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[2012] WASCA 196
Court of Appeal (WA)
2012-10-08
Pullin JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : COLWELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2012] WASCA 196
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against sentence - Conviction on two counts of stealing $960,000 - s 378(9)(b) of the Criminal Code - Sentence of 30 months' immediate imprisonment - Appellant suffering from disabling genetic disorder - Whether evidence before sentencing judge as to capacity of prison to provide treatment was adequate - Application to adduce additional evidence as to appellant's medical condition - Whether evidence of subsequent events admissible - Relevant principles - Whether different sentence should be imposed in light of additional evidence
Application to adduce additional evidence dismissed
Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68
Brennan v The State of Western Australia [2010] WASCA 19
C, TL v Police [2010] SASC 115
Collins v The State of Western Australia [2007] WASCA 108
El-Jaklh v The Queen [2011] NSWCCA 236
Gulyas v The State of Western Australia [2007] WASCA 263
Hladin v The State of Western Australia [2005] WASCA 50
Kaye v The Queen [2004] WASCA 227
Pollock v The State of Western Australia [2011] WASCA 133
R v Babic [1998] 2 VR 79
R v Munday [1981] 2 NSWLR 177
R v Nguyen [2006] VSCA 184
R v Sopher (1993) 70 A Crim R 570
R v Vachalec [1981] 1 NSWLR 351
Smallbone v The State of Western Australia [2008] WASCA 167
Smith v The Queen [2003] WASCA 235
The State of Western Australia v Bianco [2007] WASCA 197
The State of Western Australia v Hyder [2011] WASCA 256
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilkie v The State of Western Australia [2005] WASCA 156
2 NEWNES JA: The appellant pleaded guilty in the District Court to two counts of stealing money received with a direction, contrary to s 378(9)(b) of the Criminal Code (WA). The offences involved an amount of approximately $960,000 which the appellant stole from two companies he carried out work for as an accountant. On 6 December 2011, the appellant was sentenced to a total effective term of 30 months' immediate imprisonment.
3 The appellant appeals against the sentence. On 11 June 2012, the appellant was granted leave to appeal on ground 2 of the grounds of appeal and the other ground of appeal, ground 1, was referred to the hearing of the appeal.
4 In support of the appeal, the appellant seeks leave to adduce fresh evidence regarding his medical condition, a genetic disorder known as hereditary spastic paraparesis. On 2 August 2012, the court heard argument limited to the appellant's application to adduce that evidence. At the hearing, the appellant was given leave to add a further ground of appeal.
5 For the reasons which follow, I would dismiss the application to adduce the fresh evidence. As the appellant's case was put, it follows that the appeal should be dismissed.
7 In April 2007, the appellant commenced work as the accountant for Ms Mikylie Atherton, a director and the licensee of Community Choice Conveyancing. The appellant was appointed a director of Community Choice Conveyancing and some of the other Community Choice group of companies.
8 It was agreed between Ms Atherton and the appellant that Ms Atherton would transfer funds from Community Choice Conveyancing to the appellant's trust account, with a direction to the appellant to transfer the funds to the Australian Tax Office (ATO).
9 Between 19 July 2007 and 30 December 2009, Ms Atherton made nine fund transfers, totalling $50,550.33, from Community Choice Conveyancing to the appellant's trust account by way of cheque and electronic funds transfers. None of the funds were paid to the ATO by the appellant. They were used by the appellant to prop up his failing financial investments and to make modifications to his home, including the installation of a heated pool (ts 80).
10 The offending came to light after a new accountant appointed by Community Choice Conveyancing discovered that the appellant had taken the money and told the appellant that she would report it to the ATO. The appellant then handed himself in to police, to whom he admitted the offending.
11 When interviewed by police in relation to this matter, the appellant revealed the offending constituting the second count.
12 In July 2007, the directors of Ark Group Enterprises Pty Ltd (Ark Group) appointed the appellant as the company's accountant. The appellant's duties were to complete the monthly payroll, wages, tax summaries and quarterly business activity statements for Ark Group. The arrangement was that upon completion of the business activity statements and wage tax summaries, the appellant would advise a director of Ark Group of the amount owing to the ATO, the State Revenue Office (SRO) and employees' superannuation funds. Ark Group would then make an electronic transfer of the necessary funds to the appellant's trust account with a direction that the funds be transferred to the ATO, the SRO and to employees' superannuation funds, as required.
