R v Wickham

Court of Criminal Appeal (NSW)|2004-06-17|Before: Bell J, Howie J, Hislop J

CITATION : R v Wickham [2004] NSWCCA 193 HEARING DATE(S) : 02/06/2004 JUDGMENT DATE : 17 June 2004

JUDGMENT OF : Bell J at 1; Howie J at 2; Hislop J at 52 DECISION : Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS : Criminal Law and Procedure - Sentencing - relevance of matters of aggravation and mitigation under s 21A of Crimes (Sentencing Procedure) Act - Appeal - fresh evidence on sentence appeal. LEGISLATION CITED : Crimes Act 1900 - s 66F(3) Crimes (Sentencing Procedure) Act 1999 - s 21A R v Kier [2004] NSWCCA 106 R v L (NSWCCA, unreported, 17 June 1996) R v Shankley [2003] NSWCCA 253 R v Johnson [2004] NSWCCA 76 R v Previtera (1997) 94 A Crim R 76 CASES CITED : R v Santamaria (2001) 126 A Crim R 99 Wise v R [1965] Tas SR 196 R v Boyd [1975] VR 168 R v De Simoni (1981) 147 CLR 383 Weininger v The Queen (2003) 212 CLR 629 R v Fordham (1997) 98 A Crim R 359 R v Ashton (2002) 137 A Crim R 73 PARTIES : Regina v Sydney Wickham FILE NUMBER(S) : CCA 60017/04 COUNSEL : G. Rowling - Crown H. Cox - Applicant SOLICITORS : S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0091 FILE NUMBER(S) : LOWER COURT Ducker DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60017/04

BELL J HOWIE J HISLOP J

THURSDAY 17 JUNE 2004 R v SYDNEY WICKHAM Judgment 1 BELL J: I agree with Howie J 2 HOWIE J: This is an application for leave to appeal against sentences imposed upon the applicant by Acting Judge Ducker. The applicant was for trial before his Honour on an indictment containing a number of charges in respect of his alleged sexual assault upon the complainant, a 50 year-old intellectually impaired male, on some date in October or November 2000. On the second day of the trial, the applicant was re-arraigned and pleaded guilty to two counts on the indictment. The Crown accepted the pleas in full satisfaction of the indictment and the jury was discharged. 3 The charges to which the applicant had pleaded guilty and for which he was to be sentenced were offences of having sexual intercourse with the complainant "a person with an intellectual disability, with the intention of taking advantage of the vulnerability of [the complainant] to sexual exploitation, knowing that [the complainant] was a person with an intellectual disability". Each offence was contrary to s 66F(3) of the Crimes Act and carried a maximum penalty of imprisonment for 8 years. 4 His Honour sentenced the applicant on 1 August 2003 as follows:

imprisonment for 2 years 6 months to commence on 11 December 2003 with a non-parole period of 20 months to expire on 10 August 2005.

imprisonment for 4 years to commence on 11 December 2003 with a non-parole period of 3 years to expire on 10 December 2006.

The commencement date of the sentence was derived from the fact that the applicant had been serving sentences for unrelated offences and the non-parole period set for those sentences expired on 11 December 2003. 5 The applicant appealed against those sentences on a single ground of appeal as follows:

His Honour wrongly considered the vulnerability of the victim and the intention of the applicant as aggravating factors under s 21A(2)(l) Crimes (Sentencing Procedure) Act (the Act).

On the day before the hearing a further ground was added:

