Brierley v R

Facts

1. The applicant was sentenced upon the basis of agreed facts.
2. On 17 December 2019, the applicant, then 82 years of age, was at Sydney Airport when he was stopped by Australian Border Force staff who examined devices in his possession and located child abuse material. This material is the subject of Count 1. The applicant admitted that he had downloaded the images from the internet and said that he looked at them for "recreation" and because they "looked interesting". He was arrested and taken to Mascot police station where he declined to be interviewed.
3. Later that day, police executed a search warrant at the applicant's home and found further child abuse material on electronic devices on his dining table (Count 2) and on electronic devices in the drawer of a hallway table and in the applicant's bedroom (Count 3).
4. The applicant downloaded all of this material from the internet. The frequency with which the images were viewed was not known. The images could be viewed without the need for a password and the images were not otherwise hidden or encrypted.
5. The material was classified by police using the Interpol Baseline categorisation system as follows: 1. Category 1: An image depicting a real prepubescent child and the child is involved in a sex act or the material is focused/ concentrated on the anal or genital region of the child. 2. Category 2: Material that is not included in category 1 and such material includes a person who is, appears to be, or is implied to be, a child and is depicted or described in a way that reasonable persons would regard in all the circumstances as offensive who is, relevantly, engaged in a sexual pose or sexual activity, or is exposing the genital or anal area (whether bare or covered by underwear) or the breasts of a female person whether or not the breasts are sexually developed. 3. Category 3: Images that are not illegal or child abuse material but which are of interest to investigators because they may form part of a series where the same child is depicted in other material in a manner that amounts to child abuse material.
6. Police located one category 1 image and 46,794 category 2 images on the applicant's devices. However, there was significant duplication of images across the devices where the precise extent of the duplication has not been quantified. The category 2 images were located amongst a larger number of category 3 images.
7. The facts summarised the material that was the subject of each count as follows: Count Location of material Number of images Category 1 or 2 Other observations All images were category 2, featuring clothed children in sexualised poses, where some of the images were focused on the genitals or breasts of the child. The images depicted females between 4 and 12 years old. 1 Devices in the applicant's possession at the airport, being a Lenovo ThinkPad and two USBs 11,765 including duplicated images One of the USBs also contained two word documents detailing a sexual fantasy of sexual abuse of an 11-year-old girl and the sexual assault of a 9-year-old girl. None of the images depicted a child who was a victim of torture, cruelty or physical abuse, a child engaged in, or apparently engaged in, a sexual act, or a child in the presence of another person engaged in, or apparently engaged in, a sexual act. A video was also located on one USB which ran for about two hours and featured six young female children wearing swimwear and focusing on their breast and genital areas. 2 Devices on the applicant's dining table, being a HP Envy Laptop and four USBs 26,758 including duplicated images All images were category 2 None of the images depicted a child who was a victim of torture, cruelty or physical abuse, a child engaged in, or apparently engaged in, a sexual act, or a child in the presence of another person engaged in, or apparently engaged in, a sexual act. 3 Nine devices in the hallway and bedroom of the applicant's home, being eight USBs and a Toshiba tablet 8,272 including duplicated images All images were category 2, except one image which was category 1 and depicted a naked 9 to 11-year-old child on her hands and knees on a bed with her anal/genital region uncovered and facing the camera. None of the images depicted a child who was a victim of torture, cruelty or physical abuse, a child engaged in, or apparently engaged in, a sexual act, or a child in the presence of another person engaged in, or apparently engaged in, a sexual act. The category 2 images were of children engaged in sexualised poses in swimwear and underwear where the youngest child appeared to be four years old. The category 1 image was emailed to the applicant in 2007.

1. The applicant is a citizen of Australia and New Zealand. He has no criminal history in either country.
2. The applicant was born in New Zealand in 1937 and was the elder of his parents' two children. He had an unremarkable upbringing. When he left school, he worked as an office worker and then a secretary before starting a stock market newsletter which he later used to form a public company, Brierley Investments Limited, which eventually became the biggest company in New Zealand. He also started a second company, Industrial Equity Limited, which was briefly one of Australia's largest companies.
3. The applicant never married and has no children. His only committed relationship was in the 1970s for two or three years.