13 Between 26 September 2007 and 2 February 2010, 21 electronic transfers, amounting to the total sum of $2,499,384.23, were made from Ark Group's bank account to the appellant's trust account pursuant to that arrangement. During that period the appellant made payments totalling $1,590,191.42 to the ATO, SRO and to employee superannuation funds, leaving $909,192.81 which was not paid as directed. The appellant again used that money for his personal investments and home modifications. To hide the defalcations, the appellant provided on each occasion different documentation about the payments to the recipients and to Ark Group respectively.
The medical evidence before the sentencing judge
14 The sentencing judge had before her a report dated 13 December 2010 from the appellant's treating doctor, Professor Kermode, a neurologist. That report followed Professor Kermode's examination of the appellant on 9 November 2010.
15 In his report, Professor Kermode confirmed that the appellant suffered from hereditary spastic paraparesis, which Professor Kermode described as a genetically determined disorder which will progress over time. He said that without appropriate intervention and neurological assistance the appellant was likely to become much more disabled than he was. Professor Kermode observed that the appellant said he had managed to maintain function by performing his own exercises, particularly in a pool. For a five year period he had been assisted in that by a chiropractor. However, over the last few years, due to changes in his personal circumstances, the appellant had been attempting to perform the exercises by himself in a public pool. According to Professor Kermode, for various reasons the appellant had not been able to access appropriate medical intervention and he had therefore caused the appellant to be admitted to Royal Perth Rehabilitation Hospital Shenton Park Campus (Shenton Park) for aggressive physiotherapy and stretching to improve his function. Professor Kermode also noted that a trial of intrathecal Baclofen had been suggested to the appellant approximately ten years previously but had not been followed up. It seems from Professor Kermode's report that a trial of intrathecal Baclofen was intended to be undertaken while the appellant was an inpatient at Shenton Park.
In order for [the appellant] to maintain his health as best as possible, and to therefore remain physically independent, it will be necessary for him to have medical review, regular stretching and physiotherapy, and review of his medical intervention. This may include refilling of an intrathecal Baclofen pump should this be surgically implanted, and hydrotherapy in a physiotherapy pool may be of significant benefit in maintaining [the appellant's] physical function ... Hydrotherapy is often beneficial in this condition, as it can facilitate exercise by allowing some compensation for the patient's impaired balance. It would be usual for an individual with hereditary spastic paraparesis to have a regular neurological review, and typically would also be booked for regular readmission to a rehabilitation hospital for two week blocks of intensive physiotherapy. Without such intervention his disability will progress significantly, and he may be rendered completely wheelchair fast and thus exposed to risk of many medical complications.
...
With respect to the question of imprisonment, if imprisonment does not permit regular stretching physiotherapy, medication and regular specialist review, then this may result in the development of significant and potentially hazardous medical complications resulting in significant morbidity, and by extension possible shortening of life expectancy.
17 The sentencing judge described the offending as very serious. Her Honour referred to the large amounts stolen, the position of trust held by the appellant, and the period over which the offending had occurred, a period of approximately two and a half years.
18 In relation to the appellant's personal circumstances, the sentencing judge noted that the appellant was 48 years of age. He had separated from his wife, to whom he had been married for 13 years, at about the time he was charged with the offences. The appellant has a daughter, then aged 13 years, from the marriage. He had no prior convictions.
19 The sentencing judge noted that the appellant suffered from hereditary spastic paraparesis, which affects the mobility of the appellant's lower limbs and causes muscle spasticity and pain. In relation to Professor Kermode's report, her Honour noted that:
20 Her Honour then turned to the evidence of Dr Carbon, director of Health Services (Health Services) for the Department of Corrective Services (the Department) as to the capacity of the Department to provide the appellant with adequate care while he was in prison. Dr Carbon had read Professor Kermode's report before giving evidence. The sentencing judge referred to Dr Carbon's evidence (relevantly) that:
21 In relation to mitigation, the sentencing judge took into account that the appellant had disclosed the extent of his offending voluntarily to police and had also disclosed his offending in relation to the Ark Group. He had pleaded guilty on the fast track. Her Honour accepted that the appellant had suffered a major depressive illness at the time of his offending which had contributed to the offending and that he was unlikely to re-offend. Her Honour also noted that the appellant was no longer able to work as a chartered accountant, and that he had lost his home, his business and his family (ts 88).
