26 The applicant's submission is that this is one of those rare cases where the department is not able to provide the treatment required by the applicant. That treatment would be available to him were he not in custody. In the absence of appropriate treatment he is in chronic pain and additionally is exposed to the risk of exacerbation of what is, on one view, an underlying infection in his leg with possible drastic complications which might include amputation of the limb.
27 At the time of the original listing of the appeal on 6 October 2000, the fresh evidence available was evidence from the applicant and his mother to the effect that treatment had not been available in the prison system as the sentencing judge had understood that it would be; and expert medical evidence that such conservative treatment as was available in prison had not been successful in treating the applicant's leg; the only alternative suggested by the prison medical officer was amputation; but there was available in the private health system (but not in the public health system) a particular surgical procedure proposed by orthopaedic specialist Dr Tim O'Carrigan which offered a good prospect of relieving the applicant's condition.
28 Shortly before the October hearing date, the Crown obtained information suggesting that suitable treatment in the private system was available to the applicant whilst in custody provided that the applicant was able to meet both the costs of the operation and the cost of the necessary Corrective Services escorts at the time of the operation and throughout a lengthy period of post operative treatment. The applicant proposed to adduce evidence from his mother that she was able and willing to meet the costs of the operation but could not afford to pay the additional costs of prison escorts. The Crown was granted an adjournment in order to obtain further material on that issue. The matter was subsequently listed for hearing on 21 February 2001 but was unable to proceed at that time because both parties were still engaged in investigating the medical condition - the treatment options available, the time which must elapse before treatment could be carried out, and the cost. The matter was further adjourned until11 May 2001. In the meantime, both parties have obtained clarifying reports from the orthopaedic specialist originally consulted by the applicant, Dr Tim O'Carrigan; from Dr Richard Matthews, the Chief Executive Officer of the Corrective Services Department; and from Dr Brett Courtenay, an orthopaedic specialist who has proposed to the Corrective Services authorities a different form of surgical treatment which would not be seriously hindered were the applicant still a prisoner serving a sentence at the time when the treatment was to be carried out.
29 The medical experts agree that there is established non-union of the fracture in the distal one-third of the right tibia. It is uncertain whether the fracture site is infected, although both specialists agree that the appearances are consistent with the presence of osteomyelitis. There have been some clinical signs of infection, from time to time, which, apparently respond to antibiotic therapy if given. Dr Courtenay seems more optimistic that there is no infection than Dr O'Carrigan. The question can only be finally determined by a biopsy procedure prior to any surgery or by inspection of the site in the course of surgery. In the absence of surgical intervention the applicant will continue to experience a great deal of pain and disability as is now the case. He is relatively immobile and unable to work or take part in other prison activities; he is subject to considerable pain for which palliative treatment has been not always available and the provision of which has, given the exigencies of a prison system, being sometimes delayed. It is clear that so long as the condition is not treated surgically his experience of imprisonment will be more onerous than would ordinarily be the case.
30 Three alternative surgical procedures have been discussed. An orthopaedic consultant to the Corrective Services Department, has proposed a below knee amputation. All agree that that would definitively dispose of the infection, and Dr Matthews, while not advocating that procedure, has acknowledged that it would remove pain and, with the use of a modern prosthesis, would improve function and mobility. The orthopaedic specialists, Dr O'Carrigan and Dr Courtenay are both strongly opposed to the idea of amputation (as, it may be added is the applicant himself). Dr O'Carrigan has proposed a procedure of bone resection using what is referred to as the Ilizarov apparatus, and Dr Courtenay acknowledges that this is an appropriate procedure. It involves, however, not only a great deal of initial expense but a lengthy period (probably 12 months) of close follow up by the treating surgeon, which would be difficult but not impossible to secure while the applicant remained a prison inmate. In the absence of timely reviews by the treating surgeon, the risk of complications and an unfavourable outcome would be considerable. Dr Courtenay has proposed a less radical procedure which involves the debridement of the fracture site and the insertion of an intramedullary nail. Dr O'Carrigan concedes that that procedure may be satisfactory, but says there are risks. In particular, if it turns out that the non-union is infected, the internal operation may stimulate the spread of infection to a point where, in any event, the Illizarov treatment would be required or, in a worst case, amputation could be necessary. The procedure would not restore the loss of length of the right limb which has occurred, and would not correct the varus (outward bowing) deformity of the ankle. Although there is a risk of spreading infection in the course of the internal fixation procedure, that risk is not thought to be very large; and both specialists agree that even in the presence of infection, successful union of the presently ununited fracture could be anticipated.