Grounds 1 and 2

1. None of her Honour's express findings was challenged by the applicant in this Court. Grounds 1 and 2, which can be considered together, instead assert that her Honour made a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in that she took into account an irrelevant matter when assessing the objective seriousness of the charged offences alleged to have been committed on a single day, namely the applicant's uncharged possession of the child abuse material over time.
2. In the course of her remarks on sentence, her Honour said this: "Accepting as I do that the three offences involve the possession of images the vast majority of which fall towards the lower end of the scale encompassed by Category 2, the context of his possession of these types of images must be recognised. Even allowing for significant duplication, the offender was in possession of a large number of images which he had possessed for a considerable period of time…The material was obtained and retained because of this offender's longstanding sexual interest in girls and because it was material that he used for sexual gratification. … As I have referred to earlier, the evidence establishes that the offender was in possession of Child Abuse Material for an extended period of time and not simply when he was in his 80s when his health and cognition was declining… … Section 5 clearly requires the Court to consider whether an alternative to imprisonment is appropriate. Not only am I satisfied that a sentence of imprisonment is required, but I am satisfied that nothing less than that would address the purpose of sentencing and reflect all of the matters to which I have referred. In particular, the quantity of material in the offender's possession which even allowing for significant duplication was vast, the many victims involved, the fact that the offending was not isolated or aberrant, the fact the material includes a Category 1 image and documents describing the sexual assault or abuse of two girls and the fact the offending was motivated by sexual interest and sexual gratification. … While there was a substantial duplication of images that cannot be quantified, the offending did not occur over a single short time period. The material was located on a number of different devices and in different locations." [Emphasis added]
3. The applicant contended that the emphasised words revealed that in assessing the objective seriousness of the offending, all of which occurred on 17 December 2019, her Honour erroneously took into account the undisputed but irrelevant fact that the applicant had possessed the offending material for many years. So much is said to follow from her Honour's use of the expression "the offending" which could only legitimately have referred to possession of the material on the single day charged and not, as the applicant contends her Honour appears to have said, over an extended period. The fact that the applicant had possessed much of the material for a number of years was not in dispute.
4. The Crown maintained that, read as a whole, no such interpretation should be given to her Honour's use of the expression "the offending". Read as a whole it is patently clear that her Honour was clearly aware that she was sentencing the applicant for possession of the abuse material for each count on a single day. Her Honour was entitled to take account of the admitted possession of the material for an extended period so as to neutralise any suggestion that possession for a single day only counted in favour of a claim in mitigation. Her Honour's reference to the offending being neither isolated nor aberrant could only properly be understood to have been made in that context. In no sense could her Honour's remarks be taken to suggest that she took account of possession of the material over time as a circumstance of aggravation: see R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209.
5. To the same effect in Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308 at [49], Basten JA observed in this context as follows: "It is not in dispute that a course of conduct may be taken into account, if satisfactorily established, to deny an offender the benefits of leniency flowing from an assumption that the offences charged were isolated incidents."
6. In my view, that was the approach taken by her Honour in the passages quoted from her remarks on sentence. Grounds 1 and 2 should be dismissed.
7. FAGAN J: I agree with Harrison J's reasons for rejecting grounds 1 and 2. My reasons for having joined in the orders made by the Court at the conclusion of the hearing are directed to ground 3, which I concluded should be upheld.

Ground 3 - evidence of post-sentence circumstances

1. In support of ground 3, the applicant sought to read affidavits that would establish (a) serious adverse developments in his physical health that were not the subject of the evidence before the learned sentencing judge and (b) conditions of his imprisonment that are markedly inferior, for the management of an 84-year-old prisoner in poor health, relative to the conditions that her Honour had expected based on evidence given in the proceedings on sentence.