22 The sentencing judge considered that the fact the appellant suffered from a debilitating physical condition did not mean that imprisonment was not an appropriate sentence (ts 88). Her Honour observed that it was the responsibility of the prison authorities to provide appropriate care and treatment and that 'the prison is able to do so, and intends to do so' (ts 88). She continued:
However, I accept that ill-health is still a mitigating factor because it will cause you greater hardship while you are in custody. You will not be able to move around as freely or enjoy exercising as a pastime as other prisoners are able to do. You may also not be able to receive the top end of treatment but only the treatment that is considered to be absolutely necessary.
I note, however, that you have, in the past, also not always made use of the top end of treatment even though it was available at that time, nevertheless I do take into account that your hereditary spastic paraparesis is likely to make it more difficult for you while in prison.(ts 88)
23 Having concluded that a term of immediate imprisonment was the only appropriate sentencing option, her Honour imposed a sentence of 20 months' imprisonment on the first count, and 30 months' imprisonment on the second count, to be served concurrently. The appellant was made eligible for parole.
24 The grounds of appeal (as amended at the hearing) are as follows:
(a) the appellant suffers from hereditary spastic paraparesis;
(b) the court below conducted an enquiry with Dr R Carbon, the Director of Health Services with the Department of Corrective Services (the Department), as to the capacity of the Department to adequately care for a person with the appellant's medical condition;
(c) since his incarceration the Department has demonstrated its inability to care for the appellant;
(d) the continuation of the requirement for the appellant to continue serving a term of immediate imprisonment is causing physical harm to the appellant.
25 On the hearing of the application, senior counsel for the appellant acknowledged that the second ground did not add anything to the third ground, which he sought and obtained leave to add. The first ground was not pressed, it being conceded by the appellant that the total effective sentence was within a sound sentencing discretion. The appeal therefore turns on the third ground (appeal ts 15).
26 The appellant seeks leave to adduce the following further evidence regarding his medical condition:
(I will refer to that evidence collectively as the 'additional evidence'.)
27 The respondent also produced the contemporaneous records of Health Services which recorded interactions between the appellant and staff of Health Services.
The disposition of the application to adduce fresh evidence
28 The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Criminal Appeals Act 2004 (WA), s 39(1). However, the court has broad powers to admit other evidence: s 40(1)(e). In determining whether additional evidence should be admitted the general test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: s 31(4)(a); Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]; The State of Western Australia v Hyder [2011] WASCA 256 [25].
29 It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177,178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].
30 Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69]. The additional evidence was sought to be adduced on that basis.
31 It was submitted on behalf of the appellant that the evidence before the sentencing judge concerning the capacity of the Department to provide appropriate care and treatment for him was in material respects inaccurate or inadequate. It was contended that it was apparent from the additional evidence that the Department does not in fact have the capacity to provide the level of care and treatment expected by the sentencing judge on the basis of the evidence before her, with the result that the appellant's medical condition is deteriorating more rapidly than envisaged and imprisonment is more burdensome on him than expected. Had the true capacity of the Department to provide appropriate care and treatment been before the sentencing judge a different sentence should have been imposed.
32 It was, however, accepted by counsel for the appellant (correctly in my view) that if the expected care and treatment was within the capacity of the prison authorities to provide, it was not sufficient for the appellant to show that it was not in fact being provided to him (appeal ts 20). That, if it were the case, was an administrative matter to be attended to by the relevant authorities: see Vachalec (354).
33 In considering the appellant's submission, it is convenient to turn at once to Professor Kermode's reports of 10 April 2012 and 30 July 2012, which are attached to his affidavit of 31 July 2012.
