REGINA v WAYNE RONALD BURRELL

IN THE COURT OF CRIMINAL APPEAL CCA 60006/00

MASON P SPERLING J SMART AJ

REGINA v WAYNE RONALD BURRELL The respondent pleaded guilty to two counts on an indictment, namely for supply of a prohibited drug, methylamphetamine, not less than the commercial quantity; and for supply of a prohibited drug, cannabis leaf.

The sentencing judge recognised that the offences on their face called for a significant full time custodial sentence. Nevertheless, his Honour deferred passing sentence on the condition that the respondent enter a recognisance for himself in the sum of $5,000 to be of good behaviour for three years. His Honour also fined the respondent $3,000 on each count of the indictment.

Two matters were relied upon by the respondent at sentencing as providing exceptional bases for imposing an exceptionally lenient sentence. The first was the medical condition of the respondent; the second was the need of the respondent's adult son having regard to the son's own medical condition. The sentencing judge held that the case was exceptional for the hardship which would be imposed on the respondent were he to be incarcerated full-time given his extraordinarily vulnerable medical condition.

The respondent was aged 50 at the time of sentencing and had been a T12 paraplegic for over 20 years. He weighed 21 stone and needed help with dressing and undressing, showers and other daily tasks. He needed regular medical supervision of hypertension, bladder problems, obesity, bowel dysfunction and urinary tract infections. He required 24 hour care and had to self-catheterise. The sentencing judge was satisfied that even with the best endeavours of the staff at Corrections Service Hospital, there was a significant risk that in full-time custody the respondent would suffer complications of his paraplegia due to the added risk of infection.

HELD: (by Mason P, Sperling J and Smart AJ agreeing) dismissing the appeal:

The Court of Appeal should not interfere with the sentence.

Given a custodial sentence, the respondent would need permanent housing in the medical ward of the Long Bay Hospital. This would place a considerable impost on the Corrections Health Service, and there would be a significant increase in the risks associated with the respondent's medical condition. This was not a reflection on the dedication or competence of the medical staff but rather a frank acknowledgment that resources are very stretched at the present day. The health of an offender is a factor which properly bears upon the length and type of sanction. The peculiar combination of the respondent's medical factors increased the risk of dangerous infection if his toiletry and other needs were not attended to promptly.

The respondent's son was a powerfully built 6 ft 5 in height and was unemployed, providing much of the daily care his father needed. This was a symbiotic and exceptional relationship, for the son had suffered a severe closed head injury and had persistent impairments in higher order cognitive processes such as impulse control, planning and attentional control. The son lived with the father, who took responsibility for supervising him and providing him with meaningful activities. The son recognised his need and his high level of dependence on his father's protective supervision. The son would be at significant risk of self-sabotaging behaviour, and of exploitation by others, if his father was in custody and unable to supervise his activities.

Together, these exceptional circumstances meant that the sentencing discretion did not miscarry.

T (1990) 47 A Crim R 29 (referred); Howard v Jarvis (1958) 98 CLR 177 (referred); Smith (1987) 27 A Crim R 315 (followed); McDonald (1988) 38 A Crim R 470 (referred); Bailey v Director of Public Prosecutions (1988) 78 ALR 116 (referred).