His Honour failed to take into account the applicant's ill health into account when imposing sentence upon him. 6 The facts can be recited briefly. The complainant was a neighbour of the applicant and mentally disabled as a result of brain damage at birth. A psychiatrist wrote of the complainant that "almost everything about his manner and presentation suggest marked problems with his intellectual functioning". The complainant lived alone in a set of units in Grafton. The applicant was a neighbour in the block of units and at the time of the offences was aged 63. The applicant would sometimes visit the complainant and talk with him or watch television. On occasions the complainant would visit him in his unit. 7 The two offences occurred on the same date in November 2000 in the applicant's unit to which the complainant had been invited to watch television. The applicant asked the complainant to fellate him and the complainant complied. The applicant was naked at the time. This conduct gave rise to the first count for which the applicant was sentenced. The applicant then told the complainant to lie down on some pillows. He applied cream to the complainant's anus and then had intercourse with him. The complainant told police that it was sore but he was too scared to ask him to stop. When he was satisfied, the applicant told the complainant to roll over onto his back and proceeded to fondle the complainant's penis but was unable to arouse him. 8 The applicant participated in a recorded interview with police but denied the offences. 9 The applicant has a criminal record for offences of sexual assault. In 1990 he was sentenced in the Supreme Court for a series of offences involving sexual intercourse with his daughter when she was aged fourteen or fifteen and his son when he was aged between seven and eight years. The offences against the son included both fellatio and anal intercourse. The offences occurred when the applicant was under the strictures of a good behaviour bond for an earlier offence of similar nature on the daughter. Wood J, as he then was, sentenced the applicant to an overall minimum term of 9 years expiring on 15 January 1999 with an additional term of 18 months. 10 The applicant was released to parole on 23 September 1999. That parole period expired on 25 July 2000. The present offences were committed about three months later. On 12 December 2002 Judge O'Reilly sentenced the applicant for sexual assault offences committed between 1971 and 1979 in relation to a niece. He was serving those sentences when he appeared before Judge Ducker. 11 The applicant is in poor health, suffering from chronic asthma and symptoms of ischemic heart disease. He requires a large number of medications to aid him to control, and obtain relief from, his physical illnesses. However, a parole report prepared in January 1999 in respect of the sentence imposed by Wood J noted that his physical condition was similar to that when he was sentenced by Judge Ducker. 12 The applicant had throughout the sentence imposed by Wood J maintained his innocence of those offences. He had refused counselling. The parole report of January 1999 was generally unfavourable which is, no doubt, why he was not released at the end of his minimum term. A report of August 1999 was more hopeful of his ability to cope after release because of counselling the applicant had undertaken in the period between the two reports. However, he still denied his guilt of the offences committed against his children. 13 Judge Ducker also had in evidence a psychological report prepared for the proceedings before Judge O'Reilly. That report noted that the applicant had entered into a relationship with a woman who was aware of his past offending but remained supportive of him. She also has health problems. By the time this report was prepared, 4 October 2002, the applicant had acknowledged his criminal behaviour toward his daughter. He also pleaded guilty to the offences involving his niece. 14 Judge Ducker found that the complainant was a person who could be easily manipulated by a "more worldly experienced and, one has to say, experienced seducer" and he would be "putty" in the applicant's hands. His Honour appropriately described the offence as "despicable". 15 His Honour noted that the applicant's criminal record did not provide him with any claim to leniency. With respect that observation misstated the situation in favour of the applicant. This is a case where the record reveals that the applicant is a sexual predator who, notwithstanding nine years in gaol for sexual offences, at the age of 63 and in poor physical health, was still prepared to seek out and avail himself of an opportunity to take advantage of a vulnerable person who was incapable of resisting him. In those circumstances the protection of the community called for a sentence that, while appropriate to the criminality of the offence, would simply remove the applicant out of society in order to protect vulnerable persons from his sexual appetite. Rehabilitation was of little concern: that will occur only when the applicant's sexual urges subside with further age or more severe ill heath. 16 This is a case where the protection of society, in a real rather than theoretical sense, was a very significant purpose of punishment. This application could be dismissed on the basis that the sentence imposed is probably inadequate to achieve that purpose. I find it difficult to imagine many more serious offences falling within the section and a sentence of 4 years barely, if at all, reflects the objective seriousness of his conduct. In making that observation I note that had the applicant been in a position of authority over the complainant, he would have committed a more serious offence under s 66F(2). If it were open to increase the sentence I would give anxious consideration to taking that course. 17 It is contended that his Honour failed to take into account the applicant's ill health. As I have already indicated, the evidence is that the applicant was in poor health when released to parole. He was suffering during the course of his sentence from severe asthma and angina. Dr Jones, who had attended upon the applicant while in custody and after his release, stated in a report dated 17 October 2002 that the applicant "would suffer significant deterioration in his general medical condition if he were to be returned to custody. 18 It may be accepted that the applicant's physical condition was poor and that prison would be difficult for him in that regard. It is trite that poor physical health and its impact upon the severity of an offender's imprisonment are relevant factors in sentencing. R v Kier [2004] NSWCCA 106 is a recent authority for that proposition if any is needed. But it is clear that ill health does not necessarily require that a sentence be mitigated from that which would otherwise be appropriate: R v L (NSWCCA, unreported, 17 June 1996); Kier at 65. One of the relevant considerations in determining what, if any, weight to give to that factor will be the seriousness of the offence. Another will be whether the medical condition existed at the time of the offence and whether it has deteriorated in the period between the offence and sentence. Common humanity will sometimes require a court to consider a life-threatening physical illness as a matter of mitigation even though the offender was suffering from such an illness at the time of the commission of the offence. However, where as here, the issue is one of the protection of the community, it may be that common humanity for the offender gives way to concern for potential victims. 19 His Honour determined that ill health would not be a mitigating factor by reason of the fact that his condition was present at the time of offending. That will not always be an appropriate attitude to take, especially where the offender has not been to gaol before and his ill health will have significant impact upon the conditions of custody. But in the present case where the applicant's condition was present throughout his earlier sentence, when he was released from custody and when he committed the offence for which he was to be sentenced, I do not believe his Honour erred in not taking it into account either in reducing the sentence or in finding special circumstances. 20 With respect, his Honour was clearly correct in finding that on the material before him, there were no special circumstances and in my opinion, apart from his age and poor health, there would have been good grounds for refusing to fix a parole period. 21 I am firmly of the view that, regardless of any error that may have been made by Judge Ducker, no lesser sentence is warranted and the appeal should be dismissed. However, it appears that Judge Ducker may have erred in the way in which the applicant contends in the first ground of appeal, by taking into account by way of aggravation a factor or factors that were elements of the offences to which the applicant pleaded guilty. 22 When a sentencing court is about to consider matters of aggravation or mitigation under s 21(A) it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. 23 The second limitation is that found in the s 21A(4), which provides:

The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law. 24 This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that

On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76.

25 Similarly the aggravating factor in s 21A(2)(g):

The injury, emotional harm, loss or damage caused by the offence was substantial

would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder: R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Wise v R [1965] Tas SR 196; R v Boyd [1975] VR 168. 26 The second way that the limitation in s 21A(4) can operate is to require the court to disregard a matter of aggravation because to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced: R v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act, such as that the offence was committed in company, that the offender used a weapon, or that the offender was in a position of trust. 27 The court, of course, should bear in mind where the onus of proof lies and the standard of proof that is applicable when determining whether an aggravating factor or a mitigating factor is present. In respect of matters of aggravation proof lies on the prosecution beyond reasonable doubt. In respect of matters of mitigation the onus lies upon the offender on the balance of probabilities. However, due regard should be paid to what was said by the High Court in Weininger v The Queen (2003) 212 CLR 629 as to the significance of the use of the words "known to the court" in a similar Commonwealth provision, those words being used in s 21A(1) in respect of both the aggravating and mitigating factors. It was held at [21] that:

…………the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. 28 His Honour delivered ex tempore remarks on sentence and his observations as to the factors contained in s 21A and the relevance or otherwise of those factors to the sentencing discretion being exercised by him must be read in that light. However, some of his Honour's remarks in that respect are open to criticism and it may be instructive to refer to them briefly when considering the application of s 21A and the first ground of appeal relied upon by the applicant. 29 As Judge Ducker recognised, it was unnecessary for his Honour to refer to all matters set out in s 21A(2) and (3). Some matters will clearly be irrelevant and can be disregarded by the sentencing judge. However, his Honour referred specifically to the fact that the offence did not involve a threat or use of violence, see s 21A(2)(b), or the threat or use of a weapon, s 21A(2)(c). With respect, it was unnecessary for his Honour to refer to a matter of aggravation simply to indicate that it was not present. It does not follow that, because a matter of aggravation is not found to exist, the offence is mitigated, except in those cases where the absence of an aggravating feature appears as a mitigating factor. For example, compare s 21A(2)(n) and s 21A(3)(b). 30 His Honour also undertook an assessment of the emotional harm resulting to the victim and found it to be "significant" and to "continue for sometime beyond the present". Whether this meant that his Honour was making a finding that it was "substantial" for the purpose of s 21A(2)(g) is perhaps a moot point but not one that needs to be determined for present purposes. But, when applying the provisions of s 21A, a court should, in my opinion, avoid making a finding other than in the words of the section otherwise there may be uncertainty as to whether a factor of aggravation or mitigation was, or was not, taken into account. 31 It is also, in my view, unsatisfactory for a court to refer to a factor of aggravation or mitigation without making a finding as to whether it existed or not, or without indicating that no finding was being made as to the presence or absence of that particular factor. For example, his Honour remarked:

As to whether the offence was part of a plan or organised criminal activity it is difficult to say although there are some indications that this experienced sexual predator may have sought to win the confidence and friendship of the victim before moving in to take advantage of him.