34 In a report dated 10 April 2012, Professor Kermode reported on the results of his examination of the appellant on 19 March 2012. He found that since his previous examination on 1 November 2011 the appellant's condition had deteriorated to a greater extent than would be expected by the usual course of the disease. Professor Kermode expressed the opinion that if the first four months of the appellant's imprisonment were representative, 'it will take [the appellant] many months, or perhaps even one year, to regain condition following his release from prison'. He recommended consideration of an intrathecal Baclofen pump, but noted that Dr Kriel of the Pain Clinic had expressed the view that it could not be managed while the appellant was in prison. (For reasons I will come to, it appears that that is not the current position of the Pain Clinic.) Professor Kermode also suggested that the appellant have additional physiotherapy, and commented that if the appellant was not in prison he would have advised regular appointments with Shenton Park.
35 Professor Kermode's report of 30 July 2012 followed his examination of the appellant after he was admitted to Sir Charles Gairdner Hospital on 18 July 2012. In the report, Professor Kermode found that the appellant's condition had deteriorated further since the examination on 19 March 2012. He said the appellant had impaired mobility, lower back pain and significant bowel disturbance, with a distended abdomen which had not been present in March 2012.
36 Professor Kermode attributed much of the appellant's deterioration to events which had occurred during his incarceration. In that connection, he said, first, that the amount of stretching and physiotherapy the appellant was receiving, 'and certainly the amount of hydrotherapy which [the appellant] believes is his most useful exercise', had been significantly restricted whilst incarcerated. He noted that the appellant's stretching and exercise had previously been supervised by his private physiotherapist and the appellant had had access to a heated pool on a daily basis. Secondly, if the appellant had not been incarcerated he would have had access to at least one hospital admission to Shenton Park, but because he was a prisoner the hospital had declined to admit him. Thirdly, on 1 November 2011 he (Professor Kermode) had indicated that intrathecal Baclofen should be trialled, but that intervention had since been delayed because the Pain Clinic considered that it could not be managed safely in a patient within the prison system.
37 Professor Kermode also said that delays and obstacles involved in dealing through the prison system made management of the appellant's condition more difficult and meant that treatment plans took longer to achieve.
38 Professor Kermode considered that the deterioration in the appellant's neurological condition since 1 November 2011 'may result in shortening of [the appellant's] life expectancy'. He noted that at the date of the report the appellant was an inpatient at Sir Charles Gairdner Hospital and that 'at present he is in dire need of intervention'.
The adequacy of the evidence before the sentencing judge
39 In support of the application to adduce the additional evidence, the appellant relied on the four specific issues identified in Professor Kermode's report as leading to the deterioration in the appellant's medical condition; namely, lack of access to stretching and physiotherapy (including inpatient treatment at Shenton Park), hydrotherapy, intrathecal Baclofen, and specialist treatment. It was submitted that in respect of these matters the capacity of the Department to provide care and treatment for the appellant, as it was described to the sentencing judge, was materially different to its actual capacity, with the result that the appellant had not received the expected medical care and treatment.
41 I do not accept that the ability of the Department to provide care of this nature for the appellant is materially different to that described in evidence before the sentencing judge. In her evidence, Dr Carbon said that physiotherapy and appropriate stretching could be provided immediately in the prison. Health Services had physiotherapists in-house who treat musculoskeletal problems and while those physiotherapists were not experienced in treating the appellant's specific condition, they could consult the physiotherapists who had been treating him (ts 67). Dr Carbon said that while the appellant was a prisoner it would be possible for him to be admitted to a hospital, including Shenton Park, for a block of treatment. That could occur as early as January 2012 if the appellant was incarcerated in December 2011 (ts 66, 72). She said the prison system would not prevent that.
42 Since his imprisonment, the appellant has been seen regularly by the prison physiotherapist and has received further treatment at Shenton Park. While Shenton Park declined to admit the appellant as an inpatient because he was a prisoner, it made a block of physiotherapy available to him there on an outpatient basis. The appellant was treated there in daily sessions from 23 January 2012 to 2 February 2012, apparently by the physiotherapists who had previously treated him. The prison physiotherapist attended Shenton Park with the appellant, and was given a programme of physiotherapy to continue with the appellant in prison. That involved 1.5 hours per week of physiotherapy and stretching (WAB 52). It was not suggested that the prison physiotherapist does not have the ability to carry out that programme or, indeed, that it has not been carried out.
43 Following the appellant's initial attendance at Shenton Park, staff at Shenton Park prepared an intensive programme of physiotherapy which was made available to the appellant at Shenton Park on various dates in June and July 2012, earlier dates not being available. The appellant was unable to attend a number of the June and July appointments because he was in court on another matter but he attended two appointments in July 2012 before his admission to Sir Charles Gairdner Hospital on 18 July 2012.
