Bekink v R [1999] WASCA 160

Court of Appeal (WA)|1999-09-02|Before: Heenan J, Ipp J, Anderson J

The applicant deposes that once a month he is allowed to select three books from a trolley within the unit but otherwise he is denied access to a library. Fresh air and sunlight are denied to him and he has no access to recreation or physical activity apart from walking up and down a 20 to 30 metre corridor. He is allowed out of his cell for two contact visits per week, each of one hour, and to instruct his solicitor. About seven weeks ago he applied for permission to attend education classes. Since then he has attended two such classes, for an hour on each occasion, which have been held during the 2¼ hours that he has been allowed out of his cell.

28 On behalf of the applicant counsel asserted that his fortuitous involvement in the regime has made imprisonment more onerous for him than the sentencing Judge contemplated. He submitted that had his Honour been aware of it at the time of sentencing, it would have been a significant factor in mitigation of penalty and, therefore, that this Court now should reduce the sentence.

29 When a court decides to sentence an offender to imprisonment it goes on to fix the length of the term. In doing so usually, as in this case, it will have no information before it as to the prison to which the offender will be sent or as to what regime will apply to him. They are matters for the prison authorities into whose custody he is entrusted. But sometimes the court will be given information showing that imprisonment by its very nature will impose hardship upon a particular individual which is much greater than upon the average person - for example, in the case of a tribal Aborigine, a blind person or a woman with a newborn baby. In other cases - for example, that of an informer or a person with the AIDS virus - the information will demonstrate a necessity for the prisoner to be kept in protective custody or in some other form of comparative isolation. In any of those cases the sentencing court might impose a term shorter than usual. The same approach might be adopted if, for example, the sentencing court were informed that a large minimum or medium security prison were destroyed by earthquake or flood, so that all prisoners, or even a particular group of prisoners, would be subject to unduly onerous conditions for a substantial period. Thus, had Williams J been aware that the applicant would be subject to the particular regime in question throughout his time in prison, his Honour might well have imposed a sentence of less than three years imprisonment. Of course, one cannot say now precisely how much less it would have been.

30 Generally an appellate court will not intervene upon the basis of events which have occurred since the imposition of sentence. As Crockett J observed in Eliasen v The Queen (1991) 53 A Crim R 391 at 394,

"Applications for leave to appeal are dealt with on the basis that, unless the sentencing Judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by reference to the matters available to be considered by the Judge at the time that he determines upon the sentence."

However, in Eliasen's case and in the two earlier cases of R v Smith (1987) 44 SASR 587 and Bailey v Director of Public Prosecutions (1988) 35 A Crim R 458 the appellate court did receive evidence as to events occurring after sentence on the basis that the further evidence tended to show the true significance of facts which were in existence at the time of sentence. In each of those three cases the court considered evidence of the offender's medical condition showing that imprisonment was a greater burden upon him than upon the average prisoner by reason of his state of health. In Smith and Eliasen the court did reduce the effective term of imprisonment. In Anderson v The Queen (1997) 92 A Crim R 348 the court reduced the sentence after admitting fresh evidence as to relapse of the leukaemia from which the offender's youngest child was suffering. The court granted the appeal because of the exceptional measure of hardship to which the offender and his family otherwise would have been subject and also because the fresh evidence shed new light on matters which had already been considered by the sentencing judge in mitigation of penalty. Similar considerations were taken into account by the appellate court in R v Rostom [1996] VicRp 60; [1996] 2 VR 97 when it reduced the sentence of an informer who was placed in protective custody. There are significant differences, however, between those cases and the present one.

31 In the present case, although the applicant has been subject to the regime for twelve weeks prior to the hearing of the appeal, there is no evidence before the Court as to whether, or for how long, he will continue to be subject to it. It is likely that within the near future he will be moved to another unit - or even to another institution - when more suitable accommodation becomes available and it is very likely that he will be released at the end of the statutory non-parole period. It would be wrong, therefore, to assume that he will be subject to the same regime for the remainder of his three year term and to reduce his sentence substantially on that basis. On the other hand, if the Court were to reduce his sentence by one month or six weeks - for what it might regard as the undue hardship which he has endured already - would it be faced with a similar application twelve weeks further on if the situation had not changed? In either event, would not any such reduction be fairly perceived as tinkering with the sentence? These are merely some examples of the practical difficulties that such an approach would bring.

32 The deterrent effect of imprisonment must finally lie in the loss of liberty and the consequent loss of other rights which is involved. Idleness and confinement in a cell for too many hours each day are demoralising factors which tend to cause resentment without reinforcing the deterrent effect. Of course, the prison authorities are well aware of that and, I assume, are doing their best to alleviate the problem. In my opinion it is not appropriate for the Court to intervene by way of review of the sentence.

33 I would refuse the application for leave to appeal.

CITATION : BEKINK -v- R [1999] WASCA 160

9 There are several other instances where courts have had regard to factors which render the imprisonment of a particular individual more arduous than the norm. See, for example, R v Todd (1976) Qd R 21, where an offender was blind, Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 62 ALJR 319 where the prisoner was infected with the AIDS virus, and R v Perez-Vargas (1986) 8 NSWLR 559 where the prisoner was an informer. In Juli (1990) 50 A Crim R 31 Malcolm CJ noted (at 37) that:

13 Secondly, our legal system is founded on equal justice before the law, and as Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301), "equal justice requires that like should be treated alike". This is the foundation of the parity principle of sentencing. When half of the prisoners in Casuarina Prison are subjected to the lock down conditions, and half are not, and where the choice as to which prisoners fall into which half is made arbitrarily and fortuitously, justice is not equal. The applicant is receiving punishment of a more severe quality and greater intensity than those to whom the lock down does not apply. This gives rise to a marked and irrational and, indeed, grossly unfair, disparity between the treatment of offenders. I do not suggest that the parity principle in its ordinary form is applicable in this case, as that principle operates only in regard to co-offenders: Krakouer v The Queen [1999] WASCA 147 and cases cited there. What is applicable, however, is the paramount and more general principle of equal justice before the law.

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