Evidence previously before the Court concerning the respondent's health
46The relevance of a respondent's deteriorating health was considered a factor relevant to the exercise of the residual discretion in Director of Public Prosecutions v Karazisis, supra:
"The Court will be reluctant to disturb that situation...where there has been a significant deterioration in the respondent's health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal." (at [108])
47The evidence previously before this Court included the affidavits of Ms Janet Witmer, solicitor for the respondent, and Mrs Sharon Reeves, the respondent's wife. Annexed to Ms Witmer's affidavit were letters from Dr Baguley, Medical Officer at Junee Correctional Centre dated 8 June 2012, and Dr Badami, Staff Specialist dated 23 March 2012.
48Dr Baguley wrote that the respondent:
"...has renal failure and he is going to need renal dialysis very soon. He will need to be seen very regularly at Prince of Wales Hospital in Randwick in preparation for this, and then ongoingly for dialysis at least twice weekly. To this end he needs to be placed in a metropolitan gaol for such access and treatment to occur. Without this treatment he will die. It cannot occur in the country".
49The respondent's affidavit affirmed 17 July 2012 indicated that he had been at Long Bay since June 2012. However, according to his evidence he had, as at the date of his affidavit, not received treatment from the renal clinic at Prince of Wales Hospital, as had been recommended.
50Dr Badami recorded that the respondent may need dialysis in the future and that he has other "vascular risk factors such as hypertension and Hypercholesterolaemia". As a result, "his prognosis will depend on his stability".
51On 1 August 2012, the Nursing Unit Manager at Long Bay indicated in a letter that diabetic diets were unavailable at Long Bay, but that she would ask for the respondent to be reviewed to receive a "renal diet" (Annexure "D" to Affidavit of Ms Gabrielle Drennan sworn 9 August 2012). The respondent submitted that it may be inferred from that at least as at 1 August 2012, the respondent was not on an appropriate diet while in custody, despite his multiple medical conditions: at [50].
52On 3 August 2012, Dr Ette, Associate Clinical Director Primary & Women's Health with Justice Health, wrote to the Director of Public Prosecutions. In that letter, Dr Ette noted that the respondent "has Micro and Macro vascular disease, Chronic Kidney Disease, Type 2 Diabetes, Hypertension, Hypercholesterolaemia, Benign prostatic Hypertrophy and Depression".
Up-to-date evidence concerning the respondent's health
53Ms Drennan's affidavit sworn 20 May 2014 annexed a letter from Justice Health regarding suitable treatment options available for the respondent, should he return to custody.
54Ms Witmer's affidavit of 8 April 2014 annexed a report of Dr Grant Luxton, specialist in renal medicine, dated 27 February 2014. Dr Luxton observed that the respondent's current diagnosis is end-stage kidney disease (CKD stage V) due to diabetic nephropathy. Although the respondent was due to start dialysis in the first months of 2014, as a result of his progressive deterioration and severe symptoms of kidney failure, Dr Luxton directed that he commence haemodialysis on 6 February 2014. Dr Luxton noted that "although he has improved from the time of his admission he is still not very well with lethargy, fatigue and depressed mood".
55The respondent currently undergoes haemodialysis three days a week. He has also been prescribed a number of medications for high blood pressure, gout, elevated cholesterol, depression, anaemia and calcium balance as well as insulin injections for his diabetes. Dr Luxton considered that his prognosis "is guarded". Although his symptoms should slowly improve, it is likely that symptoms of fatigue and reduced exercise capacity will persist. Dr Luxton noted that the life expectancy of patients on dialysis is "significantly reduced, more so in people with diabetes due to a high incidence of heart disease, stroke and infection". Dr Luxton further advised that the respondent would require surgery in April/May 2014.
56Dr Luxton was asked to address a number of questions and provided answers in his report as follows:
"1. Would custody have had an impact on his condition and the timing and nature of his treatment?
Yes - there was some delay in him being referred to the renal clinic and earlier referral could have allowed us to initiate treatment that may have delayed progression of his kidney disease. There were also problems in arranging timely follow-up and in the transmission and activation of recommended changes in treatment. There were problems in him receiving adequate treatment of his blood pressure and receiving an appropriate diet.
