Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Grievous bodily harm - Criminal Code (WA) s 297 - Negligent transmission of HIV - Where no significant ill health suffered by complainant at time of sentencing - Where no real remorse demonstrated by appellant - Whether sentence manifestly excessive - Whether offence correctly described as at upper end of range of seriousness

Criminal law - Sentencing principles - Extra hardship in prison as mitigating factor - Prison conditions - Admission and relevance, on appeal, of evidence of hardship

Criminal law - Appeal against sentence - Where appellant's eligibility for minimum security rating, home leave and work release affected by possibility of deportation - Whether relevant consideration - Not appropriate to intervene regardless of conclusion as no different sentence should have been imposed in circumstances

Criminal Appeals Act 2004 (WA), s 31(2), s 31(4)(a)

Migration Act 1958 (Cth), s 200, s 201, s 501

Prisons Act 1981 (WA), s 35, s 87(3), s 87(4)

Sentence Administration Act 2003 (WA), Pt 4, s 54, s 55

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Bekink [1999] WASCA 160; (1999) 107 A Crim R 415

Chan (1989) 38 A Crim R 337

Dadswell v The Queen [2003] WASCA 212

Dauphin v The Queen [2002] WASCA 104

Davies (1978) 68 Cr App Rep 319

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions v Faure [2005] VSCA 91; (2005) 12 VR 115

Eliasen (1991) 53 A Crim R 391

Etrelezis v The Queen [2001] WASCA 327

Everett (1994) 73 A Crim R 550

Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992

Juli (1990) 50 A Crim R 31

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999

Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996

R v Boon, unreported; CCA SCt of NSW; 17 November 1983

R v Dica [2004] EWCA Crim 1103; [2004] QB 1257

R v Gooley (1996) 66 SASR 380

R v Gordon [2000] WASCA 401

R v Kasulaitis [1998] 4 VR 224

R v Konzani [2001] UKHL 10; [2005] 2 Cr App R 14

R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231

R v Mwai [1995] 3 NZLR 149

R v Rostom [1996] VicRp 60; [1996] 2 VR 97

R v Todd [1976] Qd R 21

R v Vachalec [1981] 1 NSWLR 351

Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995

Bruno v The State of Western Australia [2005] WASCA 149

Colledge v The Queen [2001] WASCA 132; (2001) 33 MVR 262

Hayes v The Queen [2003] WASCA 230

Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399

McCormack v The Queen [2000] WASCA 139

Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403

Stephens v The State of Western Australia [2005] WASCA 98

The State of Western Australia v Strawbridge [2005] WASCA 201

1 STEYTLER P: On 10 September 2004, after a retrial, the appellant was convicted of unlawfully doing grievous bodily harm to the complainant. He was sentenced on 16 November 2004 to a term of 4 years and 8 months' imprisonment, commencing on 18 June 2004. He was declared to be eligible for parole.

2 The facts relied on by the sentencing Judge for the purpose of sentencing were as follows. The appellant discovered, in 1990, that he had acquired the virus commonly known as HIV. In 1997 he met the complainant through an Internet chat line. He was then 30 years old and she was 16 years old. Over time, the complainant came to rely upon the appellant as a person in whom she could confide. She looked to him for advice and she trusted him completely. In early 1999, the relationship between the complainant and the appellant progressed, becoming a sexual relationship. They had unprotected vaginal sex on more than one occasion. They also had unprotected anal sex and unprotected oral sex. Save for one instance of anal penetration, the appellant withdrew, on each occasion, before ejaculating. At no time did he tell the complainant that he had acquired HIV.

3 In 2000, as a result of donating blood, the complainant found that she had contracted the virus. The complainant and her mother confronted the appellant. He denied that it was him who had transmitted the virus to the complainant. He provided the complainant and her mother with a piece of paper purporting to be signed by a medical practitioner to the effect that he was HIV negative. However, he had forged this document. The appellant also lied to a health worker who visited him. He told the health worker that he had never penetrated the complainant.

4 At each of his trials, the appellant never admitted that it was him who had infected the complainant. He denied that he had ever had anal sex with her and maintained that, on each occasion of vaginal sexual intercourse with the complainant, he had withdrawn before ejaculation. He also maintained that he had, at all times, an honest and reasonable, but mistaken, belief that the virus could not be transmitted if no bodily fluid was exchanged and that, by withdrawing before ejaculation, he could avoid an exchange of that kind.