Principles governing receipt of the evidence

1. In order to introduce evidence of the nature described above on the application for leave to appeal, the applicant must show that his case is exceptional to the usual limits of the jurisdiction and function of this Court. The limits were stated by Street CJ in R v Vachalec [1981] 1 NSWLR 351 at 353-354, as follows: "This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them. […] The responsibility to provide adequate and proper medical treatment for prisoners rests squarely on the shoulders of the prison authorities."
2. In R v Vachalec, the medical condition of the applicant, his need for a special diet and the expectation that his condition would cause hardship during imprisonment had been taken into account by the sentencing judge. The Court therefore declined to receive, on his application for leave to appeal, evidence to the effect that the anticipated difficulties were actually being experienced. The sentence was not disturbed. Nagle CJ at CL and Lee J concurred.
3. The central principle was reiterated by Street CJ (Moffitt P and Lee J concurring) in R v Munday [1981] 2 NSWLR 177 at 178: "It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court."
4. Exceptions have been recognised in some classes of case, subject to criteria that the Court has been at pains to circumscribe. A list of established categories of exception was given by McClellan CJ at CL in Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289 at [3]. The underlying rationale for exceptional receipt of evidence tendered to establish a circumstance that has emerged after sentence was passed was explained by Simpson J in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [113], as follows: "[113] Too rigid an application of the principle clearly has potential to be the cause of injustice and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217."
5. In Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 at [66], Beech-Jones J identified from the cases three situations involving an offender's medical condition in which the Court has been willing to receive evidence of events that have occurred after the passing of sentence: "Firstly, where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly, where although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261; see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL). Thirdly, where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer v R)."
6. The Crown as respondent to the present application has not sought to challenge or contradict the substance of the affidavits tendered by the applicant. I am satisfied that those affidavits should be received by the Court. The affidavits contain evidence within the first of the categories of exception identified by Beech-Jones J. They further establish a failure of expectation as referred to in the third of his Honour's categories.

