conditions specified in the Regulations and subject to a condition that he observe such reasonable directions as he may be given as to drug rehabilitation. 28 GROVE J: I agree with Wood CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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