5 When the appellant was sentenced by the sentencing Judge, he mentioned that the jury had rejected the appellant's defence of honest and reasonable, but mistaken, belief but made no finding on the question whether or not the verdict of the jury was to be approached upon the basis that the appellant had held an honest, but unreasonable, mistaken belief or upon the basis that he did not hold the belief which he claimed to have had at all. The matter was returned to him to make a finding in that respect. He did so on 2 December 2005. He found that the appellant had never held the belief that he claimed to have held. He accepted evidence to the effect that the practice of withdrawal would not have been recommended to the appellant as a safe sex practice and found that the appellant, who had said that such a recommendation had been made to him, was not a credible witness.

6 In sentencing the appellant to the term of 4 years and 8 months' imprisonment to which I have earlier referred, the sentencing Judge took into account the appellant's generally favourable antecedents. The appellant, who was then 37 years old, had no prior convictions of any significance. He had a partner and children. A psychological report which had been prepared in respect of him concluded that his conduct had not been vindictive or vengeful but had been consistent with him being emotionally fragile and dependent at the time. However, the sentencing Judge concluded that the appellant's conduct had represented a gross betrayal of trust and that the criminal negligence of which he had been convicted lay towards the highest end of the scale.

7 There are three grounds of appeal. The first is that the sentence imposed was manifestly excessive having regard to the fact that the appellant's conduct was negligent rather than deliberate, to the range of sentences imposed in other cases and to the fact that, at the time of sentencing, the complainant had not suffered any significant ill health. The second is that, by reason of the matters referred to in the first ground, the offence could not be described as being at the upper end of the range of seriousness. The third is that the appellant has suffered hardship in the course of serving his sentence, over and above that suffered by other prisoners, in that the possibility of deportation has rendered him ineligible for a minimum security rating, home leave and work release.

8 As to grounds 1 and 2, the applicable legal principles are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324 - 325.

9 In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

10 There are four points that might be made in this context. The first is that the maximum penalty provided for by the legislature in respect of this offence is one of 10 years' imprisonment (which, by virtue of the operation of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions"), would have to be reduced to one of 6 years and 8 months' imprisonment). The second is that it is important to bear in mind that this maximum penalty is provided for in the case of an offence (under s 297 of the Criminal Code (WA) ("Code")) of which intention is not an element. This might be contrasted with the maximum sentence of 20 years' imprisonment (13 years and 4 months' imprisonment after the operation of the transitional provisions) which might be imposed for a breach of s 294(1) of the Code, which deals with the intentional infliction of grievous bodily harm. The third is that, while it might be right to say that, at the time of sentencing, the complainant had not suffered any significant symptoms, it could certainly not be said that she had not suffered a very serious injury. The fourth is that the nature of the injury suffered by the complainant is relatively unique and consequently difficult to compare with other, more conventional, forms of injury.

11 So far as these last two points are concerned, the evidence at the trial established that, once a person has contracted HIV, it is not possible to eradicate the infection from the body. Professor Martyn French, who gave this evidence (he is a senior specialist in clinical immunology and head of the Communicable Diseases Service at the Royal Perth Hospital), said that probably 95 per cent of persons who contract the virus will develop acquired immunodeficiency syndrome ("AIDS") over a period of 15 to 20 years if the infection is untreated (I have said that it was only by chance that the complainant discovered that she had been infected). He said, in this respect, that, when a person is infected by HIV, the virus "is constantly infecting and damaging cells of the immune system" and the immune system becomes progressively more damaged over a number of years. He said that it can take between three and 20 years for damage to occur and that, when the damage is of a particular degree of severity, the immune system cannot fight off other infections and, at that stage, the illness is described as AIDS. He also said that the great majority of patients are able to have their infection controlled for long periods of time by means of the administration of drugs. The complainant is consequently left in the situation in which she is forced to live with the ongoing uncertainty provided by her disease and with the probability that, in time, it will eventually progress to the stage of "full-blown" AIDS which, in turn, is likely to result in death.

12 Not surprisingly, this weighed heavily on the sentencing Judge. He said, in this respect:

"I've read what ... [the complainant] has written to me recently as to the impact this has had on her life, the effect of the infection, that it has had and will continue to have on her life is really incalculable. The life she should have expected to look forward to has been blighted ... She must endure continuing medical supervision and tests. Any ordinary ailment such as a cold has become a serious issue for her. The way other people relate to her has been affected.

She worries about her future, whether she will be able to work, whether she will be able to afford any treatment which may become necessary and nobody can possibly underestimate the effect this has had on her life."