44 That treatment is substantially consistent with advice which Dr Fitzclarence, the deputy-director of Health Services, received from a senior physiotherapist at Shenton Park who told her that the appellant's treatment at Shenton Park in the past had involved such 'bursts' of intensive physiotherapy treatment every three months (WAB 51).
45 While it is the case that Shenton Park refused to admit the appellant as an inpatient, that did not come about by reason of any incapacity on the part of the prison authorities but as the result of a decision of the hospital. Dr Carbon's evidence was to the effect that the prison authorities would not impede the appellant's admission to hospital, not that he would necessarily secure admission to a particular hospital. That was obviously a matter for the hospital concerned, not the Department.
46 There is no basis for a conclusion that the capacity of the Department to provide stretching and physiotherapy is materially different to that conveyed to the sentencing judge.
47 Dr Carbon gave evidence before the sentencing judge that there was no hydrotherapy pool within the prison but that it would 'not be impossible' to provide access to hydrotherapy to a prisoner who required it (ts 62). She said it would be difficult to provide access to a public swimming pool and a prisoner would usually be sent to one of the larger hospitals, such as Shenton Park, for that purpose (ts 64). Dr Carbon said she would seek to ascertain what was necessary for good management of the appellant's condition in that respect. If it required three or four visits per week to a hydrotherapy pool that could be arranged (ts 65).
48 The appellant alleged that in fact the Department had not been able to arrange the hydrotherapy he required. In his affidavit of 2 May 2012, the appellant said he had received limited hydrotherapy while in prison. For a period of six to seven weeks from January 2012 he had attended a pool at Rangeview Remand Centre (Rangeview) but it was not heated and the area which was usable for hydrotherapy was too small for the type of exercise the appellant needed to do. The visits to the pool were cancelled at about the end of March 2012 and since that time he had received no regular hydrotherapy. In his affidavit of 30 July 2012, the appellant says he was not given sufficient notice of a visit to Shenton Park on 12 July 2012 and so was not equipped for hydrotherapy on that visit.
49 The extent of the hydrotherapy the appellant has received while in prison is not in dispute. The appellant's access to Riverview was arranged by Health Services. In April 2012, attempts were made by Health Services to arrange sessions at Shenton Park in place of Rangeview. Ultimately some sessions at Shenton Park were able to be arranged for June and July 2012. The appellant was unable to attend the first three sessions because of a court commitment but appears to have attended at least one of the next two sessions before being admitted to Sir Charles Gairdner Hospital on 18 July 2012. The evidence indicates that the delay in obtaining hydrotherapy sessions at Shenton Park was not due to any incapacity on the part of the Department but rather to the demands on the facilities at Shenton Park.
50 The respondent, in any event, takes issue with the significance of the appellant's access to hydrotherapy. It is the case, as the respondent submits, that Professor Kermode has not expressed the view that hydrotherapy is necessary for management of the appellant's condition and he has not prescribed hydrotherapy as essential treatment for the appellant. In his report of 13 December 2010, Professor Kermode said that it 'may' be beneficial. In his report of 30 July 2012, Professor Kermode specifically described hydrotherapy as something which the appellant 'believes is his most useful exercise', without endorsing that view.
51 It is to be borne in mind that the sentencing judge sentenced the appellant on the basis that while in prison he may not be able to receive 'top end' treatment but only treatment that is considered to be 'absolutely necessary.' While the evidence indicates that hydrotherapy may be beneficial, there is no evidence that it is 'absolutely necessary' for management of the appellant's condition.
52 I do not consider that the appellant has established that the information before the sentencing judge in relation to hydrotherapy was inadequate.
53 In his report of 30 July 2012, one of the factors which Professor Kermode considered contributed to the deterioration in the appellant's condition was delay in the trial of intrathecal Baclofen. He attributed the delay to the view of the Pain Clinic that such a trial could not be managed safely in a patient within the prison system.
