REGINA v. KEIR [2004] NSWCCA 106

Court of Criminal Appeal (NSW)|2004-02-04|Before: Dunford J, Greg James J, Buddin J

The applicant's circumstances 18 The sentencing judge described the matters which were subjective to the offender in the following terms:- "He was born in Sri Lanka on 29 June 1924 and he is therefore now 79 years old. He came to Australia with his wife, his mother and five children in 1964. His only previous convictions are, notably, for three charges of forgery of which he was convicted in 1982. No details of those offences have been placed before me, however they were dealt with in the Local Court by way of fine and bond. The offender breached that bond for its 12 months duration by continuing to commit the first offence. He is entitled to some leniency for his almost unblemished record at 79 years of age, however, that must be seen in the light of his continuing to commit these offences undetected since he was approximately 50 years of age. … The offender has not given evidence before me, but other evidence establishes that he has been married for 50 years and has six adult children. He has always been in employment until he retired a the age of 65. He and his wife bought a home in the Liverpool area in 1967 and remained living there until towards the end of 2002. In October that year, after the sale of the house, the offender and his wife purchased a unit at Merrylands jointly with one of their daughters and her husband and that is where they currently live. In order to repay the debt to the Commonwealth, the offender and his wife have sold their interest in this property. The repayment of this sum reflects a degree of contrition. I accept and also take into account that the offender and his wife suffered hardship in making good the loss suffered by the Commonwealth. In addition, the offender pleaded guilty at the first available opportunity. Those pleas indicate remorse and acceptance of responsibility and a willingness to facilitate the course of justice. He has strong family support." 19 The sentencing judge then referred to matters arising from the offender's age and physical condition. She accepted the medical evidence that the offender was very ill.

The applicant's medical condition 20 There was evidence from his doctor which her Honour accepted which described the offender as "a respiratory cripple with very poor lung function, shortness of breath, even without exertion, heart disease, hypertension, unstable diabetes and poor balance". 21 The evidence from his doctor concerning the applicant's health included an opinion that:- "In my opinion he would be virtually unmanageable in a prison situation if for no other reason than because the would require special toilet and bathroom modifications in order to be able to attend to his toileting. He would also require constant medical supervision because of his unstable diabetes, unstable hypertension, frequent choking bouts and his respiratory distress. Unless he were managed in the prison hospital, he would be at serious risk of losing his life from any one of the many sources of cardiac, respiratory or diabetic instability." 22 The applicant's treating respiratory physician had noted in June 2003 that over the six months prior to that date the offender's condition had been relatively stable, albeit that he was still short of breath on mild exertion, but otherwise managing reasonably well.

The conditions of custody 23 Because a submission was advanced concerning the trial judge's expectations as to the treatment of the applicant when he went into custody, it will be necessary to consider some of the evidence which was led at the sentence hearing. 24 At the sentencing hearing there was evidence from the Assistant Director of the Corrections Health Service, Dr. Roberts. In a written report, Dr. Roberts referred to the medical facilities which were available within the prison system to provide care to inmates. At paragraph 10 of her report, Dr. Roberts said that she had been asked to advise on how the applicant would be medically managed, if he were to be incarcerated. She had had, in order to ascertain his need for medical care, the opportunity to review the reports of Professor Erlich and other medical reports concerning the applicant. 25 In her report, Dr Roberts referred to the provision of health care by the Corrections Health Service. It provided she said, medical, nursing and allied health staff in correctional centres which had strong links with various area health services. In particular, she made reference to Long Bay Hospital and the availability of a cell at that hospital with handrails. 26 Her report referred to the access enjoyed by Long Bay Hospital patients to specialist medical outpatient services provided at the Medical Transit Centre at Long Bay, as well as access to full time general medical officers. She also referred to the particular skills displayed by medical officers in the Corrections Health Service. Dr Roberts said that a higher level of medical care was available if a patient was clinically assessed to require it at the Prince of Wales Hospital or at other hospital accident and emergency departments. She referred to the Prince of Wales Hospital as having available an intensive care unit or secure hospital facilities with seven hospital beds designated for inmates from correctional facilities. In paragraph 15 of her report she referred to the availability of the specialist medical services and the general skill and experience of Corrections Health Service staff who could manage patients with complex conditions in correctional centres other than the hospital, but who might need to be transferred to the hospital should their condition become acute. 27 Paragraphs 14 and 17 of her report read as follows:- "14. If Mr. Keir was to be incarcerated, we would recommend he be admitted into B Ward where he can be medically assessed. In regards to the level of medical supervision he would require, Correction Health Service would make recommendations to the Department of Corrective Services (hereinafter referred to as DCS) in regard to appropriate accommodation and placement where appropriate medical services were available. 