13 The cases concerning the offence of causing grievous bodily harm were considered by the Court of Criminal Appeal in Dadswell v The Queen [2003] WASCA 212, relied upon by counsel for the appellant. However, in that case, McKechnie J (with whom the other Judges were in agreement) said (at [47]) that the cases did not suggest a particular pattern of sentences and, instead, confirmed the view which had previously been expressed by the Court of Criminal Appeal (in Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992 and in Etrelezis v The Queen [2001] WASCA 327) that there is no "tariff" for this offence. He said that all that could be discerned from the cases was that there was a trend to higher sentences where the grievous bodily harm resulted in long-term and significant injury and that the sentence of 7 years' imprisonment imposed in that case (involving a brutal attack on a defenceless woman who was not previously known to her assailant) was longer than had previously been imposed for an offence of doing grievous bodily harm.

14 We were referred by counsel to two cases from other jurisdictions involving the commission of offences similar to that committed in this case.

15 In the first of them, R v Konzani [2001] UKHL 10; [2005] 2 Cr App R 14 the appellant repeatedly had unprotected sexual intercourse with three women without informing them that he had been diagnosed as HIV positive. All three women contracted the virus. The appellant had been specifically informed, on a number of occasions, of the risks of passing the infection on to any sexual partners. He was convicted of three counts of inflicting grievous bodily harm and sentenced to a total term of 10 years' imprisonment consisting of consecutive terms of 4 years, 3 years and 3 years' imprisonment respectively. His appeal against the sentences imposed was dismissed. The English Court of Appeal concluded (at [49]) that the sentences in each of the individual cases, and the total sentence imposed, were neither manifestly excessive nor wrong in principle.

16 In the second case, R v Mwai [1995] 3 NZLR 149, the appellant, who had contracted HIV, had unprotected sexual intercourse with several women. Two of these, A and B, became infected with the virus. The appellant had known about his own condition before having sexual intercourse with B, but it was possible that he had not known about his condition at the time of his intercourse with A. He was convicted of one count of causing grievous bodily harm to B and of five counts of criminal nuisance in relation to A, B and three other women. A total sentence of 7 years' imprisonment was imposed upon him. This was made up by a 5-year sentence imposed in relation to the count of causing grievous bodily harm and 6 months' imprisonment imposed in relation to each of the criminal nuisance counts. All of the terms imposed were cumulative, save for the criminal nuisance count in relation to B which was ordered to be served concurrently with the term imposed in relation to the count of causing B grievous bodily harm. The charge in relation to the count of causing grievous bodily harm had been brought under s 188(2) of the Crimes Act 1961 (NZ), which provided for up to 7 years' imprisonment for a person who with "reckless disregard for the safety of others" causes "grievous bodily harm to any person".

17 On appeal, counsel for the appellant submitted, in Mwai, that the total sentence was manifestly excessive and that the four cumulative sentences of 6 months' imprisonment should have been ordered to be served concurrently with the 5-year term. He also emphasised that the appellant would not be eligible for parole. In the course of dismissing the appeal, Hardie Boys J (who delivered the judgment of the New Zealand Court of Appeal) said, at 158:

"The five-year sentence imposed in respect of B does not reflect the equal tragedy Mwai has inflicted on A, or the anxiety and distress he has caused the other three women. Seven years overall for all this misery cannot be said to be excessive. The manner in which the Judge arrived at it is really beside the point. None of the sentences in itself is excessive, and to make them cumulative was a proper recognition of their cumulative nature and effect, which did not at the same time lead to a sentence that was overall too high.

The Court is conscious of the difficulties this man will face in prison and of his own bleak future. None the less the Judge was right to send a clear signal of personal responsibility. This is an increasingly significant area of public health."

18 There is a third case, R v Dica [2004] EWCA Crim 1103; [2004] QB 1257. In that case the appellant was convicted of two counts of inflicting grievous bodily harm on two women. He had, knowing that he was HIV positive, infected them with HIV by having unprotected sexual intercourse with them. He was sentenced to consecutive sentences of 31/2 and 41/2 years' imprisonment. The issue of sentence was not addressed on the appeal, because an appeal against conviction was successful and a retrial was ordered.

19 When regard is had to these cases, and to the seriousness of the appellant's offending in this case, it cannot be said, in my opinion, that the sentence of imprisonment was so excessive as not to be open to the sentencing Judge. Rather, it seems to me to have been entirely appropriate. It also seems to me that the offence was rightly described as being at the upper end of the range of seriousness. I have said that the appellant placed the complainant at risk, without disclosing the fact of his infection, at a time when she was still very young, vulnerable and trusting. Moreover, he showed no real remorse for his conduct, having attempted to deceive the complainant, and others, when he was confronted with his wrongdoing. On the finding of the sentencing Judge (which was not challenged), he also attempted to deceive the jury as regards his belief at the time. In these circumstances, and given the very serious consequences for the complainant of the harm inflicted upon her, a sentence of what is, in effect, 70 per cent of the maximum provided for by the legislature, was, as I have said, appropriate, even given the favourable antecedents of the appellant.