IN THE COURT OF CRIMINAL APPEAL CCA 60006/00

MASON P SPERLING J SMART AJ

JUDGMENT 1 MASON P: The respondent pleaded guilty to two counts on an indictment, namely for supply of a prohibited drug, methylamphetamine, not less than the commercial quantity; and for supply of a prohibited drug, cannabis leaf. 2 The maximum penalty for the first offence was 3,500 penalty points or imprisonment for 20 years or both (Drug Misuse and Trafficking Act 1985, s25(2)); the maximum penalty for the second offence was 3,000 penalty points or ten years imprisonment or both (ibid s25(1)). 3 Telephone intercepts and physical surveillance had provided evidence that the respondent was one of many people involved in a drug distribution network organised by Leslie Kalache. Telephone calls were intercepted between the respondent and Kalache which related to the purchase of prohibited drugs. The respondent was also observed driving a vehicle which, when searched by the police, contained separate plastic bags of 440.3gms of amphetamine, 400.1gms of amphetamine, 1018gms of compressed cannabis and 1,002gms of compressed cannabis. 4 The sentencing judge (Woods DCJ) recognised that the offences on their face called for a significant full time custodial sentence, despite an early plea indicative of contrition and the practical benefit to the community of a trial avoided. 5 Nevertheless, his Honour deferred passing sentence on the condition that the respondent enter a recognizance for himself in the sum of $5,000 to be of good behaviour for three years. His Honour also fined the respondent $3,000 on each count of the indictment. 6 Two matters were relied upon by the respondent at sentencing as providing exceptional bases for imposing an exceptionally lenient sentence. The first was the medical condition of the accused; the second was the need of the accused's adult son having regard to the son's own medical condition. His Honour made findings referable to each matter, although he based his decision solely on the former. Applying the test of hardship expressed by Allen J in T (1990) 47 A Crim R 29 at 40 (hardship so extreme that "a sense of mercy or affronted commonsense imperatively demands that [the sentencing court] should draw back"), Woods DCJ held that the case was so exceptional as to provide a basis for departing from the general requirement of a custodial sentence for the present offences. What made it exceptional was the hardship which would be imposed on the respondent were he to be incarcerated full-time given his extraordinarily vulnerable medical condition. 7 The respondent was aged 50 at the time of sentencing. He has been a T12 paraplegic for over 20 years as the result of a semi-trailer accident when a bridge collapsed. He weighs 21 stone. In his Honour's words, the paraplegia "on any view involves enormous complications in his day to day living arrangements". 8 The central finding was that the respondent's paraplegia affects his life expectancy because of a heightened vulnerability to infections. In these circumstances, Woods DCJ was: satisfied that despite the best endeavours of the hospital staff at Corrections Service Hospital there is a significant risk that Mr Burrell's care, if in full-time custody, would be inadequate and would cause him to be in distinct danger of being subject to some complication of his paraplegia which he would not be subject to if at home.

9 This finding was based on medical evidence as to the respondent's actual medical condition, evidence from doctors and the respondent's son as to his current treatment regime, and evidence as to the capacity of the Corrections Service Hospital to attend adequately to those needs. 10 I now turn to those three areas.

(i) The respondent's medical condition 11 There was undisputed evidence from Dr P D Crowley that the respondent: …suffers from a recurrent depression, hypertension, chronic pressure sores on both his feet, recurrent urinary tract infections, renal cysts and obesity. He has a three year history of joint and muscle pains since contracting Ross River virus. He has been under the care of a medical physician Dr Leon Jellet for investigation of possible heart disease. His paraplegia requires him to self-catheterise eight times per day. He suffers from involuntary spasms of his legs which need restraint by binding to his chair during attacks. Mr Burrell's medical problems require him to have twenty-four hour care presently provided by his son and family. His family prepares all his meals. He needs help with dressing, undressing, showering and his family assist him with twice daily dressings to his feet pressure sores. Mr Burrell attends the doctor for regular prescriptions for Ditropan to assist bladder control and Noroxin for his recurrent urinary tract infections. Mr Burrell requires; 1) A light in his room to help with self-catheterisation. 2) A lifting frame over his bed. 3) A lifting frame over his toilet and shower. 4) Help with dressing and undressing. 5) Help with showers. 6) Twice daily dressings to his pressure sores. 7) A waterbed to prevent pressure sores to his body. 8) Regular medical supervision of hypertension, bladder problems and general health problems.

12 Other medical evidence attested to gross wasting and multiple bruises over the lateral aspects of both feet. The respondent's circulation in his lower limbs was poor. Over the years the respondent has undergone many surgical procedures, including three spinal operations and he is under medical supervision for a heart condition. 13 Dr Vago gave the following diagnosis: Level T12 paraplegia, recurrent urinary tract infections, chronic pressure sores, bowel dysfunction, Ross River viral disease, hypertension, obesity, mastitis, right renal cysts and depressive illness.

14 The respondent is particularly vulnerable to infection in consequence of two factors stemming from his paraplegia. First, the paraplegia requires him to self-catheterise eight times per day. This involves the insertion of a device into the urinary tract in the penis, a procedure that can breach the skin. Secondly, the respondent suffers from sudden involuntary spasms of the legs, one consequence of which is breaching of the skin. The medical witnesses were agreed that hospitals are dangerous places for getting infections and for getting infections which are hard to deal with.