With respect, this statement gives no assistance in determining whether his Honour thought that it was an aggravating factor, that the applicant had planned the offence, s 21A(2)(n), or that it was a mitigating factor in that the offence was not planned s 21A(3)(b). In such a situation the preferable course would be for the court to simply indicate that it could make no finding as to whether the offence was planned or not planned and, therefore, that neither an aggravating factor nor a mitigating factor arose in respect of that particular matter. 32 It seems to me patently obvious that his Honour considered that the vulnerability of the victim was an aggravating factor within the terms of s 21A: why else would his Honour mention it when considering whether aggravating or mitigating factors within s 21A were present? In that his Honour took that factor into account as an aggravating feature, he was clearly in breach of the section, because it was an element of the offence charged. Such an error would normally indicate that the sentencing exercise miscarried. But, as I have already indicated, the sentence verged on the inadequate and there was in fact no miscarriage as no lesser sentence is warranted. 33 The applicant sought to rely upon a recent medical report in respect of the physical health of the applicant. It is unsatisfactory that Judge Ducker was asked in August 2003 to sentence the applicant on the basis of a medical report dated October 2002 and this Court is now provided with a report dated April 2004. This an example of what seems to me to be an increasing trend of placing a much more detailed subjective case before this Court than was placed before the sentencing judge. It is a matter of routine that one or more affidavits are placed before this Court on the basis that it may be necessary to resentence the applicant and that those affidavits are not limited to facts occurring since sentence. They frequently contain material that could have, and should have, been placed before the sentencing judge. I doubt that this Court should on an application for leave to appeal routinely receive material that is not fresh, even if it be only for the purpose of re-sentencing. Offenders should be encouraged to present their best case before the sentencing judge, not this Court. However, it is unnecessary to pursue that matter further to determine the present application. 34 However, Ms Cox, who appears for the applicant, sought to have one part of the report received as fresh evidence to be used in determining the appeal rather than for re-sentencing if error were found. The evidence related to the applicant's current state of health and in particular to his hypertension. The summary of the applicant's current physical state in the latest report is as follows:

Mr Wickham is suffering from chronic asthma, ischaemic heart disease, hypertension. His condition is complicated by osteoporosis and hypercholesterolaemia. At the moment he is suffering with dyspnoea on exertion and severe anginal attacks. He has multiple other diseases that are currently under treatment and awaiting treatment. He is awaiting treatment for bilateral cataracts. His hearing aid needs repair. He needs to see a urologist for assessment of his haematuria. He needs to have a nebuliser provided. Prognosis in this case is indeed poor. In the short term, he is at risk of suffering a winter chest infection that can lead to exacerbation of asthma and secondary cardiac problems. His life span and expectancy under the present situation are definitely shortened and sudden death from a fatal arrhythmia, heart attack or stroke is a definite possibility. He is at a very high risk from a cardiac point of view. With the underlying ischaemic heart disease, hypertension and hyperlipidaemia, infarction, embolism and stroke risks are greatly elevated. Faced with an emergency whilst in custody, he may die from delayed medical response time. In case of heart attacks or serious asthmatic episode or acute chest infection, the Corrective system would not be able to cope or respond adequately. The length of term of custody would be directly proportional to increased risk of adverse cardiac events. Indeed he presents as a special case with a long list of very serious medical problems. The risk to his health are clearly higher whilst in custody compared to being in the community. 35 It was submitted that the deterioration in the applicant's health, particularly by reason of the addition of hypertension and repeated chest infections to his ailments present at the time of offending, is such that the Court should receive the report as fresh evidence on the hearing of the appeal, that is not simply on the usual basis as evidence relevant to the court resentencing the applicant on error being shown. It is necessary to say something about the proceedings before Judge Ducker relating to the applicant's medical condition at the time. I have already indicated that the latest report that was placed before his Honour was dated October 2002. 36 On the day of sentencing, 1 August 2003, the applicant appeared before Judge Ducker represented by a solicitor who at the outset of the proceedings indicated that his client had "some sort of turn" on his way to court from prison. The applicant had complained of "left-side weakness" and a nurse at the correctional centre where he was on remand had suggested that he might have suffered a stroke. The investigating police officer was called to give evidence of inquiries he made from the medical officers at the gaol. He was informed that the applicant had complained of left-side weakness but that it was thought to be an old injury. A solicitor, who had been acting for the applicant, gave evidence of his inquiries that revealed that the applicant had made such a complaint and he had a blood pressure of 160 over 108 at the time he saw the nurse at the gaol. 37 The solicitor appearing for the applicant sought an adjournment to have the situation clarified. When his Honour asked what purpose that would serve, the solicitor stated:

Well the reason would be your Honour that if he has a health - if he's had a stroke, for instance, and if that's regarded by the Court, after receiving appropriate medical evidence as a significant escalation of his hitherto health picture, that would influence - that may influence the term of imprisonment, the structure of the term of imprisonment.

There was further discussion between the Bench and the representatives of the applicant and the Crown as to the value of the matter being investigated before sentence was passed. The applicant's solicitor submitted that that it would be relevant consideration in determining the sentence to be imposed that the applicant was suffering from a life threatening illness. 38 The Crown then tendered the brief of evidence before his Honour and there was discussion as to the admissibility of certain parts of it. The applicant's solicitor addressed the court during which he said, after referring to the fact that the applicant was in protective custody:

…….there's also the health aspect, which additionally causes him, the conditions that he's serving under to be onerous.

So I ask your Honour to take those two things into account.

He specifically instructs me that he does not want an adjournment in order to investigate what appears to be on the face of it, seems to be a potentially serious problem, that's as to whether he's suffered a stroke, but no doubt he'll get some sort of treatment in gaol.

The solicitor made further submissions as to the impact of the applicant's poor health and his protective status on the conditions of his custody. He asked his Honour to find that those matters gave rise to special circumstances for the purpose of fixing a non-parole period. 39 Fresh evidence will be allowed in sentence proceedings on a limited basis. In R v Fordham (1997) 98 A Crim R 359, with the concurrence of Hunt CJ at CL and Smart J, I stated:

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: R v Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: R v McKenna (CCA, 16 October 1992,unreported). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: R v Goodwin (1990) 51 A Crim R 328, cf R v De Marco (CCA, 20 November 1995, unreported). There is also power in the court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54. 40 Although the applicant's present medical condition could not have been known to the applicant or those representing him at the time of sentence, there was clearly material that raised the possibility that the applicant had suffered a stroke or that his health may have deteriorated from that revealed in the reports before his Honour. But as is evident from the transcript, the applicant chose to continue with the proceedings and not seek an adjournment. That was an informed decision and, no doubt, reached with a full appreciation of what significance, if any, further evidence of his physical health may have had on the determination of the sentence. In those circumstances it would have to be exceptional for the Court to receive the report now being proffered on behalf of the applicant. 41 On occasions this Court will receive fresh evidence on the basis that it amplifies the material before the sentencing judge, particularly is this so in a case where there was an existing medical condition at the date of sentence but its full implications or ramifications were unknown. In R v Ashton (2002) 137 A Crim R 73, a case involving the mental health of the applicant at the time of sentence, it was stated:

The basis of the application made to this Court is what is said to be fresh evidence relating to the applicant's psychiatric state at the time of sentence. In this regard reliance is placed upon the decisions of this Court in Bailey (1988) 35 A Crim R 458 and R v Ehrenberg (NSWCCA, unreported, 14 December 1990). There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. In Bailey the material related to the applicant having been diagnosed with the AIDS virus, a fact that was unknown at the date of sentence. In Ehrenberg it was the birth of a deformed child to the applicant as a result of complications of her pregnancy. In both cases the fresh material indicated that prison would impact more harshly upon the applicant than was thought to be the case when the applicant was sentenced.