20 Grounds 1 and 2 have consequently not been made out.

21 As to ground 3, the appellant was born in the United Kingdom and has never taken out Australian citizenship, notwithstanding that he has lived in Australia for all but 12 months of his life. He has consequently been advised that he is liable for deportation at the conclusion of his sentence of imprisonment. This consequence, which was only appreciated after the appellant had been sentenced, has had the result that he may be ineligible for a minimum security rating, home leave and work release. Counsel for the appellant submits that this is a "relevant matter" that "has occurred between when the offender was convicted and when the appeal was heard" to which the Court of Appeal may have regard pursuant to s 31(2) of the Criminal Appeals Act 2004 (WA).

22 The evidence relied upon in support of this submission consists of two "Individual Management Plans" prepared by the prison authorities. The first of these, signed on 5 August 2005, indicates that the appellant was being held in medium security at Casuarina Prison and that it was recommended that he remain there pending his appeal, but that it was planned to downgrade his security rating to minimum on 19 January 2006, at which time he would be transferred to Karnet Prison Farm. The plan also indicates that he would be eligible to apply for home leave on 18 November 2005 and to commence such leave on 18 February 2006, and that he would be eligible to apply for work/re-entry release on 18 May 2006 and could commence this leave from 18 August 2006. The plan consisted of no more than a recommendation and it indicates that it would be reviewed on 19 January 2006. The second plan, finalised on 9 March 2006, contains the same eligibility dates but indicates that the appellant should remain at medium security rating and stay at Casuarina Prison "in line with Override comments re: Deportation possibility". It also indicates that he should remain at Casuarina Prison in view of his appeal status.

23 Counsel for the appellant accepts that the possibility of deportation cannot be taken into account as a reason for a reduction of sentence (as to which see Dauphin v The Queen [2002] WASCA 104 at [21] - [22]) but submits that the Court can take it into account as a mitigating factor, in so far as it will have the consequence that the appellant will be subjected to stricter and more adverse conditions during his sentence. He relies, in this respect, on what was said by Ipp J in Bekink [1999] WASCA 160; (1999) 107 A Crim R 415 at 418 - 419 as follows:

"The principle that can be derived from the ... [cases] is that, in sentencing, the court is required to take into account the reductive effect of hardships, not ordinarily experienced by ordinary prisoners, that an offender through circumstances subjective to him, may endure by being in prison. If those hardships are not known at the time of sentencing, evidence may be given of them in the course of an appeal against the sentence imposed and the appellate court is required to have regard thereto in determining whether the sentence imposed was according to law."

24 The cases in this respect have not been entirely uniform. While there appears to be general acceptance of the principle that, in cases where hardship and deprivation would be particularly aggravated by matters subjective to a prisoner, this is a proper consideration to be taken into account by a sentencing Judge (see R v Vachalec [1981] 1 NSWLR 351 at 353 per Street CJ), the application of that principle has been variable. I will give some examples of the approach that has been taken by various courts in different circumstances.

25 Reductions in sentences may be allowed in cases in which an offender from a traditional Aboriginal culture will endure an extra hardship in gaol as a result of being in a foreign environment (see Juli (1990) 50 A Crim R 31 at 37 and cf Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996 and R v Gordon [2000] WASCA 401 at [32]). A reduction has also been allowed in the case of a disabled offender who will suffer a heavier burden of incarceration than an average offender because the prison facilities are not designed to cater for the disability: R v Todd [1976] Qd R 21.

26 Courts have sometimes been prepared to make allowance for the fact that an offender will be subjected to prison conditions that are more arduous than usual, for example, where the prisoner will be imprisoned in lockdown conditions (as to which see Director of Public Prosecutions v Faure [2005] VSCA 91; (2005) 12 VR 115), solitary confinement or protective custody (as to which see Davies (1978) 68 Cr App Rep 319 and R v Boon, unreported; CCA SCt of NSW; 17 November 1983). Ordinarily, a factor of that kind has been more influential on the sentence imposed where the harsher prison conditions are not a consequence of the nature of the offence committed by the offender. So, for example, a prisoner who is in protective custody as a result of assisting police in relation to other offenders will ordinarily receive a more substantial discount, arising out of the fact that he or she is consequently required to serve a term of imprisonment in more arduous conditions (see, for example, R v Rostom [1996] VicRp 60; [1996] 2 VR 97 and Davies, above), than will an offender who is in protective custody merely because of threats by persons connected with the victim of his or her offence (see R v Gooley (1996) 66 SASR 380 at 382 - 383 per Doyle CJ).