17. If Mr. Keir were to be incarcerated, his medications would be continued, his blood sugar levels would be monitored and specialist reviews would be arranged as appropriate." 28 Dr. Roberts gave evidence that she had not seen the applicant personally. She was asked whether persons with a high degree of shortness of breath would be kept permanently in the hospital at Long Bay. She said;- "If the requirement is such, we can [do] that, but as a general rule we don't often require to do that." 29 She gave evidence of the general form of transport provided by the Department of Corrective Services. She said that it was possible for medical staff to make a recommendation to the Department to have special transport rather than prison vans provided on medical grounds. 30 Dr. Roberts, in re-examination, gave evidence of an opinion not based on a specific examination of the applicant but by reference to what appeared in Professor Erlich's report, that the applicant was at serious risk of losing his life wherever he was accommodated "at the moment in regard to his serious medical condition that he has". She went on, however, to say:- "We have a high standard of medical care in our prison complex as well as the other surrounding complexes in the area. We have access to - I think I said this in the report already. We have a very experienced doctor who looks after the patients in the Long Bay Hospital with a 24 hour team of nurses there as well and they're very thorough in (sic) very used to looking after complex and chronic conditions and they assess the person's need, whether they need to stay in hospital or not, based on the medical indications at the time. Q. And his medical conditions are conditions that can be managed within the prison system? A. I believe so. Q. If I could just ask you to clarify your previous answer. When you said wherever he was accommodated previously, does that mean outside and inside prison or just inside prison? A. In regard to the question of serious risk of losing his life? Q. Yes, you said wherever he was accommodated. I'm just trying to clarify what that meant? A. I think a 79 year old gentleman with chronic health conditions needs a lot of medical care, whether it be in the community, whether it be in custody. We would certainly seek to offer as high a standard as the community offers and in a lot of ways there's nurses there 24 hours a day in the prison hospital and in other centres, they're there for often extended periods of time as well, so there's contact on a daily basis to medical services in the community now that the services aren't on site. In some ways we said that when - not that I suggest you bring anyone into custody because of medical conditions but we really do have a high standard of watching people very carefully with chronic complex conditions and in some ways their access to services because they're actually on site and right there. In some ways it's sort of more immediate than it is in the community. Not that I'm suggesting that you'd bring somebody into custody for those - for medical reasons by any means." 31 In further cross-examination, by leave, appears the following:- "BYRNE, Q: Doctor, do I take it from what you've just said in reference to 24 hour care and so on that you would consider that having regard to Professor Erlich's diagnosis of the medical condition of Mr. Keir, that he is a person who should be kept in the prison hospital? A. I'm unaware of Mr. Keir's current accommodation but I'm not aware of him being in 24 hour medical care at this present point in time from what the reports have indicated. Q. Well having regard to the diagnosis that Professor Erlich has made of him, you would consider that if he were to be given a sentence of imprisonment he should be kept in the prison hospital? A. We have not examined him ourselves and I'm not sure whether Professor Erlich has a knowledge of the level of medical care available in all the facilities within correctional centres, so I think it is difficult for either of us to make that statement as a black and white statement. Q. Well you've read Professor Erlich's report, and you've read that what he said was 'unless he were managed in the prison hospital he would be at serious risk of losing his life'? A. I've read that. Q. You don't challenge that statement? A. I have not examined the gentleman so I can't really give a specific medical opinion in that regard. Q. Well I suppose you would defer to the opinion of an expert who has examined the patient? A. Well I'm not sure that the expert knows of the full facilities available within our health system either, within the facilities that we have. Q. It doesn't matter, with respect, what he knows about the prison facilities. What he says is that he needs to be managed in the prison hospital, whatever facilities they may provide? A. But if he makes that statement does he know what level of care there is in other facilities. I'm not sure - look I don't know, maybe he does, maybe he doesn't, I don't know. Q. When would that diagnosis be made of him by medical people associated with the prison service? A. We would suggest that if he was brought into custody that he would be admitted to the B ward hospital, and our medical staff and nursing staff would make assessments in regard to the level of medical care that he requires and if it was appropriate for him to remain in the hospital, he would remain in the hospital. If it was appropriate for him to be accommodated in another part of the system that still had - if he come into custody he would need to be near medical services. We certainly would not be suggesting (it) be in any sort of distant gaol, distant from medical care if he did come into custody. We would be recommending he be near tertiary medical services and ready access to doctors, ready access to nurses but we would make that assessment at the Long Bay hospital and we would seek to, based on the documents we have plus any other documentation that we may be able to access from previous hospital admissions, previous doctors." 