(ii) Care required by respondent 15 Dr Crowley's evidence (set out above, par 11) attests to the respondent's need for 24 hour care, presently provided by his son and family. He needs help with dressing, undressing, showering and putting dressings on his feet pressure sores. Despite this treatment there has been a history of recurrent urinary tract infections, pressure sores and bowel complaints. 16 The respondent's son is a powerfully built man 6 ft 5 in height. He has a particular dependency on his father to which reference will later be made. Of present relevance is his evidence as to the assistance he gives his father. He lives with his father and is not employed apart from the work he does looking after his father. This includes emptying his toilet bowl; helping him put his feet on a machine called a therapeutic magna pulse which relieves the pressure sores; showering him; dressing his feet; massaging his legs; and bracing his legs when he has the spasms. Throughout the day there is the need to assist with basic toilet functions and washing and showering stemming from them. 17 The respondent can drive a vehicle, unaccompanied except on longer journeys. On such longer journeys he requires the type of constant low level nursing care referred to above.

(iii) The capacity of the Corrections Health Service 18 The pre-sentence report from the Probation and Parole Service gave the following presently relevant advice: 2) Due to his high degree of dependence on others and the special facilities that are required to cater for the offender's needs, Mr Burrell is assessed as unsuitable for both a Community Service Order and Periodic Detention Order as it appears that no appropriate agencies/facilities which cater for his needs are available. (3) Should a custodial sentence be considered the court is advised that Long Bay Hospital has appropriate facilities to cope with the offender for the duration of whatever sentence may be imposed. However due to the degree of care he requires such a sentence would be taxing on their service. 19 There was a lively dispute between two of the medical witnesses as to the capacity of the Corrections Health Service to care properly for the respondent's significant, constant and continuing medical needs. Dr Vago said that the medical problems were so severe as to require the respondent to spend his entire incarceration in the medical B ward of the Long Bay Hospital, except when special problems necessitated removing him to a public hospital for a particular procedure. Dr Matthews had not examined the respondent, but had read Dr Vago's report. He said of the respondent that: …if his medical problems are as severe as it would appear, he may need to spend his entire period of incarceration in the hospital. This is a situation we would try to avoid as there are only 30 medical beds for the entire correctional population, the remaining 90 being psychiatric in-patient beds.

20 Dr Vago was a very experienced hospital administrator. He had been Superintendent in the Prince of Wales Hospital Group. He had examined the respondent and was familiar with his condition and its needs. He provided a report stating that the respondent needed 24 hour daily care indefinitely. On the issue of susceptibility to infection he said that the respondent's pressure sores and bruising needed constant supervision. If the respondent needed to go to the toilet he could not be left waiting, as he needed immediate help and attention. It was Dr Vago's view that realistically such comprehensive care as the respondent needed would not be available through the Department of Corrective Services. 21 This written opinion received elaboration and challenge in Dr Vago's oral evidence. He was asked to comment on the then written evidence of Dr Matthews. He (Dr Vago) expressed serious reservations as to the capacity of Corrections Health Service to cope with the respondent's needs, notwithstanding its organisational goal of doing so. The need for constant care in relation to pressure sores, the bowel dysfunction and the need for prompt assistance in toilet functioning were emphasised. 22 Dr Vago had not worked in the correctional system, but he gave evidence which was capable of acceptance and which was accepted to the effect that Corrections Health Service was severely stretched in its resources. In rather graphic and somewhat exaggerated terms he questioned the capacity of the Prison Hospital Service to provide the rapid responses necessary to give proper care to the respondent's condition. 23 The Crown called evidence from Dr Richard Matthews the Director of Clinical Services at the Corrections Health Service. Dr Matthews emphasised that the function of the Service is to provide all necessary health care. Where services are unable to be provided by the Corrections Health Service inmates are transferred out to public hospitals, generally to the Prince of Wales Hospital. 24 Dr Matthews accepted that the respondent's health problems appeared to be such that he may need permanent housing in the medical ward of the Long Bay Hospital. There are 30 beds in that ward which is staffed by nurses in three shifts with two nurses operating the night shift. There have been paraplegics in custody for "periods of time in the past". 25 Dr Matthews defended the capacity of his Service to provide an adequate level of care. He acknowledged that there were indications that the respondent might need lifting frames and a waterbed and said in his report that "these appliances would be provided (at some considerable impost) by our Service if clinically indicated". 26 Later, in his oral evidence, he stated that if the respondent needed to remain in B Ward for his entire incarceration this would place "a considerable impost on our Service". He made no bones about the financial difficulty that would ensue from the incarceration of the respondent, while asserting that everything necessary to be done would be done. Dr Matthews frankly conceded that there were always problems in every health service with service delivery from time to time. 27 In my opinion, this and other evidence provided a basis for the trial judge's conclusion that incarceration of the respondent would mean a significant increase in the risks associated with his medical condition. The Executive's duty of care towards prisoners under its control is clear (Howard v Jarvis (1958) 98 CLR 177), but the realities of prison life are not overlooked in the sentencing discretion. It is important to observe that his Honour did not accept the extreme position advocated rather graphically by Dr Vago. Nor did he cast any reflection upon the stated intentions of Dr Matthews to do everything practically within his power to care for the respondent's medical needs. As indicated above, the critical conclusion was expressed in terms of a significant risk of infection, despite the best endeavours of the hospital staff.