54 It appears, however, that at least since 17 April 2012 the delay has occurred for other reasons. On 17 April 2012, Dr Kriel of the Pain Clinic wrote to Dr Carbon regarding the outcome of a multi-disciplinary team meeting held at the clinic earlier that day. Dr Kriel said the clinic's position was that although the appellant may well benefit from intrathecal Baclofen, it could only be offered once non-invasive measures including physiotherapy and psychotherapy had been 'optimised and well-established'. Dr Kriel said the clinic would arrange to assess the appellant again and discuss the procedure with him, a discussion 'which the [appellant] declined during his previous visit [to the clinic]'. It is not apparent from his letter that Dr Kriel considered the appellant's imprisonment precluded a trial of intrathecal Baclofen being conducted.
55 It is also, with respect, difficult to understand Professor Kermode's conclusion that the delay in a trial of intrathecal Baclofen had contributed to the deterioration in the appellant's condition. In his report of 30 July 2012, Professor Kermode said that while the appellant was an inpatient at Sir Charles Gairdner Hospital he was to undergo a trial of intrathecal Baclofen to determine whether it was 'helpful'. It is not clear how a delay in the trial could be said to have caused the appellant's condition to deteriorate when it was not known whether intrathecal Baclofen would have a beneficial effect.
56 On the basis of the additional evidence, it could not be concluded that the appellant's incarceration led to any delay in the trial of intrathecal Baclofen. Nor, I would add, does there appear at this stage to be any basis for a conclusion that the delay of the trial has caused the appellant's condition to deteriorate. I note in passing that there is no evidence as to why a trial of intrathecal Baclofen was not conducted some ten years previously when first suggested, or at the end of 2010 when the appellant was an inpatient at Shenton Park.
57 In his report of 30 July 2012, Professor Kermode referred to delays and obstacles involved in dealing through the Department which made management of the appellant's condition more difficult. The proposition, as I understand it, is that the appellant's incarceration has resulted in unexpected difficulty for the appellant in consulting Professor Kermode. That is not supported by the additional evidence.
58 Dr Carbon's evidence before the sentencing judge was to the effect that the appellant would have access as required to Professor Kermode through Professor Kermode's hospital position, if he had one, and if he did not have a hospital position, Health Services would confer with Professor Kermode as to what was needed. If a private appointment was necessary it would be arranged (ts 68 - 69).
59 It is not evident that since the appellant has been in prison the situation has been different to that described by Dr Carbon. It appears from the additional evidence that Dr Carbon telephoned Professor Kermode on 10 January 2012 to arrange an appointment for the appellant. Professor Kermode told her that he would prefer to see the appellant at the Neurology Clinic at Sir Charles Gairdner Hospital rather than in his rooms. He said a referral should be sent to the hospital and he would then triage and make an appointment. A referral was sent to the hospital the following day. The appointment was fixed by the hospital for 19 March 2012 and the appellant saw Professor Kermode that day.
60 On 3 April 2012, Dr Fitzclarence decided to arrange another review of the appellant by Professor Kermode. Despite a number of telephone calls to Professor Kermode's rooms, it was not until 31 May 2012 that Dr Fitzclarence was able to speak to him. It appears that over that time Professor Kermode had taken periods of leave. When Dr Fitzclarence spoke to him, Professor Kermode told her that an appointment would be arranged and in the meantime he gave Dr Fitzclarence certain treatment advice which he asked her to pass on to the appellant. On 16 July 2012, Health Services was advised that an appointment had been made for 30 July 2012. In fact, on 18 July 2012, the appellant was admitted to Sir Charles Gairdner Hospital under Professor Kermode's care.
61 There is nothing in the additional evidence which casts any doubt on the evidence which Dr Carbon gave before the sentencing judge as to the appellant's ability to consult Professor Kermode or which suggests any unexpected limitations on the Department's capacity to provide the appellant with access to Professor Kermode.
62 In his oral submissions, senior counsel for the appellant also placed some weight upon Professor Kermode's finding that there has been greater than expected deterioration in the appellant's medical condition since has been in prison. For the reasons set out above, I do not think it is clear to what extent that deterioration can in fact be attributed to the level of medical care the appellant has received while in prison. In any event, there is nothing in the additional evidence which demonstrates that the deterioration in the appellant's condition has come about because the Department has been unable to provide or facilitate the level of medical care described in evidence before the sentencing judge. And it is implicit in her Honour's sentencing remarks that she envisaged there could be some deterioration in the appellant's medical condition. As mentioned earlier, her Honour expressly noted that while in prison the appellant would not receive the level of treatment that had been available to him in the past and may receive only treatment that was 'absolutely necessary'. I might mention that there is no evidence that any additional treatment Professor Kermode may consider is necessary to prevent deterioration in the appellant's condition is beyond the capacity of the Department to provide or facilitate.