Post-sentence manifestation of a condition not identified at sentence

1. A letter dated 20 July 2021 from Dr James Chesworth, the applicant's general practitioner, was amongst the medical evidence tendered by the applicant in the sentence proceedings. The letter listed the applicant's medical conditions, medications and "Check-ups", providing the names of specialists to whom he had been referred and who had carried out medical procedures. The information related to the period of three years from 18 April 2018 to mid 2021. Under the heading "Medical Conditions", the last entry was as follows: "Solar keratoses, Skin cancers. Sees dermatologist Dr Bryan Pang" Under the further heading "Check-ups", this information was provided: "The last letter we received from Dr Pang was in July 2020 - I don't know how often Sir Ron is seeing Dr Pang"
2. In medical terminology, solar keratoses are precancerous scaly spots found on sun-damaged skin. They are considered an early form of cutaneous squamous cell carcinoma. With respect to the then current state of the applicant's solar keratoses and/or skin cancers, Dr Chesworth's letter contained no information beyond the two lines quoted above. Nor was additional evidence on this subject tendered in the sentence proceeding from any other source. No report or letter from Dr Pang was tendered. This aspect of the applicant's health was not referred to in written or oral submissions. It was not referred to by her Honour either during the course of the sentence proceeding or in the Remarks on Sentence. As at 14 October 2021 when sentence was passed, her Honour was not aware that the applicant's skin condition had advanced to the point where it could be expected to contribute significantly to his hardship in prison.
3. The affidavits sought to be read on the present application would establish the following with respect to the applicant's skin cancer: 1. On 14 October 2021, after the sentence had been pronounced and while the applicant was awaiting Corrective Services transport, he showed his solicitor an "injury" on his leg which he said was painful. Undoubtedly, this was the lesion that was subsequently found to be malignant. 2. On 21 October 2021, the applicant was being held in the Metropolitan Remand and Reception Centre ("MRRC"). He informed his solicitor by phone that his leg was still sore and that there was a lump. He had raised this with a Justice Health nurse and was concerned about it. His solicitor sent an email that day to the Justice Health Client Liaison Officer advising of the applicant's concern. The email was not replied to. 3. On 25 October 2021, the applicant was examined by a doctor for the first time since his admission. He showed the doctor his leg, which was getting worse. The solicitor spoke to the doctor by phone during the examination and emailed the Client Liaison Officer later that day to inform her of the applicant's leg symptoms. The solicitor requested to be informed "if there is anything I can do from my end to get these issues addressed". There was no substantive response to the email. 4. On 4 November 2021, the applicant was moved to the Metropolitan Special Programs Centre ("MSPC") at Long Bay. On 5 November, he told his solicitor that his leg had been examined and that he had been put on a list to see a doctor at Prince of Wales Hospital in 2022. He said that the lump was "warm to touch" and that he was extremely worried about waiting that long. The solicitor immediately reported this to the Client Liaison Officer by email. Sometime later, the solicitor was informed that the appointment was for March 2022. 5. On 12 November 2021, by email, the solicitor advised the Client Liaison officer that the applicant had said "that he has a history of skin cancers" and suggested that the situation "would warrant urgent review". 6. The suggestion of urgent review was not answered in writing. However, apparently in response, on 16 November 2021, a doctor in the prison conducted a biopsy of the applicant's lower leg and stitched and bandaged the biopsy wound. 7. On 18 November 2021, the biopsy wound commenced to bleed freely. For two days the bleeding could not be controlled despite the use of pressure bandages and other measures, applied both in the applicant's cell and in the prison clinic. 8. On 20 November 2021, the applicant was admitted to the Prince of Wales Hospital Emergency Department where it was assessed that blood thinning agents, being part of his routine medication, were contributing to the inability to achieve haemostasis of the "2cm diameter deep biopsy wound". In the Hospital, the applicant was informed by a registrar in plastic surgery that the "lesion looks malignant". A tight dressing was removed because of evident reduction of circulation and the applicant was given the following instruction: "[A]void this kind of dressing as when back in gaol he may not be receiving close monitoring and foot could be seriously injured." 1. On some date between 16 November 2021 and 8 December 2021, a pathology report in respect of the biopsy was received, indicating that the lesion to the applicant's lower left leg was a squamous cell carcinoma. On 8 December 2021, he was transported to a day surgery in Macquarie Street and Dr Pang excised the cancer. A large skin graft was taken from the applicant's lower abdomen and used to close the resulting wound. The procedure took six hours, under local anaesthetic. 2. On discharge from the day surgery, Dr Pang advised in writing as follows: "Since both wounds are large and extensive, he will be required to be hospitalised for the next three weeks during his recovery period." Contrary to this advice, the applicant was returned to MSPC immediately and remained in his mainstream cell thereafter, being attended by a nurse once every three days to change his dressings. 