However, this Court must be careful to maintain a principled approach in dealing with appeals before it. The Court should be scrupulous to ensure that there is a proper basis for receiving evidence of events that occurred after sentence where there is no error established in the sentence imposed. In Ehrenberg , the Court emphasised the special and unusual circumstances that would permit such evidence to be received and acted upon in order to reduce an otherwise appropriate sentence. Loveday J, with whom Gleeson CJ agreed, stated:

It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177). Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant. 42 The applicant in that case had been ordered to serve a sentence by way of periodic detention. The fresh evidence placed before this Court concerned the mental disorder suffered by the applicant that had resulted in him experiencing such a phobia for imprisonment that he had never once reported for periodic detention after the imposition of the sentence. The applicant in effect simply refused to acknowledge that there was an outstanding sentence imposed upon him or that there were appeal proceedings in this Court. The fresh evidence was admitted because a close scrutiny of the sentencing proceedings revealed manifestations of his mental state although it was unnoticed by the sentencing judge or those appearing for the applicant. It was a case on the boarder line of the discretion but one that was truly exceptional, not the least because no one in the criminal justice system had done anything to enforce the sentence or to bring on the appeal for over three years. 43 In allowing the appeal, it was stated:

If the court had been aware, of what I accept was probably the case, that the applicant had a psychiatric illness which would manifest itself as it has since sentence, then that would have been a matter which might have affected the sentence to be imposed. For example, one matter that might have been given less weight was the need for general deterrence. In any event the sentencing court would have taken into account the impact, or possible impact, of a sentence upon the applicant, even one of periodic detention. Clearly, if the court had been aware that the threat of imprisonment was going to result in the deterioration of the applicant's mental state such as appears to have occurred, it would have had to take into account the effect of the imprisonment upon him when determining whether such a sentence was warranted in all the circumstances of the case. In my view had the material been available to the sentencing court, it could have been regarded as having a real bearing on the sentence to be imposed, Goodwin (1990) 51 A Crim R 328. I would have thought that in all the circumstances it might have made the difference between periodic detention and community service. 44 Another exceptional case where post-sentence evidence has been received by the Court is R v Kier [2004] NSWCCA 106. In that case the sentencing judge had before her an offender, aged 79, who had systematically defrauded the Commonwealth over a number of years. At the time of sentencing he was in very poor physical health. There were concerns that, if he were imprisoned, his condition including "cardiac, respiratory and diabetic instability" would prove life threatening. The sentencing judge received a considerable amount of evidence, both written and orally, as to the needs of the offender and what could be provided to him in prison. Her Honour ultimately imposed a gaol sentence but on terms as to the applicant's placement in gaol and the treatment to be made available to him, including special transport to convey him to prison. 45 On the hearing of the appeal, this Court received, over objection by the Crown, evidence as to the conditions of the applicant's custody since sentence was imposed. The Court stated:

[68]…………..We are satisfied that the evidence as to the circumstances, and the conditions in which the applicant was detained, was capable of having had a real bearing upon the exercise of the sentencing discretion. Exceptionally, the evidence is admissible: Regina v. Goodwin (1990) 51 A. Crim. R. 328; Regina v. Bradley [2004] NSWCCA 88; Wilson v. Department of Corrective Services (1997) 93 A. Crim. R. 301. It 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 sentences which she did.

[69] We accept that normally evidence of matters occurring after the passing of sentence is not admissible on a sentence appeal unless the court, on other grounds, upholds the appeal. In such a case that evidence may well be admissible at the point at which the court proceeds to consider for itself matters relevant to the fresh sentence to be imposed. But there has long been an exception, of which Regina v. Jenkins (CCA, unreported 14 July 1993) is but one example, that evidence will be received of the circumstances under which an offender is required to serve his or her sentence, if those circumstances demonstrate that the sentence was to be served in conditions which were much more onerous than, or were sufficiently different in nature from, those which were expected to flow from the sentencing order made by the sentencing judge.

70 In Jenkins (supra), the leading judgment was delivered by Smart, J. with whom Hunt, CJ. at CL and Studdert, J. agreed. At p.10, Smart, J. said:-

''It is relevant when considering the term of punishment to be served, to have regard to the conditions under which the sentence will be served: Regina v. Cartwright (1989) 17 NSWLR 243 at 251 and 255 and cases there cited. Having regard to her effective isolation and her daily viewing of the scene of the events she has already spent some nine months in conditions of considerable severity which the trial judge sought to avoid. He did not regard such severity as appropriate, and he clearly imposed the sentence which he did in the expectation that effect would be given to his recommendation. It now appears that for one reason or another it is unlikely that the recommendation will be given effect to. In those circumstances, it is appropriate for the court to re-assess the sentence which he imposed.''