32 Thereafter, questions were put to the witness about a possible reduction in the number of beds available for the care of prisoners. 33 The sentencing judge enquired of counsel as to the significance that that topic might assume for sentencing purposes. During that discussion, reference was made to the unchallenged evidence of Professor Erlich to the effect that, were the applicant to be in prison, he would need constant care. There was also debate concerning the possibility that the Department would have an obligation to provide for him such hospital care as he might require. 34 Professor Erlich gave evidence that the applicant was cyanotic in court and that his respiratory function was worse as a result. He said:- "WITNESS; I think the thing to consider in a person of his age - he's just about 80 - and he's got multiple problems. It's not any one condition, like his lungs or his heart. I think that in aged care the problem is the interaction of many pathologies, and this man has got many things wrong with him. He's (sic) lungs are the most spectacular bit but he has very poor balance, he can only walk a few steps, he's very likely to fall over, he bruises easily and if he falls over he's likely to have a big bleed into the bit that he injures. He is reasonably helpless. I mean he's just about at nursing home level I would say now. The reason why he can survive at home is because he has a wife who helps to put his socks on, put his shoes on and helps him walk about. If that were not available he would be in a nursing home. So I think that his level of function is poor generally. BYRNE, Q: And the views that you have expressed about his likely prognosis if he were to be imprisoned have not changed in the light of the evidence that you've heard today? A. Well it depends on where he is imprisoned. I'm certain he would not survive in an ordinary prison. I think if he were in that B cell that is described in the doctor's report, if he were in a cell which is well equipped where he can be nursed constantly, where he can be helped with his clothing, where he can be accompanied to the toilet. If this were provided for the whole period of his imprisonment, then I think he would survive, but I think anything outside that place would not be tenable. Q. That B cell that you refer to is the one that is equipped with handrails and so on? A. Well I'd have to see where the handrails are and if they are readily accessible and I'd really want to see what sort of floor service it is because he is at high risk of falling over. But in ideal conditions yes, I think he can live like that but I don't think he could survive outside that situation." 35 It was not suggested to Professor Erlich that his views ought not to be accepted. As the matter stood at the conclusion of his evidence, his view that the applicant should be detained in hospital for the entire period of his imprisonment in order to ensure his survival, was left unchallenged. The effect of Dr. Roberts' evidence was that, if the applicant needed it, he would be accommodated in the gaol hospital or transferred to Prince of Wales Hospital. In the event that he was not to be detained in the hospital, he would be kept close to medical facilities. However, there was no suggestion that he might be detained in maximum security with prisoners so classified and subjected to the inevitable stresses and attendant health effects that such conditions of confinement would cause. Nor would the evidence have led the trial judge to contemplate that the applicant might not be held in the gaol hospital, but might instead be held in maximum security. 36 In submissions to the sentencing judge, counsel appearing for the respondent submitted that:- "It was clear from the evidence of Dr. Roberts, that while I think she agreed that Mr. Keir would be at serious risk of losing his life were he not medically managed by anyone wherever he was, that the provision of health care in the Corrections Health Service would be to a suitable level as per her evidence. It also has to be said in relation to that statement that was made by Professor Erlich of which so much as been made by the defence, your Honour that it is a statement that is phrased in Professor Erlich's report in the reverse, so to speak, in that it says, 'unless you are managed in the prison hospital he would be at serious risk of losing his life'. So, I think it has to be carefully understood that that's not a statement that Mr. Keir would be at serious risk of losing his life. But actually as professed in terms of unless he were managed in the prison hospital. In that sense, there is management available of people's medical conditions within the New South Wales prison system and your Honour has heard the evidence to that effect." 37 That submission embraced the proposition that the applicant would not be likely to be at serious risk of losing his life if he were held in the gaol hospital. It also suggested that the applicant would be able to have his life threatening conditions managed in the hospital. 38 Mr. Byrne of senior counsel submitted on behalf of the applicant that the applicant's poor health was a matter of great significance which would make a sentence of imprisonment for him a significantly more onerous experience than it would be for a person in relatively good health. Nevertheless that submission was made in the context that he would in fact be held in the gaol hospital. 39 There was nothing in the submissions suggesting that the views of Professor Erlich should not be accepted or that the applicant would not be accommodated in the gaol hospital, much less that he would be put in maximum security. 40 The sentencing judge was required to apply s.16A(1) of the Crimes Act 1914 provides that:- "In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." 