1. At the time of the applicant's discharge from the day surgery a Corrective Services officer accompanying him was provided with, amongst other things, a page of Post Operative Wound Care instructions. These included the following: "* keep your leg elevated whenever possible and avoid excessive walking * use wheelchair or crutches for walking * no weight bearing" 1. On 6 December 2021, the applicant exhibited symptoms of a urinary tract infection. Justice Health nurses initially supplied Ural, an effervescent drink, but this was ineffectual. He was not started on antibiotics until 17 December 2021, after repeated complaints of ongoing symptoms. Factors that increase the risk of urinary tract infection in the context of geriatric care are widely known. It would be reasonable to infer that the applicant's restriction to bed rest with elevation of his leg would lead to infrequency of urination, which in turn would increase the risk of such infection. Another factor is poor personal hygiene, which may be expected where the applicant in his cell obviously did not receive full nursing care and where unsteadiness on his feet, due to age and other conditions, deterred him from frequent use of the only shower available. The shower was not equipped with rails or non-slip tiles and, as described in the applicant's affidavits, was not suitable for a geriatric patient. The applicant has suffered recurrent urinary tract infections throughout January 2022. He had a history of them prior to imprisonment. 2. On 28 December 2021, stitches in the surgical wound to the left leg broke and uncontrollable bleeding commenced. The applicant was admitted to the Prince of Wales Hospital Emergency Department. It was found that the skin graft had mostly taken. Haemostasis was achieved and the applicant was discharged, to "rest in bed except for bathroom at least next 48 hrs". 3. On 21 January 2022, the applicant was transported by Corrective Services to Macquarie Street for post-operative follow-up by Dr Pang. The doctor found the left leg surgical wound "mostly healed" but with focal areas of granulation tissue that was still in the process of healing and required ongoing dressing. The applicant had recovered to the point where he could walk with minimal assistance, sit down, lie on the bed and get up unassisted. Dr Pang found the following: "There were multiple skin lesions detected and multiple biopsies were performed over his arms, legs and scalp today to detect further skin cancers." The pathology results from these biopsies were not available at the date of hearing the application for leave to appeal.
4. In summary, the effect of the aspect of the applicant's affidavits that has been considered to this point is that following the imposition of the sentence the applicant has undergone the anxiety associated with diagnosis of the squamous cell carcinoma, which is a very serious and aggressive form of skin cancer; he has had two emergency admissions to hospital for uncontrolled bleeding; he has undergone significant surgery to remove the cancer and has had a prolonged recovery, with post-operative complications. For an 84-year-old offender with many other fundamental health issues, the endurance of this acute episode is a circumstance that has made the relatively short period of imprisonment ordered by the learned sentencing judge very significantly more burdensome than it otherwise would have been and much more burdensome than her Honour anticipated. The applicant has undergone the outworking of an underlying medical condition from which he undoubtedly suffered at the date when sentence was passed but which was not then known to the learned judge. Had the advanced stage of the skin cancer been known, so that her Honour could have taken into account the likely impact upon the conditions under which the applicant would serve his sentence, I consider that her Honour would have been required to take it into account and to reduce the period of imprisonment substantially.
5. The applicant's skin lesion developed rapidly. I do not consider that it would have been possible to predict accurately, from the date of the sentence proceeding, the extent of the surgery that might subsequently be required or the complications that might arise with respect to the pre-operative biopsy and/or with respect to his recovery. It cannot be said that there was any want of reasonable diligence of the applicant or his legal representatives in not adducing evidence on sentence from which these future medical developments might have been foretold.
6. Receipt of the evidence and upholding ground 3 on the basis of that material accords with the approach taken by the Court of Criminal Appeal of South Australia in R v Smith (1987) 44 SASR 587 and by this Court in, for example, Bailey v R (1988) 35 A Crim R 458; Iglesias v R [2006] NSWCCA 261 and Khoury v R. All of those were cases in which a medical condition was present at the time of sentence but not fully understood with respect to its likely future development or its implications for the conditions under which the offender would serve his time in prison. All were cases in which evidence was received of post-sentence medical developments. In each case an appeal against sentence was allowed. The reception of the evidence on this basis is also supported by the decision in Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122, although in that case, the Court determined that the evidence of progression of the applicant's Alzheimer's disease after sentence did not warrant disturbing the orders at first instance.