27 In R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231, the South Australian Court of Criminal Appeal was required to sentence an offender afresh. He had been convicted of sexual offences committed on children. He had also been a Magistrate with a reputation for being tough on sentencing. He was consequently held in solitary confinement, for both reasons, for his own protection. The three Judges adopted different approaches as regards the question of what, if any, allowance should be made for this.

28 Mullighan J suggested (at 261 - 263) that the reasons for the harsher custodial conditions are relevant in deciding whether or not a reduction in sentence is warranted. He said (at 261):

"In ... [cases referred to earlier in the judgment] the allowance for the harsh conditions to be endured by the offender has arisen because of circumstances unrelated to the nature of the offending, the status of the offender in the community or his or her particular occupation. In my view, a sentence should not be reduced because the crime was committed by a member of the judiciary. Usually that would be a matter of aggravation and should not operate in any way as a matter of mitigation. Furthermore, a sentence should not be reduced because the crime is so odious that life in prison must be in a protected environment."

29 Williams J considered (at 269 - 270) that a paedophile was not entitled to any reduction in sentence by reason of the attitude of other prisoners to this type of crime. He went on to say (at [146]):

"However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender's previous occupation may properly attract some discount to lessen the impact of underserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy's solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring does warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy's crimes."

"A defendant who becomes an informer to assist the administration of justice may legitimately seek a reduction in sentence to recognise the harsh treatment and risks that will be likely to arise in prison and possibly on release. A need for a reduction may arise because of a disability or some other idiosyncratic feature of a defendant. A defendant who is blind or paralysed may also legitimately have that matter taken into account. Each case will turn on its own facts.

The appellant in this case needs protection. This need has arisen from the nature of his crimes and from his former employment. The appellant's need arises from matters of a different character to those earlier described. Their mitigatory effect is much less."

Gray J had earlier mentioned a difficulty which, in his opinion, arose out of consideration of prison conditions as a matter relevant to sentencing. He said (at 288):

"Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate."

31 In R v Kasulaitis [1998] 4 VR 224, the offender had stabbed his son in an act of irrationally directed love during a breakdown in appropriate mental functioning. He was required to serve his time in prison in some form of protective custody. This was regarded as a matter of some significance for sentencing purposes (see, in particular, the judgment of Batt JA at 232).

32 In Eliasen (1991) 53 A Crim R 391, the sentencing Judge was told that the offender suspected that he may have become infected with HIV but that he did not yet have the results of the tests. Subsequent to sentencing it turned out that he was HIV positive and, as a consequence, was restricted to a special division which did not have the amenities and occupational prospects offered by the rest of the prison. Crockett J, who delivered the judgment of the Victorian Court of Criminal Appeal, held (at 393) that the sentencing Judge had not erred in the sentence imposed by him. However, he went on (at 394) to consider whether the Court should admit new evidence from the offender as to the disadvantages that would be suffered by him during his term of imprisonment for the purpose of considering whether or not there should be "some amelioration of the sentence that otherwise might be considered ... proper ... ". He said (at 394):

"This Court accedes very sparingly to applications of this kind. 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 a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.

However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention."

The Court admitted the evidence that had been tendered and granted the appellant some relief in respect of his sentence.

33 In Everett (1994) 73 A Crim R 550, the Western Australian Court of Criminal Appeal considered a case in which the offender had been kept in a special handling unit in prison because he was regarded as a security risk on the basis that he might use his army training to escape. While the appeal (a Crown appeal) related to the application of the totality principle, Pidgeon J (with whom Kennedy J and Ipp J were in agreement) said (at 562):

"The sentencing judge did not discount the sentence by reason of the more restricted form of imprisonment to which it is anticipated the respondent will be subject. I consider, on the facts of this case, his Honour was correct as it would appear to me to be likely that the nature of some of the respondent's offences would have contributed to the decision as to the special restrictions on imprisonment. Furthermore, it is not known for how long the prison authorities will so treat the respondent. This is a matter for the authorities in the performance of their normal responsibilities."