The appellant's challenge 28 The Crown does not dispute the proposition as to the relevance of hardship according to the test stated in T (not itself a medical hardship case). The real issues raised on appeal were the correctness of the conclusion as to significant risk and its relevance. Although the proposition was not put in these terms, the Court was invited to recognise that gaol is necessarily an unpleasant place where living conditions may be worse than encountered on the outside. 29 Having regard to the evidence and the sentencing judge's advantage in seeing the witnesses I can detect no error in his conclusion on the factual matter of increased risk. I would however emphasise that the conclusion turns upon the evidence and is related to the particular concatenation of the respondent's medical problems. It is not a reflection on the dedication or competence of the medical staff but rather a frank acknowledgment that resources are very stretched at the present day. Dr Matthews acknowledged this. It strikes me as self-evident that problems would be likely to be encountered in providing the constant nursing care required for this huge and severely disabled man. Some procedures will require two nurses, yet two is the number on duty during the night shift and there could be as many as 29 other patients with nursing needs. 30 I will return to the relevance of the finding after addressing the second basis upon which special hardship was advanced at trial. 31 The relationship between the respondent and his son has aptly been described as symbiotic. I have already referred to the way in which the son provides for his father's needs. The converse is true. The son, who is aged 24, suffered a severe closed head injury in a motor vehicle accident in 1992. As a result he has persistent impairments in higher order cognitive processes such as impulse control, planning and attentional control. The deficits were described as mild to moderate in severity and as significantly interfering with his adaptive abilities in everyday life. The son gave evidence and the sentencing judge had the opportunity to observe him. 32 The son has a partner and they have recently had a child. 33 The son takes Haloperidol which in his words "knocks the edge off me and takes away anxiety". 34 The son lives with the father, who has taken responsibility for supervising him and providing him with meaningful activities. There have been occasional rebellions, but the son generally recognises his need and his high level of dependence on his father's protective supervision. There was unchallenged evidence from a clinical neuropsychologist that the son would be at significant risk of impulsive and self-sabotaging behaviour, and of exploitation by others, if his father were unable to supervise his activities. 35 In my view the trial judge was entitled to conclude, as he did, that the relationship between father and son was quite extraordinary and exceptional. Hardship to the son would have been relevant to the sentencing discretion had it been necessary to invoke it. 36 The ultimate question is whether appealable error has been shown in the sentence which was imposed and whether, if it has, the so-called double jeopardy principle nevertheless makes it inappropriate that this Court should re-sentence the respondent. 37 There can be no doubting that the criminal activity in which the respondent was a voluntary participant would have attracted a custodial sentence of perhaps four years duration, with an additional term. It is also relevant that the offences to which the respondent pleaded guilty were committed during the currency of a three year suspended gaol sentence imposed by the Brisbane District Court, albeit for participation in prostitution, an offence of a different character (serious nonetheless). 38 With some hesitation, I have concluded that this Court should not interfere with the sentence. There is a unique combination of medical hardship and the hardship that separation from the son would impose on the son as well as the respondent himself. The particular medical needs of this respondent would prove extremely taxing to the Corrections Health Service and would be likely to be unmet to a limited degree having regard to the human resources of the system. 39 The hardship which a deserved sentence of imprisonment is designed to impose does not have increased risk of serious medical complications as one of its elements. The health of an offender is a factor which properly bears upon the length and type of sanction. The relevant principles were stated authoritatively by King CJ in Smith (1987) 27 A Crim R 315 at 317: 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.

40 See also McDonald (1988) 38 A Crim R 470, Bailey v Director of Public Prosecutions (1988) 78 ALR 116, Fox and Freiberg, Sentencing: State and Federal Law in Victoria 2nd ed pp337-341. 41 Applying these principles to the unusual facts of this case and taking account of the so-called double jeopardy principle I would dismiss the appeal. 42 This decision does not mean that an added risk of infection in a prison hospital is itself a basis for respiting a deserved custodial sentence. Nor does it mean that the present respondent has a licence to offend again without extreme likelihood of a custodial sentence: the contrary is the case. 43 SPERLING J: I agree with the order proposed by Mason P and with his reasons. 44 SMART J: I agree with Mason P. **************

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