31 It is not for this Court or the Corrective Services authorities to dictate what treatment the applicant should or may have in respect of his condition. The choice is his, and should he choose ( as he has indicated he would) the procedure proposed by Dr O'Carrigan, the Court must in my view proceed on the assumption that he is entitled to have that procedure, either (if he is in a position to pay for it) in the private system or, if it is available, in the public system.
32 The most recent information from Dr O'Carrigan is that the procedure could now be carried out upon the applicant as a public patient at Liverpool District Hospital, where the appropriate apparatus has recently been made available. The procedure could be carried out there not immediately but in the latter months of the current year. As a private patient the applicant could have the treatment almost immediately.
33 Either way, if he has the treatment while he is a prison inmate, it would be necessary for prison officers to be assigned to escort him to and from his post operative consultations and, depending upon his prison classification, to stand guard over him in hospital.
34 He had expected by now to be classified C3, which would do away with the need for such guarding while in hospital; but that expectation of the applicant achieving reclassification as C3, had not in fact been fulfilled when this matter was before the court on 11 May 2001 because of an internal matter of prison discipline. Shortly, it appeared from a routine urine test that there were present in the applicant's body drug residues which may have been consistent with his ingestion of heroin, contrary both to the law of the State and to prison discipline. However, other material before the court showed that the probability was that those traces merely reflected the applicant's ingestion of prescribed analgesics for the relief of the pain in his damaged leg and the probability appear to be that the reclassification will soon proceed as was previously anticipated.
35 If the treatment is carried out while the applicant remains a prison inmate, even though full time guarding of him in hospital may not be required, the cost of escorting him to and from the consultation post-operatively will be considerable, and there might no doubt sometimes be a problem in securing his attendance punctually, given all of the demands upon the Corrective Services Department. The performance of the surgery while he is an inmate is clearly a less desirable course. If the procedure is delayed, the consequence is the prolongation of the time during which he must endure continuing pain and disability.
36 One of the more recent decisions of this court dealing with the problem of reconciling the need to insist on this court's role strictly as a court of error, and the authorities referred to earlier dealing with the admission of fresh evidence, and the way in which this court should deal with such evidence consistently with the proper recognition of the limitations upon its jurisdiction, was Regina v L (unreported, 17 June 1996). The court said:
"The relevance to sentence of an offender's illness has been the subject of a number of authorities in recent years in this court and elsewhere. From them a number of principles can be extracted.
The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less in the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners; R v Vachalec (1981) 1 NSWLR 351 per Street CJ at 353-4. If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989 preserves the royal prerogative of mercy, and Section 25 A(I) of the act enables the Offender's Review Board to grant parole at any time if the prisoner is dying or there are other "exceptional extenuating circumstances": R v Jones (1993) 70 A. Crim. R 449 per Carruthers J at 457". (See now, Crimes (Sentencing Procedure) Act 1999, s102; and Crimes (Administration of Sentences) Act 1999, s160, conferring the like power on the Parole Board).
37 The court then referred to Smith, Bailey and other relevant cases, and observed-
"Where illness is seen to be relevant to the determination of sentence, its weight must be assessed in light of all the circumstances of the case. Obviously, one of those circumstances will be the seriousness of the offence".
38 As indicated above, the applicant is presently serving (as he was at the time when sentenced by judge Keleman) the balance of his parole, following revocation of parole and his return to custody on 29 April 1999. The sentence that he is required to serve by reason of that revocation of parole will not expire until 19 August 2001. This court has no jurisdiction to interfere with that situation. If the applicant has any remedy in relation to it, it can only be by way of an application to the Parole Board. Further as observed above, the effect of the sentences imposed by Judge Keleman in respect of which this appeal has been brought was to increase the applicant's period in custody only by the period from 19 August 2001 to 6 November 2002, an increase in the applicant's custody of less than fifteen months. The fresh evidence certainly shows that during his whole period in custody the applicant will, if the suggested surgery is not performed, continue to suffer a great deal of pain and inconvenience. Making every allowance for that, but giving proper weight to the gravity of the offences with which we are concerned, I am of opinion that to reduce the sentences (or the minimum term) would result in a sentence of unacceptable leniency.
39 Noting that the evidence does not suggest a significant risk of deterioration in the applicant's condition in the event that surgery is delayed, I have reached the conclusion that a case has not been established for the intervention of this court.
40 If, contrary to the present expectation of the medical experts, there were to occur a significant deterioration in the applicant's condition later in the term of his imprisonment and before arrangements are made for surgery, it would of course, remain open to the applicant, to make an application to the Parole Board for compassionate release.
41 I propose that; leave to appeal against sentence be granted, but that the appeal be dismissed.