Dudgeon v R

Judgment 1BEAZLEY P: The applicant in this matter has terminal cancer and, on the latest information available to the Court, has a very short time to live. Fullerton J, whose draft reasons I have had the opportunity of reading and with which I agree, has found that the applicant's medical condition pre-dated his sentence. The Court, therefore, was entitled to receive fresh evidence relating to his medical condition and is empowered to re-sentence the applicant on the medical evidence now before the Court. 2As Fullerton J has explained in her judgment, on 13 May 2013, the applicant pleaded guilty of two counts of aggravated break, enter and steal contrary to the Crimes Act 1900 in the District Court. The offences were committed whilst the applicant was on parole for a series of armed robberies. The offences were, correctly, in my opinion, assessed by the sentencing judge as being above the mid-range of objective seriousness. 3The sentencing judge imposed a total effective sentence of 7 years with a non-parole period of 5 years to date from 8 November 2012, the day of his arrest. Under the sentence imposed by the sentencing judge, the first date on which the applicant will be eligible for release is 7 November 2017. Fullerton J has described that sentence as "very lenient". 4Giving its leniency, in normal circumstances there would have been no basis for this Court to interfere with the sentence imposed by the sentencing judge. The conduct involved in the offending was serious and the offences were committed whilst on parole for armed robbery offences. The applicant has a longstanding criminal record and a history of re-offending. However, the applicant's circumstances as they are now presented to the Court in the further evidence reveal that he is seriously and terminally ill and he may not survive into the new year. His treatment in his present custodial arrangements is far from optimum. 5This has presented the Court with a difficult sentencing task. Had the sentencing task involved a free standing discretion, the Court may well have considered that it was appropriate that the applicant be immediately released to parole. However, the Court is required to sentence the applicant in accordance with proper sentencing principles. Whilst that task is appropriately evaluative, it does not entitle the Court to disregard, amongst other things, the seriousness of the offending conduct, including that it was committed whilst the applicant was on bail. Fullerton J's remarks at [25]-[26] give expression to this. For the reasons her Honour gives, I consider that the sentence she proposes is appropriate. 6The views that the Court has expressed through Fullerton J's reasons does not preclude the applicant making an application to the Parole Board for his immediate release. Although the Parole Board did not see fit to release the applicant on his last application, his medical condition has since deteriorated. Fullerton J has helpfully set out by way of schedules to her judgment, a chronology and a summary of the material that was before the Court outlining the applicant's accommodation, treatment, care and support should he be released. 7Should the applicant make a further application to the Parole Board, it might be presumed that the Parole Board would have before it material that was up to date at that time as to the applicant's condition and circumstances. However, Fullerton J's schedules could well be of considerable assistance and consideration should be given to providing the judgment and the schedules to the Parole Board, should a further application be made. 8HIDDEN J: I agree with Fullerton J. 9FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 13 May 2013 after pleading guilty in the Local Court to two counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. A further offence of goods in custody was taken into account on a Form 1 on the first of those counts. 10After allowing a discount of 25 per cent for his pleas of guilty, and after a finding of special circumstances and an order of partial accumulation of twelve months, the applicant was sentenced to an effective sentence of 7 years with a non-parole period of 5 years to date from 8 November 2012, the date of his arrest. He will be first eligible for release to parole on 7 November 2017. 11The first of the two offences of aggravated break, enter and steal was committed on 18 October 2012. The feature of aggravation in respect of that offending was constituted by the applicant tying the victim's wrists with a belt and ankles with a power cord and placing a bag over his head after entering his home through a window armed with a knife. Thereafter the applicant demanded money and threatened to slit the throats of the victim's housemates if they returned home. He then ransacked the house, looking for money and other valuables, and stole a large amount of property including $950 in cash together with jewellery and electronic goods to the value of $6,000. 12The second offence was committed on 7 November 2012, again when the applicant entered the victim's home through a window. The victim of that offence returned home to find the applicant endeavouring to remove a portable safe. He was also armed with a knife on that occasion which he used to threaten the victim. The feature of aggravation in respect of that count was the infliction of physical violence when, in response to the victim calling out to neighbours to help, the applicant punched him to the face causing swelling and lacerations. 13The offence on the Form 1 concerned the applicant's possession of various goods suspected of being stolen, including a Pentax camera, camera lenses and a flash attachment. 14The offences were assessed by the sentencing judge as being slightly above the mid range of objective seriousness. 15Both offences were committed whist the applicant was on parole for a series of armed robberies for which he received an effective sentence of 9 years with a non-parole period of 6 years in 2006. He was released to parole on 20 December 2011. The State Parole Authority revoked his parole on 29 November 2012. The balance of parole expired on 26 October 2014. Given the date of commencement of the sentence imposed on the first count the balance of parole was served wholly concurrently with the effective sentence imposed for both counts. 16The applicant gave evidence on sentence and relied upon a report from Laura Durkin, a forensic psychologist. It was on the basis of what his Honour described as Ms Durkin's detailed, objective and insightful clinical examination of the applicant that he made the finding of special circumstances, despite the applicant's lengthy criminal history and poor response to supervision in the past. 17The following features of the applicant's subjective case were established by the evidence led on sentence. 18The applicant was aged 39 at time of sentence. He had an extensive criminal record including lengthy periods of imprisonment, in addition to the armed robberies earlier referred to. The sentencing judge noted that since the age of 25 the applicant has been in continuous custody other than for short periods of time invariably in circumstances where he came to adverse notice. 19The applicant has a chronic drug addiction extending from his mid-teens to the time of his offending. His past offending and the offending the subject of the sentence proceedings is drug-related. On his release from custody in December 2011 it would appear the applicant was abstinent for a period of time but that he struggled to adjust in the immediate post-release phase to community life which was complicated by his chronic depression and anxiety. The sentencing judge accepted he has a history of a depressive illness for which he has been medicated from time to time. The applicant's various and, it would seem, valiant attempts at extricating himself from drug abuse in the past have been compromised by what the reporting psychologist described as "numerous psychosocial stressors". 20It would appear from the sentencing remarks that the sentencing judge was impressed by the applicant, and acceded to the applicant's request that he be given "one last chance" in his determination to avoid reverting to drugs by affording him some leniency in the fixing of sentence. His Honour was apparently satisfied that over the six months of the applicant's most recent remand he had taken concerted and sustained steps to remain abstinent from drugs, including electing to be housed on a limited association basis to avoid the risk of negative interaction with other prisoners. 21The sole ground of appeal concerns what I am satisfied on the evidence led on the appeal, supplemented by evidence obtained at the Court's request after the hearing of the appeal, is the fact that the applicant is suffering from terminal cancer and is not expected to survive beyond a period measured in months as at the date of publication of these sentencing reasons. I am also satisfied, contrary to the Crown's submissions on the appeal, that his terminal illness was extant as at the date of sentence but that it was undiagnosed at that time and remained undiagnosed until 24 October 2013, that is, five months after he was sentenced. 22For ease of reference I have attached a chronology of the accused's various dealings with Justice Health and other specialist physicians from 23 December 2012 to the most current report from a treating specialist in September 2014 which substantiates that finding (Schedule 1 to this judgment). 23I am also satisfied, that the jurisdiction of this Court is properly invoked and it was appropriate to receive the full complement of the applicant's medical records as fresh evidence on the appeal (including the materials furnished after the hearing of the appeal) and to reopen the question of an appropriate sentence in light of that evidence, including evidence bearing upon the circumstances which will make the applicant's continued incarceration more burdensome than would be the case were he in good health (see Iglesias v R [2006] NSWCCA 261 at [1]-[13]). Were I not persuaded that the applicant's terminal illness predated the date of sentencing, this Court would have no jurisdiction to receive fresh evidence bearing on his medical condition or to move to re-sentence on the basis of that evidence. Where a terminal illness is diagnosed after sentence and cannot be shown on the available medical evidence to have been extant at the date of sentence, the custodial conditions a prisoner in that situation may have to endure is a matter for the executive (see R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at [124]-[126]). 24Affording full weight to the evidence relied upon by the applicant in support of his immediate release (a summary of the evidence is annexed as Schedule 2 to these reasons), the remaining and critical question in exercising the re-sentencing discretion is whether sentences could properly be imposed for each of the two counts of aggravated break, enter and steal which would have the practical effect of allowing for the applicant's immediate release from custody either unconditionally or on parole, that is, by the imposition of sentence with a non-parole period of 2 years to date from 8 November 2012 or under another sentencing option. (I note that because a standard non-parole period attaches to an offence under s 112(2), it is not open to impose a fixed term of imprisonment.) 25The difficulty that I am confronted with in considering that question is that, given that the balance of the unexpired term of the previous sentence for the armed robberies expired on 16 October 2014, any sentence structured in that way will mean the applicant will have served, to date, a period of less than two months attributed directly to the break, enter and steal offences. 26In light of the applicant's terminal illness and the conditions of his custody, and other considerations pertaining to his need for palliative care, I am satisfied that the already very lenient sentence imposed by the sentencing judge should be moderated by a degree. However, given the gravity of his offending, replete as it was with the statutory features of aggravation under s 112(2), and the fact that the offences were committed whilst on parole for armed robberies, I am constrained to impose a sentence the effect of which will not result in the applicant's immediate release. 27The orders I propose are as follows: (1)The sentences imposed in the District Court on 13 May 2013 are quashed. (2)In lieu thereof and after taking into account the offences on the Form 1 on the first count the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years to date from 8 November 2012 and, on the second count, to imprisonment for a period of 4 years with a non-parole period of 2 years to date from 8 November 2013. (3)The applicant is eligible to be considered for release to parole on 7 November 2015. 28For my part, I would wish also to note (as reflected in Schedule 1) that on 24 April 2014 the applicant applied to the State Parole Authority for a parole order to be issued pursuant to s 160 of the Crimes (Administration of Sentences) Act 1999 (NSW). That section expressly allows for a grant of parole where an offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional or extenuating circumstances. The medical evidence current as at that date was provided to the Authority as it was to this Court. 29On 15 July 2014 the Parole Board refused to exercise the statutory power under s 160. It gave no reasons for so doing. 30On enquiring of the applicant's solicitors, the Court has been informed that as at 24 November 2014 no further application has been made to the State Parole Authority based upon the updated medical reports the Court invited the applicant to submit for the Court's further consideration after judgment was reserved in August 2014, which included a revised estimate of the applicant's life expectancy. Were a further application to be made, I consider it appropriate for the decision of this Court, and the annexed schedules, to be provided to the Parole Authority for their further consideration.