Anesbury v R [2009] NSWCCA 245 | Case summary

Judgment 1 SPIGELMAN CJ: I agree with Grove J. 2 McCLELLAN CJ at CL: I agree with Grove J. 3 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Puckeridge DCJ on 30 October 2008 at Wagga Wagga District Court. The applicant pleaded guilty to an offence which may shortly be described as blackmail. Pursuant to s 100A of the Crimes Act 1900 the offence carries a prescribed maximum penalty of imprisonment for 10 years. 4 The applicant was sentenced to imprisonment for a total term of 2 years 8 months consisting of a non-parole period and balance term, each of 16 months. His Honour ordered the non-parole period to commence on 28 September 2008 to take into account pre-sentence custody and ordered release to parole (the total term being less than 3 years) on 28 January 2010. I anticipate sentence administration will adjust that release date to 27 January 2010. 5 The applicant has appeared for herself in this Court and submitted grounds of appeal stating: "1. His Honour erred failed to take into account further medical conditions. 2. His Honour didn't consider that there was limited access to physiotherapy, hydrotherapy." 6 In amplification of those stated grounds the applicant submitted a further document stating: "1. His Honour didn't take into consideration the impact on my medical condition by being held in custody." 7 She confirmed at the hearing that the essence of her complaint was that, since sentence, her health has deteriorated beyond what was then anticipated and, second, that she has developed other ailments. 8 Some details of facts asserted by the Crown were originally disputed and his Honour heard evidence and determined the dispute, proceeding to sentence on the basis of his findings. There is now no dispute in relation to the facts upon which his Honour based his sentence assessment. In brief, the applicant was a friend of a woman who was a patient of the complainant, a medical practitioner. On a visit to the home of the patient, the woman and the doctor engaged in sexual intercourse. Subsequently, the woman, accompanied by the applicant visited the surgery of the complainant where it was claimed that they were in possession of a video tape recording the sexual activity at the patient's home. After this assertion, the woman left the room and the applicant demanded that the complainant pay $100,000 otherwise she would send the tape to the Medical Board and to a television programme. 9 The complainant contacted his medical defence insurers and thereafter the police. Text messages were sent to him regarding the demand and arrangements were made to meet on 6 July 2007 outside a credit union office in Wagga Wagga. The complainant made excuses concerning his inability to keep the appointment but indicated that he would send a representative. As a result, an undercover police officer drove to the location of the arranged meeting. He had $5,000 in cash with him. The applicant came to the car and there was an offer of this amount and discussion relevant to the demand and the shortfall from the demanded $100,000. In the course of discussion the applicant said that the money was for her friend (the patient) to enable her to go to Melbourne. The conversation between the applicant and the undercover police officer was recorded and a transcript was before the sentencing judge. 10 Other police arrived and the applicant was arrested and charged. It can be noted that the applicant has a prior record of offending stretching between 1993 and 2004. Many of the offences were against traffic laws and included two convictions for driving with the prescribed concentration of alcohol and three convictions for driving whilst disqualified. The record also contains convictions for stealing and assault, including assaulting police. 11 Medical and psychological reports were tendered at the sentencing hearing. It was shown that on 17 June 2008 the applicant had undergone an L-5/S1 decompression and fusion with the insertion of a pedicle screw by a neurosurgeon, Dr Steel, at St Vincent's Hospital. On 11 September 2008 she underwent a right open carpal tunnel release at day surgery in Calvary Hospital, Wagga Wagga. There had been adjournments of the proceedings while these procedures took place. 12 In his remarks on sentence the learned sentencing judge made express reference to the medical material. The relevant portions of his Honour's remarks are as follows. It might be noted that Dr Habicht is a psychologist and that her gender is mistakenly recorded in the extract: "It has been submitted on behalf of the offender that the court take into account her mental state at the time and the medical evidence, particularly that from the doctor, Dr Manuela Habicht. In his report of 16 October 2008, Dr Habicht states that the offender, as at that time, showed clinical evidence of depression. He (sic, she) stated in his report that the depressive symptomatology was likely to have been contributed to by abuse during childhood and domestically violent relationships. He further stated that it was likely to have worsened as a result of poly drug use. The offender has had a number of medical conditions for which she is taking medication. The medication and the nature of the medication is referred to in the report of Dr Habicht and also in the report of a Dr George Saleeb, which report, together with that of Dr Habicht, is part of exhibit 1. The medication is for muscle relaxants to her back muscles, blood pressure, analgesia, asthma, insomnia and now indigestion. It was the opinion of Dr Habicht that given the high level of pain relief required by the offender, it was evidence that her rational thinking was impaired. He stated that while she was able to differentiate between unlawful and lawful behaviour, she had extreme difficulties with forward planning and organisational activities. He stated that she, the offender, also presented with some confusion and memory difficulties at both of the sessions which she attended with him. The offender has had a fusion operation in June of this year. In September of this year she also underwent a right open carpal tunnel release at the Calvary Day Procedure Centre. In a view on 23 September 2008, Dr Saleeb said the wound was well-healed and she was using her hand well and her numbness had resolved