Ipp J, while agreeing with Pidgeon J, expressed some additional comments. He said (at 564) that the circumstances of the respondent's imprisonment were relevant to the determination of the appropriate sentence to be imposed upon him, in circumstances in which he had not been placed in the special handling unit because of his conduct while in prison. After discussing the relevant cases, he concluded (at 566):

"Counsel for the respondent informed us that the respondent had been told by prison authorities that he was going to be kept in the special handling unit for at least "most" of his sentence. This was not disputed by senior counsel for the respondent and should therefore be accepted. In my view, the nature of the imprisonment which the respondent will have to endure constitutes unusual hardship. This conclusion implies no criticism of the prison authorities for the regime they have imposed on the respondent. There is nothing to suggest that it is not justified, but in my view, it is relevant to the term of imprisonment to be imposed."

34 I have earlier referred to the judgment of Ipp J in Bekink. In that case, the prison in which Bekink had been incarcerated had imposed "lockdown" conditions on half of its prisoners as a result of a riot. This was not done in order to punish them, but to effect structural changes to the prison. The conditions were far more onerous than usual. The prisoners were confined to their cells for more than 21 hours a day and did not have access to natural light or fresh air. Their only recreational or physical activity was walking up and down the corridor with each other. Bekink had, by the time of the appeal, spent three months under the stricter regime, notwithstanding that he had had no involvement in the riot. I have mentioned that Ipp J accepted that the prison conditions applicable to Bekink were relevant in considering the sentence which should have been imposed upon him. However, he did not consider that appellate intervention was justified.

35 Heenan J appears to have adopted a similar approach in that case. He acknowledged (at 422 - 423) that a sentencing court may impose a shorter term than usual once it becomes aware that imprisonment will impose hardship upon a particular individual which is much greater than upon the average person as, for example, in a case in which "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". While he considered that, if the sentencing Judge had been aware that the applicant would be subject to the lockdown regime, he might have imposed a lesser sentence than he did, he did not consider it to be appropriate for the Court to intervene.

36 The third Judge, Anderson J, took a different approach. He said (at 420):

" ... I am not aware of any principle of sentencing that makes the sentence conditional on the prison regime being of a particular quality or which requires the sentencing court to appraise or evaluate the actual conditions in the various prisons to which the prisoner is likely to be sent, before handing down sentence. Therefore, I think it is impossible to take the next step called for by the argument. That is, that if it should turn out that the conditions are harsher than those that were assumed at the time of sentence, the sentence should be shortened on appeal.

In my opinion, there is no basis in law for this approach.

This is not to say that courts leave out of account the particular way in which imprisonment may affect a particular prisoner. It is one thing, however, to say that judges must have regard for matters personal to a convicted person in determining the appropriate punishment for him or her. It is quite another thing to say that the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm."

37 In O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999, McKechnie J was prepared to take into account the fact that the appellant had been incarcerated in maximum security while on remand in deciding to suspend the sentence of imprisonment imposed by him. He said, in this respect (at 10 - 11):

"There is one further factor which points to suspending the sentence.

The material before the Magistrate indicated that during his period on remand, the appellant was incarcerated in maximum security. While ordinarily the matter of the type of incarceration is left to the Ministry of Justice, it does not seem right, if it is the case, that a person who has never before been imprisoned and who is on remand only, should be so confined. In the mix of factors relevant to sentence, especially having regard to the appellant's particular antecedents ... I have concluded that this factor also should be weighed in determining the correct disposition for this case."

38 In de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, the applicant had been subject to the conditions of a special handling unit at Casuarina Prison. The Court held that there was insufficient material before it to suggest that he had been unduly prejudiced by that circumstance in serving his sentence. However, Roberts-Smith JA went on to consider the wider principles. While he accepted that, where imprisonment would be a harsher or more severe punishment for a particular offender than for other prisoners, this may necessitate a reduction in the length of the term imposed, he noted (at [129]) the difficulty involved with taking into account the likelihood that part or all of a sentence may be served under a particular direction or regime as that "involves the court in making a prediction about how the offender will be dealt with in the prison system in future", when that prediction may not be fulfilled. As to the admission of new evidence concerning prison conditions, he said (at [138]):

" ... this Court does not supervise sentences once they have been imposed and the fact that an offender may have to serve a sentence under more onerous conditions than were apparent at the time of sentencing, will not necessarily require this Court to interfere with a sentence that was otherwise unimpeachable."