Unrealised expectations regarding conditions of custody

1. Relying upon reports from a geriatrician and other specialists, her Honour accepted in the Remarks on Sentence that the applicant had sustained a fracture to his right femur in 2017 as a result of a fall. The learned judge noted that extensive complications had followed the operation in which the right femur had been repaired and that surgery on his prostate gland and to remove kidney stones had been carried out in the same year. Her Honour was satisfied that in 2018 the applicant's left hip had been replaced and that in 2019 he had undergone triple coronary bypass surgery. Her Honour accepted that at the date of sentence being passed the applicant's ischaemic heart disease was being managed on medication and monitored with periodic visits to a specialist. The opinion of the applicant's treating cardiologist was accepted, to the effect that he was at risk of deterioration and of critical cardiac events that could result in falls and possible cerebral haemorrhage and/or gastrointestinal bleeding.
2. Her Honour was satisfied that the applicant had become more frail over the year prior to the sentence proceeding and that he had suffered cognitive decline as a result of vascular dementia affecting his short-term memory, verbal fluency and other faculties. The learned judge did not doubt the evidence of the applicant's geriatrician that his vascular brain changes put him at a high risk of suffering falls. It was noted that he had emerging signs of osteoporosis and osteoarthritis and that he walked with a stick and would require increasing assistance with his mobility in the future. A neuropsychologist who had considered an MRI brain scan of the applicant gave the opinion, again not doubted by the learned judge, that the applicant had significant global cerebral volume loss and would continue to deteriorate over time and require a higher level of support than that offered in the general custodial environment.
3. Her Honour accepted evidence that there existed within Long Bay Correctional Complex a facility known as the Kevin Waller Unit, in which "low to medium support" could be provided to aged and frail inmates, and an Aged Care Rehabilitation Unit in which inmates with "medium to high needs" could be accommodated. The sentence hearing took place on 20 August 2021 and thereafter, on 6 October, her Honour requested by email to the parties that Justice Health should be provided with the applicant's medical reports and be asked to report upon how the applicant would be managed if he were sentenced to full-time custody. The applicant's solicitors duly sent to Justice Health the medical reports that had been tendered to her Honour, which of course included the assessments of the applicant's frailty and elevated risk of falls arising from his diminishing mobility, cardiac condition and vascular brain changes.
4. The material before her Honour and supplied to Justice Health included two further important reports. One of these, from an occupational therapist, contained the following information regarding alterations that had been made to the applicant's home to provide safe conditions for showering: "There is a large walk-in shower with a handrail and handheld shower. The tiles in the shower had previously been coated with nonslip surfacing."
5. The second report was from Ms Conroy, whose firm provided care services to the applicant in his home. This contained the following opinion: "In our view, if the Client were living outside that home environment, the aids and assistance currently in situ at home would be required (e.g. shower handrails, nonslip surfaces in bathrooms) but that the Client's future needs would also need to be addressed as outlined (e.g. bed rails, over toilet chair, difficulty with stairs and transfers etc.)."
6. The response from Justice Health came by way of email sent on behalf of the acting Chief Executive of Performance and Planning, Mr Rajiv Anand. It included the following (emphasis added): "Following discussions with the Clinical Director, aged care; Mr Brierley does not meet the admission criteria for the Kevin Waller Unit […] of [scil "or"] the Aged Care Unit at Long Bay Hospital (he is currently self-caring and independent with activities of daily living at home). Should Mr Brierley be admitted into custody […] he will follow the normal clinical pathway through reception at the [MRRC]. Justice Health and Forensic Mental Health Network […] is committed to providing appropriate patient centred care within Adult Correctional Centres. This is facilitated through a staged health assessment process that commences with a reception screening assessment. Further assessments are undertaken in a planned (care) coordinated manner with follow-up appointments arranged for those patients identified at risk of developing or currently have a diagnosed acute and/or chronic condition. […] [Based on the information in the medical reports supplied]: While at MRRC he will have a comprehensive healthcare assessment completed and if required a referral will be completed and a decision made in regards to his placement."
7. Having noted the opinions of the applicant's medical advisers, the learned judge accepted the above assurances from Justice Health, in the following passages of the Remarks on Sentence: "It was contended on the offender's behalf that his advanced age and medical needs, which it was submitted exceeded what would be expected for a man of his age, are not able to be managed in custody and that he is only able to function as well as he does because of the care and support he receives in the community which would be unavailable if he was imprisoned. The authors of the various reports before the Court indicate their belief that if a custodial sentence is ultimately considered appropriate […] the offender may require admission to a specialist unit such as the Kevin Waller Unit or the Aged Care Rehabilitation Unit at Long Bay gaol which are units designed for aged and/or frail inmates with medium to high level needs. That said, having been provided with the medical reports [tendered by the applicant] Justice Health have indicated that the offender does not appear to meet the admission criteria for a specialist unit given he is currently self caring and independent with activities of daily living. However, if he was admitted to custody, he would follow the normal clinical pathway through reception which would include a comprehensive healthcare assessment and if required a referral would be completed and a decision made regarding his placement. […] I have not lost sight of the body of evidence favourable to the offender and of course his age and health, which I understand will deteriorate as he ages. I have considered at length the contention that full-time imprisonment would be inhumane however the offender's subjective circumstances must not be afforded disproportionate weight. The fact that an offender is of advanced age and suffers medical conditions does not necessarily mean a custodial sentence should not be imposed [citation omitted]. It is the responsibility of the executive to care for prisoners in custody and attend to their medical requirements. […] I understand that the precise conditions of custody are presently unknown and will depend upon appropriate assessments by Justice Health and their expressed commitment to providing appropriate patient-centred care within correctional facilities."