71 Those remarks illustrate the limited extent of the exception to the general rule that evidence of events occurring post-sentence is not admissible. Evidence of matters occurring subsequent to sentence is admissible however if it is capable of demonstrating that the very basis upon which the sentencing discretion was exercised has been undermined or thwarted. The exception is however strictly circumscribed and should generally be limited to cases of the kind to which we have referred.

72 A number of cases have come before the courts in which at the time of sentence, the offender was suffering from a mental condition or an illness although that fact was not known at the time. Where that condition was of significant materiality to the sentence imposed, as distinct from being merely a matter to which particular regard needed to be paid administratively by the Corrective Services authorities, courts have allowed an applicant to successfully challenge the sentence on appeal. Those cases are, like the present one, however, wholly exceptional.

73 In Regina v. Ann Lillian Price (CCA, unreported 2 September 1993), the court referred to the responsibility of the Correctional Services system to manage prisoners in a way which minimises any harm which they might sustain as a result of abnormal psychological or medical conditions. The court referred to Munday (supra) in which Street, CJ. said that:

''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.''

74 The court in Price cited with apparent approval the following observations of Clarke, JA. in Regina v. Scullion (CCA, unreported 15 July 1992 at 2): ''The rule is not, however, an absolute one, for in exceptional circumstances, the courts have had regard to events which have occurred since sentencing in considering the question whether an appeal against a sentencing order should be allowed. Nonetheless, the courts which have taken post-sentencing facts into account have been at pains to make it clear that it will only be in rare and exceptional cases that the courts would be entitled to have regard to those facts.'' 46 It is submitted on behalf of the applicant that Judge Ducker could not have had sufficient regard to the fact that the applicant's medical condition was life threatening if he were returned to custody. I do not accept that this contention is made out. His Honour simply determined that, in the circumstances of this particular case, the effect of custody upon the applicant's medical condition was not of significant mitigation to warrant a lesser sentence than was objectively called for in light of the fact that the applicant's medical condition was in existence at the time he committed the offence. I do not believe that it was an error to take that approach. 47 I am not persuaded that an offender must always receive a reduction in sentence only because of the effect of incarceration upon his physical or mental health or because prison will be more onerous for him by reason of some personal circumstance, particularly where that circumstance was present at the time he committed the offence. Much will depend upon the seriousness of the offence, the risk the offender poses to the community, and the need for the sentence to reflect denunciation and deterrence, both general and personal. 48 Ms Cox relied upon other instances of an appellate court taking into account facts and circumstances arising after sentence in order to elaborate or elucidate the material before the sentencing judge. One of the decisions to which particular reference was made is R v Santamaria (2001) 126 A Crim R 99, but that is merely an application of decided principle to the facts of a particular case. 49 In my opinion, having regard to the medical evidence that was before Judge Ducker and the exceptional nature of this court's discretion to receive post-sentence evidence, the tender of the new medical report should be rejected. There was at the date of sentence evidence of the applicant's poor physical health and the risks that incarceration posed to him because of it. The legal representative of the applicant placed considerable reliance upon it because there was little else that might mitigate the sentence. The applicant did not attempt to place up-dated medical evidence before his Honour and declined to seek an adjournment for that purpose. The new material does not seem to me to give rise to that "rare and exceptional" occasion justifying the reception of evidence of events and circumstances arising after sentence. 50 I have already expressed my view that the sentence was a very lenient one having regard to the nature of the offence and the applicant's criminal antecedents. Any lesser period of imprisonment would reduce the sentence to an inadequate denunciation of his criminal conduct. In my view the facts and circumstances of this particular case do not warrant the exceptional leniency of reducing the sentence by reason only of his current medical condition or the impact of imprisonment upon it. 51 I propose that the application for leave to appeal be granted but the appeal be dismissed. 52 HISLOP J: I agree with Howie J. **********

Last Modified: 06/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Cases Cited (8)