Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant.'"
19 As a consequence of the foregoing, and given that the medical evidence establishes that the condition now suffered by Mr Anastasiou existed at the time that the sentence was imposed upon him, albeit unknown to any of the participants in the sentencing process, the medical evidence is admissible under one of the exceptions and able to be utilised by the Court.
20 Thus, the Court is entitled to receive fresh evidence for the purpose of reconsidering the sentence, in circumstances such as the present, where the relevant medical condition was present at the time of sentencing (although unknown) and subsequently became known: see also R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458; R v Maarbani [2001] NSWCCA 509 at [17]; and Iglesias v R [2006] NSWCCA 261 at [10], per McClellan CJ at CL.
21 Nevertheless, the mere fact that the Court may take into account the evidence does not necessarily result in a different sentence and does not necessarily warrant the overturning of the sentence below. The care to ensure the integrity of the sentencing process, to which Gleeson CJ, Samuels JA and Loveday J referred, as repeated above, requires the Court to ensure that all of the circumstances are taken into account, including the capacity of the executive to exercise its discretion to account for any sympathy which no doubt may arise.
Relationship between present sentence and medical condition
22 The state of health of an offender and the effect of imprisonment of that state of health is a relevant consideration in the determination of an appropriate sentence. Because it is relevant as a consideration, it is always a factor that must be taken into account in order to exercise properly the discretion reposed in a sentencing court. The manner that it is taken into account was expressed by the South Australian Supreme Court in a passage on which this Court and other courts have often relied:
"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." ( R v Smith (1987) 44 SASR 587, per King CJ, at 589.)
23 The approach that the Court ought properly take, consistent with flexibility in sentencing, was summarised in R v Sopher (1993) 70 A Crim R 570 in the following passage:
"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 will 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 matter to take into account." ( R v Sopher (1993) 70 A Crim R 570 at 573-574, per Smart, Allen and Levine JJ.)
24 The evidence before the Court is that, because of his now evident condition, Mr Anastasiou is in Long Bay Hospital, a medical facility that forms part of the corrective services facilities. During part of his stabilisation process he spent six weeks in Prince of Wales Hospital, during which time he was prescribed morphine. From time-to-time, at Long Bay Hospital, he has also been prescribed morphine. The morphine, as may be obvious, is for the purpose of controlling the pain. One of the medical practitioners at Long Bay Hospital has been reluctant to prescribe morphine, possibly because of Mr Anastasiou's drug addiction, and prescribes methodone and other pain relief. As Mr Anastasiou describes it, the medical treatment at Long Bay is reasonable and no one suggests that medical treatment being provided by Corrective Services is otherwise than appropriate.
25 Is Mr Anastasiou's incarceration more onerous because of his medical condition? Undoubtedly, Mr Anastasiou is, from time-to-time, in pain. When he is not in pain, as he describes it, he is able to socialise, walk around the wards and is unaware of the pain. Had he not been in hospital he would have served his sentence, it seems, at a low security gaol, possibly at a camp, and his conditions are therefore more restrictive than they might otherwise have been. However, it is not his incarceration which requires greater restriction. His restriction is caused by his illness and medical treatment and, on the material before the Court, would occur whether or not Mr Anastasiou was in the prison system.
26 The medical evidence also includes a report from Justice Health which describes Mr Anastasiou's condition. It says:
"on examination he showed no signs of distress. He moved freely, his blood pressure and pulse were normal and he had no abdominal tenderness. He did have signs of advanced liver disease; gynecomastia, oedema and palmer erythema."
This examination occurred in circumstances where Mr Anastasiou had been on methadone since 1996 and was prescribed 100mg per day which, over the last few months, had increased to 120mg twice per day. He is also prescribed oxychodone, 40mg twice per day and ibuprofen 400mg three times per day.
27 The alternative, suggested at appeal, to remaining in prison and treatment by Justice Health, is placement at the Salvation Army's facility, Foster House. There is written confirmation, before the Court, of accommodation being available at those premises. There is no evidence, other than the evidence adduced in relation to his treatment while in the care of Corrective Services by Professor Lloyd at Prince of Wales Hospital, of the availability of medical treatment and the capacity of Mr Anastasiou to both arrange and afford the kind of medical treatment that would be required. Further, there is some doubt (see paragraph 7 of the Affidavit of Ms Witmer of 22 February 2010) that Foster House would be able to continue to offer accommodation once Mr Anastasiou's illness became more problematic and more incapacitating. The suggestion is that, ultimately, facilities at a hospice would be required.
Conclusion
28 The sentence imposed upon Mr Anastasiou cannot be described as harsh. It is at the lower end of the range of sentences that were available to be imposed upon him. As already stated, no complaint is made as to the sentence that was imposed.
29 It would have been extraordinary, even with the knowledge that the Court now has of Mr Anastasiou's health, for Mr Anastasiou to have escaped incarceration, given the circumstances of his offending and the breaches of the Drug Court arrangements that had occurred.
30 There is no suggestion that Mr Anastasiou's incarceration will aggravate his illness. Indeed, on the evidence before the Court, it is plain that, as tragic as are the circumstances of Mr Anastasiou, he is being treated appropriately by Justice Health. His preference for morphine as a painkiller, as distinct from methadone, may be understandable, but there is no evidence that the restrictions on the prescription of morphine will necessarily continue.
31 Further, the treatment that he is currently prescribed seems to be, on examination, such that he is not experiencing distress, beyond the obvious distress of suffering from an illness of this kind. It cannot be suggested that, even with the illness, if it were known at the time of sentencing, Mr Anastasiou would have escaped the imposition of a full-time custodial sentence.
32 Critical to the question of whether this Court should intervene is whether Mr Anastasiou's medical condition, as we now understand it, will render his period of incarceration more onerous than was appreciated when he was sentenced. In one sense that is so. In another sense, his incarceration may be providing him with medical care that is otherwise not available. A consideration of these issues requires a consideration of Mr Anastasiou's physical condition as it now is, the availability of medical facilities within the prison system and whether those facilities can provide adequate treatment for his condition.
33 I have no doubt that Mr Anastasiou can be adequately treated in prison. There are available medical facilities conducted by Justice Health, which, on all the evidence, is at the very least reasonable and appropriate. It has been shown in this case that, in the past, he has been provided medical attention at Prince of Wales Hospital by leading specialists where more specialised attention is required.
34 There is no doubt that the terminal illness of the applicant, Mr Anastasiou, is one which evokes great sympathy, not least from the Court. But sympathy is not the test that this Court must apply. The Court must apply principle.
35 Mr Anastasiou is currently appropriately accommodated within the prison system. He will, of course, get worse (or at least that is the expectation of the medical experts). When he does (and even now), he is entitled to apply for and be granted parole or subject to the prerogative of mercy.
36 The terms of s 160(1) of the Crimes (Administration of Sentences) Act 1999 provide that, although not eligible for parole, "if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances", the Parole Authority could release him from prison. Further, s 270 of the aforesaid Act preserves the prerogative of mercy available in the Executive Government.
37 No doubt, there will come a time when it will be essential for Mr Anastasiou to be released from prison. His release from prison, at this stage, would be as a result of sympathy, not principle, and such sympathy is the province of Executive Government, either through the Parole Authority or the prerogative of mercy; not by the grant of the appeal.
38 In all of the circumstances, and notwithstanding the sympathy for the applicant, I would propose that the Court make the following orders: