IGLESIAS v REGINA [2006] NSWCCA 261 | Case summary

THURSDAY 20 JULY 2006 IGLESIAS, Isidro v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed on him by Hidden J on 13 October 2004 when he was sentenced for the murder of Joseph Baird-Wallis. He pleaded guilty to the murder which occurred on 24 December 2002. The applicant was sentenced to 15 years imprisonment to commence on 25 December 2002 and to expire on 24 December 2017 with a non-parole period of 11 years to commence on 25 December 2002 and to expire on 24 December 2013. 2 At the time of the offence the applicant was living in Lismore with his five year old son. He was 53 years of age. He had taken his son to Byron Bay in December to spend the Christmas period with his estranged partner Ms Concannon who was the child's mother. During that week he socialised with people at Apex Park, near Main Beach at Byron Bay, where the deceased also socialised. The deceased lived in crude premises in bushland near the Byron Bay Youth Centre. 3 On the afternoon of 24 December 2002, the deceased and the applicant had an argument and the deceased punched the applicant to the face several times. The applicant walked several kilometres to Ms Concannon's house where he obtained a large knife and returned to the deceased's dwelling. The deceased was asleep on a mattress. He was awoken and they again argued. The applicant then stabbed the deceased to the right side of the neck while the deceased was seated and stabbed him to the left side of the ribcage area, the more serious of the two wounds, while the deceased was standing. The applicant fled and threw the knife into bushes. A witness summoned help but the deceased had died by the time the police and ambulance officers arrived. 4 The applicant went to Surfers Paradise where he was arrested on the following afternoon and admitted in an ERISP that he had taken the knife to stab the deceased, with the intention of sending him to hospital but not to kill him. He admitted to being very angry because of the deceased's earlier assault on him. 5 No complaint is made in relation to the sentence imposed having regard to the evidence before his Honour. However, since the applicant was sentenced, symptoms which he experienced before he was sentenced matured to reveal a carcinoma in his lung which has required surgery. 6 The evidence indicates that some time before he was sentenced the applicant had complained of chest pain and had been admitted to Westmead Hospital where he was x-rayed. On 12 October 2004 the x-ray was the subject of a formal report which recommended that he be further examined to exclude the possibility of his having a carcinoma. He was sentenced the following day, following which he was admitted to B Ward in Long Bay Hospital Area 1 and further tests were undertaken. The presence of the cancer was confirmed by a biopsy at the Prince of Wales Hospital about 7 December 2004. On 23 December 2004 he underwent a partial lobectomy to remove the large cell carcinoma from his right lung. The tumour was just over 3 centimetres and its medical classification is a T2NOMO non-small tumour. The evidence before this Court is that about 50% of patients with this type of cancer die within 5 years. However, the applicant has not required ongoing chemotherapy or radiotherapy and his condition is monitored by an x-ray every 6 months. There is no evidence that the tumour has returned or that cancer is present in any other part of his body. His present condition would suggest that the carcinoma has been successfully treated with an expectation of normal life expectancy. The evidence indicates that the applicant continues to complain of pain in parts of his body, particularly in his neck, but there is nothing to suggest that any of the symptoms about which he presently complains are related to any carcinoma or other illness related to the original cancer. 7 Notwithstanding this positive outlook the medical evidence tendered to this Court indicates that the surgery will have had some adverse affect on the applicant's quality of life reflected in a reduction in exercise tolerance, the extent of that reduction being dependent upon on whether or not he continues to smoke. There may also be an underlying lung condition, although the evidence does not confirm this to be the case. Associate Professor Geoff Delaney is of the opinion that if lung cancer recurs the applicant would have a significantly shortened life span and would suffer pain and discomfort during the remainder of his life. In that event he would ultimately require terminal care. 8 The conventional approach of this Court when error is not suggested to have occurred in the original sentence is that evidence of events occurring subsequent to sentence will not be admitted, the appropriateness of the sentence being determined by consideration of the facts before the sentencing judge. As Street CJ said in R v Munday [1981] 2 NSWLR 177 at 178 with the concurrence of Moffitt P and Lee J: "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." 9 See also R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328 at 330. 