He went on to say (at [135] - [136]) in relation to Bekink:

"[Ipp J] ... referred to a comment by Kirby P ... in R v Astill (No 2) (1992) 64 A Crim R 289 at 293 - 294 to the effect that ordinary sentencing principles would require consideration to be given to the disparity between 'arduous sentencing conditions' and 'ordinary sentencing conditions'. However, Kirby P was in dissent in that case and as Anderson J pointed out in Bekink (at [24]), it is one thing to say that judges must have regard to matters personal to an offender in determining the appropriate punishment for him or her but quite another to say that the length of prison terms generally should be linked to some norm and adjusted according to whether the offender's incarceration differs from the norm.

I respectfully agree with that and I do not take Anderson J there to be expressing any different view to the principle Ipp J derived from his consideration of the authorities, namely that in sentencing the court is required to take into account the reductive effects of hardships, not ordinarily experienced by ordinary prisoners, that an offender through circumstances subjective to him, may endure by being in prison. Further, as his Honour said, if those hardships are not known at the time of sentencing, evidence may be given of them in the course of an appeal against the sentence imposed and the appellate court is required to have regard thereto in determining whether the sentence imposed was according to law."

39 That brings me back to this case. I have earlier referred to the different approach adopted in the two Individual Management Plans relating to the appellant arising out of the possibility that he will be deported. As I understand the position, because the appellant has been a permanent resident of Australia for more than 10 years, he is not liable for deportation under s 200 of the Migration Act 1958 (Cth) (see s 201 of the Act) but, under s 501 of the Act, the Minister has a discretion to cancel the visa of any permanent resident who has been sentenced to imprisonment for a term of more than 12 months on the basis of character grounds. At this stage, there is no information as regards the question whether the appellant's permanent residency visa will be cancelled.

40 The assessment of security ratings for prisoners is dealt with in Rules ("DG Rules") made by the Director General pursuant to s 35 of the Prisons Act 1981 (WA). Paragraph 8.3.2 of DG Rule 18 deals with the case of prisoner appeals. It reads as follows:

"8.3.2. Prisoner Appeals. Prisoners who are appealing against their conviction and/or severity of sentence will be assessed in accordance with normal classification procedures. However, the assessment will also take into account the prisoner's attitude towards their current situation and their potential attitude in the event that the appeal is unsuccessful when considering placement at a minimum facility."

Paragraph 8.3.4 of DG Rule 18 deals with the issue of deportation. It reads as follows:

"8.3.4. Deportation/Removal. Deportation/Removal is confirmed when a copy of the Deportation/Removal Hold Order has been received from the Department administrating the Migration Act.

Prisoners, who are subject to consideration for deportation/removal, or those whose deportation/removal is confirmed, will be assessed in accordance with normal classification procedures.

8.3.4.1. The assessment will also take into account the prisoner's attitude to deportation, i.e. acceptance of or opposition to, and whether or not the prisoner has lodged, or intends to lodge, an appeal against the Order.

8.3.4.2 A prisoner who has achieved minimum security, for whom possible deportation/removal is subsequently advised or either is confirmed, shall be reviewed immediately, in line with 8.3.4.3.

8.3.4.3. Prisoners who have confirmed deportation orders or for whom deportation is a distinct possibility, who achieve minimum security via a MAP [Management and Placement Checklist] or at a scheduled review of their IMP [Individual Management Plan] must have this approved through the AIPR system by the Assistant Director Sentence Management."

41 It is plain enough, from the second Individual Management Plan, that the appellant's appeal status, and the prospect of his deportation, have been the reasons for his security rating remaining at a medium level and that it is unlikely, albeit possible, that his rating will be decreased at his next review, due to take place on 19 July 2006.

42 I have mentioned that, under the first of his two Individual Management Plans, the appellant was said to be eligible to commence home leave on 18 February 2006. Leave of that kind is provided for by s 87(3) of the Prisons Act, which provides that leave of absence may be granted to a prisoner during the period of 12 months before the date when he is entitled to be discharged from prison, or during the period of 12 months prior to the date when he is eligible to be considered for release on parole, for the purpose of visiting a friend or relation. The period of leave is to be less than 12 hours per month during the period before the period of six months prior to the date when the prisoner is entitled to be discharged from prison or is eligible to be considered for release on parole, but increases thereafter (s 87(4) of the Prisons Act).