8. The affidavits that the applicant seeks to read in connection with ground 3 of the appeal would establish the following: 1. There was a delay of 11 days after admission before the applicant was assessed by any medical practitioner. He received only one of his three prescribed medications during that interval. He was not seen by a doctor for the purpose of assessment with respect to aged care until 9 November 2021, three weeks after admission. The assessment did not result in him being moved from an ordinary prison cell to a facility suitable for the reasonable care of an elderly man suffering from the frailties and medical conditions. 2. The applicant has been able to shower only once every 10 days while in prison due to his justifiable fear of falling in the shower facilities that have been made available to him. The necessity for showering to maintain personal hygiene is self-evident in relation to aged care, particularly for a man who has a history of urinary tract infections. The prominent risk that an elderly person, will fall while showering, is equally obvious and has particular relevance to the applicant. 3. The applicant has not been moved to either the Kevin Waller Unit or the Aged Care and Rehabilitation Unit for any part of his imprisonment, including the several weeks of his convalescence following the operation to his left leg on 8 December 2021.
9. The evidence before her Honour showed that the Kevin Waller Unit has 26 beds and that at the date of the sentence proceeding, they were all occupied. The Crown has not sought to challenge or rebut the applicant's affidavits. There is no evidence of what assessment Justice Health has made of the applicant's needs but if he has been assessed as ineligible for any higher level of care than placement in a mainstream cell without a shower that he can safely use, then the criteria being applied must constitute, of themselves, seriously deficient provision for the welfare of a prisoner in this class. If the applicant's circumstances do qualify him to be housed in a unit where at least low to moderate aged care needs can be met, then the only explanation of him not being so placed must be unavailability. Whether the present unsafe placement arises from the adoption of inappropriate criteria or from lack of resources, the applicant's evidence supports a conclusion that Corrective Services, in conjunction with Justice Health, is not able to provide conditions of imprisonment to the reasonable standard of safety and humanity that her Honour evidently understood would be provided when the sentence was passed.
10. In my view, the part of the evidence tendered by the applicant that establishes the actual conditions of his incarceration "is admissible because it shows that the applicant's treatment in custody has been quite different to that which was suggested in the evidence that was led before the sentencing judge and upon which her Honour acted in imposing the [sentence] which she did". Those words are quoted from the decision of this Court in R v Keir [2004] NSWCCA 106 at [68].
11. In R v Keir, the offender was a 79-year-old man with a severe respiratory illness. In his sentence proceeding evidence was given by the Assistant Director of what was then known as Corrections Health Service. That officer said, in effect, that if the offender needed it he would be accommodated in the gaol hospital or transferred to Prince of Wales Hospital and, in the event that he was not to be detained in the hospital, he would be kept close to medical facilities. The evidence tendered on the application for leave to appeal showed that after his initial assessment the offender had been taken from the gaol hospital to a shared maximum security cell in the general vicinity of the hospital and that, following a deterioration in his health, he had been removed to the Prince of Wales Hospital. The evidence established, amongst other things, the following conditions of his housing whilst in maximum security: "[62] […] (i) the applicant was detained in a cell that was so small that he had to leave his bed in order that his cell mate was able to move; (ii) although there was a toilet in the cell, the showering facilities were about 100 metres away; (iii) the showering facilities had a ceramic floor that became extremely slippery with use from soap used by other prisoners when showering; (iv) the applicant was in fear of falling because of his lack of balance and his medical conditions and because there were no handrails; (v) the applicant had to walk about 100 metres in order to get to a facility to receive his medication; (vi) the applicant was apprehensive about being detained in such circumstances; (vii) the applicant's cell was located several hundred metres from the Long Bay Prison Hospital and was separated from it by a steep hill and a carpark; (viii) the applicant's accommodation within that gaol meant that the type of medical supervision available to him was very different to that which would have been available had he been detained within the hospital; (ix) the monitoring of his own medical condition seems to have been to a considerable extent left up to the applicant to manage."
12. In that case the discrepancy between the conditions of custody that the sentencing judge had been led to expect and the conditions under which the offender was in fact detained was more striking than in the application now before the Court. However, the principle is engaged by the present evidence of a less extreme disparity. The report from Mr Rajiv Anand quoted at [40] above provided assurances of "appropriate patient centred care" based upon "a staged health assessment process". Her Honour was assured that a "comprehensive health care assessment [would be] completed and if required a referral [would] be completed and a decision made in regards to his placement". Her Honour's findings quoted at [41] reflect her reliance upon these statements. It transpires that, in circumstances where the unit suitable for elderly prisoners with low to medium needs is at capacity, the applicant is simply relegated to a mainstream cell that is not equipped in fundamental respects for the management of a frail, unstable man of 84 years.
13. The applicant's affidavits suggest that limited resources are available to Corrective Services for the accommodation of geriatric prisoners who are at an advanced stage of physical and mental decline. In light of that scarcity, it can now be seen to have been counter-productive for Mr Rajiv Anand, on behalf of Justice Health, to have provided his report to her Honour in the aspirational and unrealistic terms that he adopted. If the sentencing judge had been frankly informed that, due to the Kevin Waller unit being at capacity, safe care for an inmate such as the applicant could not be assured, then her Honour would have had proper material upon which to consider a shorter term or an alternative sentencing option. Sentencing judges cannot make sound decisions with respect to geriatric offenders who are frail and/or in serious ill-health unless accurate information about conditions of custody is supplied. If lack of adequate facilities for such prisoners is chronic rather than temporary, then it will be the responsibility of the Director of Public Prosecutions to bring to the attention of the Executive that this shortfall in the capacity of the prison system may lead to sentencing judges being unable to impose otherwise appropriate terms of imprisonment in circumstances such as the present.

Conclusion on ground 3

1. For these reasons, at the conclusion of the hearing of the application for leave, I formed the view that the evidence tendered by the applicant should be received and that, on the basis of it, leave to appeal should be granted, the appeal against sentence should be upheld, the aggregate sentence imposed by her Honour should be quashed and in lieu thereof the applicant should be sentenced to a shorter term, in accordance with the orders that were pronounced by the Court on 1 February 2022.

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