completely. Clearly on the evidence before me, the offender is continuing to have a need for significant amounts of medication for pain relief. Dr Habicht suggests in his report that correctional facilities are not aimed at treating health conditions. He said there were no programmes - and it must be as far as he is aware - that are aimed to deal with pain and related dependence on medication. He also stated there was no opportunity to deal with her sexual abuse experiences when she was a child as well as the experience of physical violence during past relationships. He considered that her pain management could only be facilitated in the community because no correctional facility in New South Wales allows access to hydrotherapy, exercise, physiology, physiotherapy as well as adequate pain management. Whilst I take those matters into account, the court must consider the objective seriousness of the offence and the objective criminality involved in the offence. Taking those offences into account to which I have earlier referred, I consider that there is no option other than a custodial sentence. I do take into account in determining the sentence the views of Dr Habicht as stated in his report that the offender has extreme difficulties with organisational activities and presented with confusion and memory difficulties at both sessions. However, on the transcript of the intercepted telephone calls, it is clear that the offender calls, it is clear that the offender was able to organise herself and stood to have a significant financial gain for herself if her demand had been met by the complainant. ………………… I do, however, take into account the fact that there is a need for special care to be taken of the offender while she is in custody, and that that care will place onerous duties on the correctional facilities. There is a need, on the medical evidence, for her to continue to have medication. I also consider that there is a need for her to attend any programme that could assist in relation to anger management and any therapy which could be of assistance in relation to her anxiety or depressive condition. I too, like Dr Habicht, am unaware whether or not such therapy is available, but if it is, I would recommend that it be forthcoming." 13 It is plain then from the foregoing that his Honour was aware of the applicant's compromised condition of health and her need for care and supervision. 14 The difficulties which may affect a prisoner by reason of a poor state of health may make it appropriate to reflect that circumstance by reductions in both sentence and non-parole period: R v Miranda (2002) 128 A Crim R 362. It is apparent that his Honour was taking into account the matters referred to in the above extract to the advantage of the applicant in mitigation of sentence assessment. 15 The applicant drew attention to the recent decision in Pfeiffer v R [2009] NSWCCA 15. In that case the sentencing judge had responded to evidence about the poor health of the offender by varying the non-parole period and it was determined that there was error in failing to take into account health issues when considering total sentence. However, each case must be determined in the light of particular facts and it might be noted that in Pfeiffer there was a probability of a necessity for surgery to be undertaken which was current at the time of sentencing and there was a significant qualification on the ability of Justice Health to see to the needs of the offender whose "catalogue of medical problems" were predicted to be exacerbated by custody despite treatment available by Justice Health. Importantly, the changes in the offender's situation were assessed in the circumstance that the Court was resentencing after error at first instance had been determined. 16 In support of the applicant's contentions there were tendered a bundle of documents including extracts from Justice Health records. In addition, some other Justice Health material was exhibited to an affidavit by Mr Galanis of the Office of the Solicitor for Public Prosecutions. For the purpose of dealing with the applicant's claims, I have examined the material. 17 It should be observed, and stressed, that the material is in no order or sequence. There are reports of findings of radiology including CT and MRI scans without comment by treating or consulting clinicians to explain the significance of them. 18 It is convenient to deal first with the applicant's assertions concerning new ailments. She specified that she was suffering conditions affecting her kidney, liver and ovaries. I have searched the material for references. 19 A report from Nepean Hospital (Medical Imaging Department) dated 12 December 2008 on a CT of the applicant's lumbo sacral spine notes what I infer as incidental findings to the spinal investigation: "There is a left adrenal lesion measuring 1.4 cm in size and the Hounsfield Unit measures 15, this makes the lesion indeterminant for adrenal adenoma. Left ovarian cyst is noted. ……... A left adrenal lesion of uncertain nature is identified." 20 At the same hospital an abdominal ultrasound was performed on 14 January 2009 concerning reported pain following a fall: "The liver has a normal size and increased echotexture. There is an area of fatty sparing adjacent to the gallbladder measuring approximately 1 x 1.5 x 1.5 cm. Otherwise, no focal mass lesion is identified in the liver. No intrahepatic biliary duct dilatation is seen. The common bile duct has a normal diameter ranging from approximately 2.5mm-4mm. The portal vein has a normal diameter of approximately 12.5mm with normal hepatopetal blood flow direction. The gallbladder has a normal wall thickness of 1mm. The hepatic veins are patent. The kidneys are normal in length, with the right measuring approximately 13cm and the left measuring approximately 12.5cm. Two small echogenic areas with cortical thinning in the right kidney may represent areas of scarring. A left adrenal mass that was previously identified on CT is not seen in the current study. The spleen measures approximately 10.5cm in length. The visualized aorta has a normal diameter of approximately 1cm. CONCLUSION: Fatty liver with a small area of fatty sparing is noted. Two small echogenic areas in the right kidney may represent scarring. Previously noted left adrenal mass on CT is not seen in the current study." 