43 The first of the Individual Management Plans relating to the appellant recorded that his eligibility to commence home leave on the date specified was "in accordance with Policy Directive 23.16". However, that Directive was withdrawn on 8 September 2005 and has since been replaced with DG Rule 16. Paragraph 4.4 of that Rule provides that a prisoner who faces potential deportation, but with respect to whom there is no definite statement of intent for deportation from the Department of Immigration, is eligible for home leave. However, under par 4.2, a prisoner must have achieved a minimum security rating in order to be eligible for home leave. Moreover, par 5.8 provides that prisoners will not be permitted to undertake home leave from Casuarina Prison save in exceptional circumstances. Paragraph 9 provides that home leave is a privilege and that a sound case for granting it must be presented. One of the factors to be taken into account is the risk to the security of the public (par 9.4.1) and, in that respect, regard must be had, amongst other things, to the "possibility of and attitude towards deportation" (par 9.5.8).

44 I have also mentioned that the appellant's initial plan showed that he was eligible to apply for work/re-entry release on 18 May 2006 and that any such release could commence from 18 August 2006. Re-entry release orders ("RROs") are provided for by Pt 4 of the Sentence Administration Act 2003 (WA). Under s 54 of that Act, an RRO is an order that, on a release date specified in the order, a prisoner is to be released if the conditions provided for by that section are satisfied. Policy Directive 47, issued by the Head of the Department of Corrective Services, provides, by par 4.8, that:

"A State offender who is a non-citizen or who is subject to a deportation order is eligible to apply for Re-entry release but the prisoner should be made aware that it has been the general policy of the Board not to approve such applications. This is because the prisoner could not comply with the standard conditions of Re-entry release as required by the Sentence Administration Act ... "

One of the standard conditions provided for by s 55 of the Sentence Administration Act is that the prisoner must not leave the State.

45 It seems, from all of this, to be probable that the prospect of the appellant's deportation, not known by the sentencing Judge, has resulted in the loss, or at least a diminution in, the prospect that the appellant would otherwise have achieved a minimum security rating and be accorded home leave privileges. It seems also to be probable (unless it can be determined that the Minister will not exercise his discretion to cancel the appellant's visa) that the prospect of deportation will result in the appellant's ineligibility for a re-entry release order that might, otherwise, have been made. However, even if it be assumed (without deciding) that these consequences give rise to a hardship of the kind that should be taken into account in considering whether the sentence of imprisonment imposed upon the appellant is appropriate (and it needs to be borne in mind, in this respect, that home leave and re-entry release orders are privileges, and not rights, that are granted or refused in accordance with the rules and policies of the Department of Corrective Services), I would not alter the sentence imposed upon the appellant.

46 This Court will not intervene, in a sentencing appeal, unless it considers that a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act. Even making the assumption to which I have referred, having regard to the seriousness of the appellant's offence, as I have earlier outlined it, and his lack of remorse, I do not consider that any different sentence should have been imposed. Rather, it seems to me that the sentence of 4 years and 8 months' imprisonment imposed by the sentencing Judge remains appropriate.

47 While I would be prepared to grant the appellant leave to appeal in respect of ground 3 only, I would dismiss the appeal.

48 ROBERTS-SMITH JA: Subject to the following comments in relation to ground 3, I agree with Steytler P.

49 As Steytler P points out, the principle that particular hardship and deprivation for an individual prisoner by reason of matters subjective to that prisoner is a matter which may properly be taken into account by a sentencing Judge. His Honour has discussed the relevant authorities and it is not necessary for me to do so. However, even in those cases in which the principle may apply, and despite the lack of uniformity to which his Honour refers in the application of it, the authorities are concerned with some feature, unique to the prisoner, which renders imprisonment significantly more severe, or a significantly greater hardship than it would be for other prisoners.

50 In his reasons, Steytler P assumes (but expressly without deciding) that the consequences of the appellant's potential deportation give rise to a hardship of the kind that should be taken into account in considering whether the sentence of imprisonment imposed upon him is appropriate. In the present case I would not be prepared to make that assumption.

51 The consequences upon which the appellant relies are that he will probably lose (or at least suffer a diminution of) the prospect of being given a minimum security rating and home leave privileges and ineligibility for a re-entry release order. It cannot be confidently said that these consequences are probable. They all involve assessments and decisions yet to be made by the Executive. More importantly, though, they do not seem to me to be hardships of the kind with which the principle is concerned. They are measures which the relevant authorities may take which would have the effect of ameliorating (if not removing to some extent) the imprisonment the offender would otherwise ordinarily have to serve. I appreciate that in one sense the denial of an amelioration of imprisonment may be said to be a hardship, but I do not consider that to fall within the scope of this principle.

52 MURRAY AJA: I agree with Steytler P that, for the reasons given by his Honour, the appeal should be dismissed.

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• Ground 3

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