10 Notwithstanding this general approach this Court has determined that in exceptional circumstances, particularly where a medical condition which existed at the time of sentencing but has later been found to be extremely serious, fresh evidence may be received. That evidence may, in appropriate circumstances, cause this Court to intervene and resentence. The relevant principles were considered in R v Bailey (1988) 35 A Crim R 458 where an applicant said that he had shared needles with other remandees whilst waiting to be sentenced. A subsequent test showed that he was HIV+ although the disease had not been diagnosed at the time the applicant was sentenced. Lee J with whom Maxwell and Yeldham JJ agreed said (at 462): "In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category." 11 In a decision of the Court of Criminal Appeal in South Australia, Smith (1987) 44 SASR 587, there was evidence before the sentencing judge that the applicant had tested positive for the HIV virus. However, King CJ, with whom Cox and O'Loughlin JJ agreed reopened the sentencing proceedings after having determined that events occurring after sentence showed the true significance of facts which were in existence at the time of the sentence was imposed (see R v Ehrenberg (unreported NSWCCA, 14 December 1990)). 12 I am satisfied in the present case that the circumstances justify this Court in receiving the fresh evidence. Although the applicant had complained of symptoms which were clearly related to his carcinoma, his condition had not been diagnosed at the time of sentence. It was only a matter of weeks before the correct diagnosis was made which revealed a significantly adverse medical situation. However, whether, having regard to the facts which are now known, this Court should intervene raises different considerations. 13 Critical to that question is whether or not, by reason of the medical condition of the applicant as it is now understood, his period of incarceration will be more onerous than was appreciated when he was sentenced, justifying any reduction in his non-parole period. This requires consideration of his physical condition, the availability of medical facilities and whether he can be adequately treated within the prison system. 14 In respect of those matters, although the evidence of Associate Professor Delaney indicates that the applicant may suffer some impairment of his capacity to undertake physical exercise, revealed by shortness of breath, his present condition appears stable and his prognosis favourable. The only medical requirement at present is that he be reviewed by a 6 monthly x-ray which can undoubtedly be provided by the prison authorities. Although this has been delayed previously there is no reason to believe appropriate arrangements cannot be made in the future. As his medical history indicates even if a carcinoma was to redevelop, the prison system has a capacity to provide him with effective treatment of a high order. 15 It has also been submitted that the applicant's period in prison may be more onerous by reason of the fact that having experienced a carcinoma and although there are not presently symptoms which suggest that he continues to suffer in that way, he has a fear that he may die in custody. I accept that that fear is genuinely held but, in my opinion, it would not justify a reduction in sentence. 16 It is conceivable that if the applicant does develop a further tumour in his remaining lungs or in other parts of his body that he will require a level of care which cannot be adequately provided within the prison system. However, if this should happen and this unfortunate circumstance come to pass s 160(1) of the Crimes (Administration of Sentences) Act 1999 provides that, although not otherwise eligible for parole, "if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances" the Parole Authority could release him from prison. Beyond this statutory provision there remains the prerogative of mercy. 17 The murder which the applicant committed was premeditated and brutal. The sentencing judge found that he was affected by alcohol and marijuana and there was some degree of provocation. His Honour accepted Associate Professor Hayes' opinions that the applicant's brain had been damaged by substance abuse and that he had borderline intellectual capacity which contributed to his violent behaviour. 18 His Honour also noted that there was some prospect of rehabilitation and that he would have to serve his sentence on protection because of a fear of reprisal by Aboriginal prisoners. The applicant is an immigrant from Cuba and apparently has some difficulty communicating in the English language which will cause further isolation within the prison system. 19 Notwithstanding the subjective matters the offence is objectively serious warranting a substantial term of imprisonment. In my opinion the non-parole period which his Honour provided was at the bottom of the available range. There is no evidence of any gross symptoms arising from his medical condition. I am not persuaded any lesser sentence is required in law. In my opinion this Court should not intervene. 20 It is foreseeable that the applicant's condition may deteriorate in the future in a manner which may justify intervention by this Court but not a favourable determination by the Parole Authority. For that reason I am of the opinion that in this case it would be appropriate to refuse leave to the applicant to bring this application. 21 HULME J: I agree. 22 HALL J: I also agree. 23 McCLELLAN CJ at CL: Accordingly, the order of the court is that leave is refused. **********

IGLESIAS v REGINA

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (32)