21 There is a request by a Dr MacPherson of Justice Health seeking an "abdo CT scan" for clarifying the reported left adrenal lesion. 22 This was done on 4 February 2009 and the following findings reported: "The previously demonstrated left adrenal lesion is again seen measuring 1.2 x 1.45 cm in size on an axial image. Its CT density measures 70 Hounsfield Units. This makes the lesion indeterminate for adrenal adenoma. The liver demonstrates diffuse fatty infiltration. Both kidneys, the spleen and the pancreas outline normally. Instrumentation is noted in the lumbosacral spine. CONCLUSION: There is a left adrenal lesion as described. An MRI of the adrenal glands may be of further value to confirm the diagnosis." 23 An MRI was performed on 17 June 2009 and reported as follows: "In the superior aspect of the left adrenal gland there is a 14 x 10 x 10mm lesion which is fairly well circumscribed and shows iso-signal to liver on T1 and slightly heterogeneous signal on T2. Mild contrast enhancement is noted. This structure demonstrates signal drop on the out of phase sequence. The overall appearance of the lesion is in keeping with an adrenal adenoma. No focal lesion is identified within the visualised liver, pancreas, spleen or kidneys. CONCLUSION: The lesion in the left adrenal gland has MRI features in keeping with a adrenal adenoma." 24 As earlier stated, there is no clinical opinion about the significance of these various findings. It might be observed that medical dictionaries define an adrenal adenoma as a benign epithelial tumour affecting a kidney. The emphasis is added. There is no comment about the observations concerning the liver or the ovarian cyst. 25 There is no material from which it can be determined whether any of the findings may be provocative of symptoms of pain or discomfort or that they would otherwise incommode the applicant. There is no evidence of any potential to endanger the applicant nor what treatment, if any, would be appropriate. 26 Insofar as the applicant relies upon asserted new conditions affecting her kidneys, liver or ovaries, there is no basis upon which this Court should intervene on sentence. 27 There is no contest about the circumstance that the applicant underwent major spinal surgery in June 2008. There were adjournments of the sentencing proceedings in that regard. I note that there has been no suggestion of any continuing problem relating to the carpal tunnel procedure. The evidence before his Honour from the surgeon, Dr Masson, was that the applicant had an excellent prognosis and that no further treatment was required. 28 It remains to consider the applicant's contentions concerning her back condition. In a succinct submission the Crown Prosecutor contended that the authorities have done as much as they can in terms of attending to the applicant's condition. The sentencing judge was obviously aware that the consequence of incarceration would be more onerous for the applicant than for a person not in her condition and he recognized that treatment was a matter for the authorities. There is however, in my view, a distinction to be drawn between a recognition that the health of a prisoner will result in incarceration being more onerous on the one hand, and an unanticipated deterioration in the condition of a prisoner whereby, beyond the expectation at the time of sentencing, further imprisonment will significantly compromise the health of the inmate. It is in respect to whether the latter is the case that an examination of the documentation has been undertaken. 29 In a written submission the applicant stated that until she was imprisoned on 30 October 2008 she was at home recovering having physiotherapy, hydrotherapy three times a week and a "spinal Sealy's posture bed" and improving very well. She asserts that since being in gaol she has not received any physiotherapy or hydrotherapy at all and is provided with a small bed with a basic mattress. 30 There is a series of letters from Dr MacPherson of Justice Health addressed to various doctors at the Neurosurgery Clinic at Nepean Hospital and "to whom it may concern". His observations represent the nearest coincidence between the applicant's complaints and the documentary records, however it is plain that a considerable content is recitation of her subjective contentions. 31 On 26 November 2008, in relation to the spinal condition in particular, Dr MacPherson wrote: "The pain has been worse since her incarceration, probably because she has been unable to access physiotherapy, hydrotherapy, or a comfortable bed. She does complain of some areas of numbness and has apparently had continence issues too." 32 On the same date another letter from Dr MacPherson stated: "In custody she has limited access to physiotherapy, no access to hydrotherapy and the beds are very basic. This would be expected to cause a worsening of her pain and, indeed, this is what she reports. Her access to specialist care is also somewhat restricted in custody. A custodial sentence is, therefore, detrimental to Ms Anesbury's physical health. Pain control measures are largely limited to drug treatment." 33 Dr MacPherson wrote two other letters dated 7 January 2009. A letter to the Neurosurgery Department at Westmead Hospital detailed that the applicant was experiencing increasing back pain and neurological symptoms described as burning pain in the left groin moving to the inner thigh and leg to the whole foot, paraesthesiae of the same distribution and weakness of toe flexion and foot, dorsi flexion on the left side, similar symptoms developing on the right but less pronounced, and incontinence of urine. 34 In the second letter of that date Dr MacPherson stated: "Since her incarceration Ms Anesbury has been experiencing increasing back pain, more worryingly, increasing neurological symptoms, including weakness of the toes of the left foot and urinary incontinence. I am worried about the possibility of permanent nerve damage." 35 On 30 April 2009 the applicant was seen at St Vincent's Hospital by Dr Perotti, a neurosurgical registrar. On return from this examination the applicant reported to Justice Health that she had been told that: "I am going to be in a wheelchair" and "I have osteoarthritis all through my spine because I didn't have hydrotherapy here."