2. At what percentage is dialysis usually commenced?
Dialysis is usually initiated when the patient has significant symptoms which is usually around 10% or less of kidney function. He did not need to start dialysis when in custody however he was discharged into the community without follow-up plans and this may have contributed to his emergency presentation and urgent initiation of dialysis.
3. What percentage of kidney function did [he] have when he went on dialysis?
This was 3% - dangerously low. It was 7% when last checked in November 2013.
4. Differences in treatment in custody and not in custody?
Both modalities of dialysis (haemodialysis and peritoneal dialysis) are available in custody. There is a haemodialysis unit at Long Bay. The dialysis provision is the same as outside in terms of machinery and nursing staff. However access to renal trained medical staff is not available and there have been difficulty in dialysis patients accessing appropriate diets and provision of medications at the correct times. Changes in treatment tend to be slower due to the need to communicate with the renal unit at [Prince of Wales].
5. Is surgery required for home dialysis?
Yes - he will need abdominal surgery for placement of a peritoneal dialysis catheter. This has been deferred till he is more stable - probably in the next two months."
57Dr Olav Nielssen, psychiatrist, interviewed the respondent on 17 March 2014. He had previously provided reports dated 14 June 2011 and 31 July 2012. Dr Nielssen noted the respondent's history of becoming more depressed since being transferred to the COSP centre, despite being able to go out during the day and attend to his own health care. The respondent also expressed "what seemed to be realistic concerns" about access to an adequate standard of treatment if he were to return to full time custody. Further, that his preferred method of dialysis was peritoneal dialysis, but that he was not eligible for that method while living at the COSP centre, as it required having an en suite bathroom that was not shared with another person.
58On examination, Dr Nielssen observed that there were no signs of neurological disorder and his cognitive function seemed to be unimpaired, but that his underlying mood was assessed to be anxious and depressed from his demeanour and the quality of his responses.
59Dr Nielssen's opinion was that the respondent was experiencing a relapse of chronic depressive illness. Factors contributing to this recurrence "include his disappointment at the lack of support from his family after his release, the progression of his kidney disease, the current circumstances of his detention and his anxiety about his future".
60Dr Nielssen noted that the respondent had continued to take the antidepressant sertraline (Zoloft) at the minimum dose of 50mg per day, prescribed by his general practitioner at Little Bay. The respondent told Dr Nielssen that he had considered asking to have the dose increased as he was aware of the return of symptoms of depression in the form of increased anxiety, lack of sleep, low energy and pessimism about the future.
61Since the hearing of the first appeal, the respondent's wife visited him every three or four weeks whilst he was at a metropolitan gaol. During these visits she "noticed his worsening bad health", including being more depressed and anxious: affidavit of Sharon Reeves affirmed 17 April 2014.
62In his affidavit affirmed on 2 April 2014 the respondent stated that he was anxious about returning to custody as he was concerned about his medical condition and frustrated by difficulties he experienced in getting timely attention whilst he was in custody.
63The respondent submitted that the "combined impact" of the medical evidence available on the remittal hearing:
"...is that gaol has had a crushing impact on the respondent, his mental and physical health have declined to a substantial extent during the period of his sentence and particularly since the hearing of the CCA appeal." (at [53])
64In R v Hansel [2004] NSWCCA 436, Sully J (with whom Hidden and Howie JJ agreed) observed in respect of a man suffering from lymphoma, for which he had received chemotherapy, and other medical conditions, "no appellate Court could lightly send now into full-time custody a person with those health conditions and problems": at [44]. The Court proceeded to apply the residual discretion, observing that the prospect of an inadequate sentence "cannot be allowed to overwhelm what justice requires in the particular case": at [45]. Similarly, in R v DKL [2013] NSWCCA 233 this Court exercised the residual discretion on the basis of deterioration to the respondent's mental and physical health since the commencement of his incarceration, notwithstanding the manifest inadequacy of the sentence imposed.