Whether the evidence should be admitted and a different sentence imposed
63 In my view, the additional evidence does not establish any material inadequacy in the evidence before the sentencing judge as to the Department's capacity to provide care and treatment to the appellant. I do not accept that the circumstances of the appellant's confinement are more onerous than those to be expected on the basis of the evidence before her Honour. I would dismiss the application to adduce the additional evidence.
64 In any event, in light of the nature and circumstances of the offending I would not impose a different sentence even if the additional evidence did establish that the capacity of the Department to provide care and treatment for the appellant fell short of that described in evidence before the sentencing judge, as contended by the appellant.
65 The offending was plainly very serious. The appellant was in a position of trust. Over a period of some two and a half years, he stole a total amount of $959,743. Some thirty or more separate transactions were involved and the appellant created a series of false documents to conceal the thefts. The offending did not occur on the spur of the moment or as a result of some impulsive act. It was a sustained and systematic course of dishonesty, largely motivated by the appellant's desire to overcome the effects of failed personal investments. In relation to Ark Group, the theft of some $909,000 has caused great hardship for the principal of the company, as the appellant must have appreciated it would.
66 There were, apart from the appellant's medical condition, the mitigating factors I referred to earlier. However, in cases of this kind where there has been deliberate, systematic and planned criminality over a lengthy period, general deterrence is of primary importance and personal mitigating factors and previous good character will generally be of less weight: Smith v The Queen [2003] WASCA 235 [27] - [28]; Brennan v The State of Western Australia [2010] WASCA 19 [35].
67 Moreover, while the appellant's medical condition was a relevant mitigating factor, it must be borne in mind that it was only one of the factors which fell to be taken into account in determining an appropriate sentence. In Gulyas v The State of Western Australia [2007] WASCA 263 [36], this court said:
Illness may be a mitigating factor where it cannot be treated effectively in prison or where it is of a nature that will result in imprisonment being more onerous for the offender than in the ordinary case. However, it is important to bear in mind what King CJ said in R v Smith (1987) 44 SASR 587, 589 (Cox and O'Loughlin JJ agreeing):
'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.'
68 While ill-health is relevant to the length of any sentence it will usually not prevent the imposition of a custodial sentence if imprisonment is otherwise warranted. An appropriate balance has to be kept between the criminality in question and any health or shortening of life considerations: R v Sopher (1993) 70 A Crim R 570; Kaye v The Queen [2004] WASCA 227 [32].
69 In her sentencing remarks, the sentencing judge said that because of the mitigating factors she had reduced 'considerably' the sentence that would otherwise have been imposed on the appellant. Senior counsel for the appellant conceded that the total effective sentence was 'at the bottom end of the range' (appeal ts 36). That is certainly the case and is borne out by a review of comparable cases. In that connection I have considered a number of other cases, including Brennan; Wilkie v The State of Western Australia [2005] WASCA 156; Hladin v The State of Western Australia [2005] WASCA 50; The State of Western Australia v Bianco [2007] WASCA 197 and Smallbone v The State of Western Australia [2008] WASCA 167. See also Collins v The State of Western Australia [2007] WASCA 108 [18] - [20] and Pollock v The State of Western Australia [2011] WASCA 133. It is unnecessary to canvass those cases.
70 Even taking into account the appellant's medical condition, having regard to the circumstances and nature of the offending and the sentences customarily imposed for such offences I consider the individual sentences, and the total effective sentence of 30 months' immediate imprisonment, to be lenient. Any lesser sentence would be inadequate.
72 I would dismiss the application for leave to adduce the additional evidence.
73 As ground 1 of the grounds of appeal is not pressed (correctly in my view), leave to appeal on that ground must be refused. The remaining grounds of appeal depend upon the application for leave to adduce the additional evidence being granted. It follows from what I have said in respect of that application that the appeal should be dismissed.
(1987) 44 SASR 587