The evidence shows that hydrotherapy cannot be made available but there is no corroboration of the statements which the applicant claimed were made to her. However, a letter signed by Dr Wilson on behalf of St Vincent's Hospital dated 1 June 2009 notes that when the applicant saw Dr Perotti she complained of worsening back pain, urinary incontinence, reduced sensation in the L5 dermatome, and severe neck pain into the shoulders. On examination there was reported reduced muscle power in plantar flexion bilaterally, reduced sensation in the dorsum of the foot and ankle reflexes reduced. It was said that Dr Perotti arranged repeat CT and MRI scans with Dr Steel's next clinic. 36 A report of an MRI scan performed at Nepean Hospital on 26 May 2009 expresses the conclusion: "Widespread degenerative changes are seen throughout the cervical spine, mid thoracic spine and lower lumbo sacral spine. No definite nerve root impingement or spinal cord compressions identified. The L5 neuro exit foramina cannot be adequately assessed due to the adjacent metallic artefacts from the posterior fusion." 37 A CT scan at the same hospital on 19 May was inconclusive. 38 The most recent report follows a review of the applicant as anticipated by Dr Perotti at Dr Steel's neurosurgery outpatient clinic on 3 September instant. The report is signed by Dr Reddy, a registrar for Dr Steel. The content of the report is (omitting history already noted): "Whilst she initially improved post-operatively, she has subsequently developed further back and limb pain. Review of her recent MRI does not suggest any pathology that would alleviate her symptoms by surgery. She did not have her CT (which will need to be reviewed), however the report does not suggest any problems with her hardware. Overall for the next 6 months, she would benefit from a routine physiotherapy program. Her analgesic requirements would be best treated with a non-steroidal anti-inflammatory agent and medication such as oxycontin or oxycodone. I would not use methadone to treat her pain. Kim is, understandably, quite concerned that her medical care is being compromised by her imprisonment. If she was to get the analgesia as recommended and routine physiotherapy this would not be the case. If she was not to get the analgesia as recommended and she could not get routine physiotherapy due to the constraints of the judicial system - then it would seem that her medical care is being compromised." 39 A letter from Dr Hampton on behalf Justice Health states: "Hydrotherapy is not available for Justice Health patients however physiotherapy can be arranged at short notice if required." 40 The records show that the applicant has not had physiotherapy although it was noted that on at least one occasion the applicant declined an offer of physiotherapy. She explained that her rejection on that occasion was associated with the then current symptoms from a fall and at a time when she was scheduled to see Dr Steel and in that circumstance she wished to be advised by him. The Justice Health notes confirm the explanation. 41 It would be an exaggeration to state that any clear picture of the applicant's state of health has emerged. 42 Whilst, as noted above, there have been from time to time expressions of concern there is no medical evidence which demonstrates an actual compromise of the applicant's health beyond what was recognized as the likely course when sentence was imposed. Throughout the material there appears a multitude of complaints which have been investigated although the observation of Dr Abbott of Justice Health that "there certainly seems to be a psychogenic overlay complicating (the applicant's) presentation" should not be overlooked. 43 There appears to be some distance between the level of the applicant's complaints and what can be gleaned from the documentation attributable to health carers. At a consultation on 4 June last the Justice Health notes record: "Using dramatic language. 'Whole body seizing up', 'not one part of my body that doesn't hurt, except my right hand'. Yet during consultation moving around freely and walked in and out of room and in and out of chair without apparent pain."

Anesbury v R

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