41 It was in that context that her Honour had regard in her Remarks on Sentence, to the evidence given by Professor Erlich. Her Honour accepted that the Professor had conceded that "if adequate medical facilities were provided to the offender, he was at no greater risk in custody than if he continued to live in the community". The sentencing judge noted the responsibility of the Department of Corrective Services to provide appropriate care and treatment for all prisoners including those who are ill. Having had regard to the report of Dr. Roberts, her Honour was satisfied that the Corrections Health Service would be able to meet that responsibility. We understand the sentencing judge to be there referring to the responsibility of the Department of Corrective Services to provide appropriate care and treatment throughout the whole of the term of a prisoner's incarceration, including of course for those prisoners who are very ill. 42 It was in the light of those observations that the sentencing judge concluded, notwithstanding the other subjective matters including the applicant's illness, that the objective gravity of the offences was such that no sentence other than a full time custodial sentence was appropriate. Her Honour also concluded that, it was not appropriate to deal with the matter by releasing the offender immediately, but that the period during which he would be required to serve his sentence in custody should be reduced to reflect his subjective circumstances. 43 In passing sentence, her Honour also recommended that the offender be taken directly to the Long Bay Hospital Ward B. She explained that recommendation in the following words "and by that I mean that special transport should be arranged for him of the type Dr. Roberts spoke of when she was giving evidence this morning". 44 As the matter was left before the sentencing judge and, in the light of her Honour's recommendations and directions, it appears to us that her Honour's expectation was that the applicant would be taken directly by appropriate transport from the court room to Long Bay Hospital where he would there be hospitalised and assessed. Furthermore it would appear that her Honour's expectation was that he would continue to be accommodated in that hospital or alternatively would be transferred to Prince of Wales Hospital for as long as his condition remained life threatening, even if that remained the situation for the whole period of his imprisonment. There is no basis for any suggestion that the sentencing judge contemplated the possibility that the applicant may be placed in maximum security, rather than in the hospital.

The appeal 45 The application for leave to appeal originally asserted two grounds. The first, was that the sentence was, in all the circumstances of the case, manifestly excessive. The second was that the learned sentencing judge failed to have sufficient regard to the terms of s.17A of the Crimes Act (Cth) 1914. 46 Section 17A provides as follows:- "(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. (2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:- (a) shall state the reasons for its decision that no other sentence is appropriate; and (b) shall cause those reasons to be entered in the records of the court. (3) The failure of a court to comply with the provisions of this section does not invalidate any sentence. (4) This section applies subject to any contrary intention in the law creating the offence." 47 The powers of the court in relation to appeals against sentence are provided for by s.6(3) of the Criminal Appeal Act 1912. That subsection provides:- "On an appeal under s.5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 48 It was submitted by the applicant that in all the circumstances the sentences imposed upon the applicant were manifestly excessive, that is to say, that the nature of the sentence as involving full time imprisonment and the length of that imprisonment as imposed by the sentencing judge on each count, exceeded the bounds of a permissible sentencing discretion. In addition, it was contended, relying upon the effect of s.17A, that a sentence of full time imprisonment should not have been passed as such a sentence should only be imposed as a last resort and only where no other form of punishment can reasonably meet the circumstances of the case. It was submitted, that notwithstanding the seriousness of the offences and the maximum penalties specified by the Parliament in each case, and notwithstanding that the criminal conduct in question and its objective seriousness might normally have called for sentences of imprisonment, that such sentences were not warranted in this case when proper allowance was made for the applicant's age and his poor health. 49 It was argued in support of those submissions that the principle which is said to require the imposition of custodial sentences in cases of social security fraud has always been expressed in a qualified form with reference to such terms as "normally", "unusually", "ordinarily" or "in the absence of special circumstances". It was submitted that the applicant's case was indeed so unusual, special or exceptional as to warrant exceptional treatment. 50 We do not accept that the applicant's challenges to the sentences have been made good. We are not persuaded that a sentence other than one entailing full-time custody was warranted in all the circumstances. Nor do we consider that the challenge to the overall length of the sentences passed by the sentencing judge has been made good. The criminality was, in our view, of a high degree involving as it did a very lengthy course of dishonesty. In our view, there is no basis for contending that the sentences were excessive, even allowing appropriate weight for the subjective circumstances of the applicant at the time the sentence was passed, when proper regard is had to the nature and seriousness of the offences involved.

The further submissions 51 Had matters fallen out as they were expected to by the sentencing judge, we would, for reasons we have just given, have been of the view that the appeal should be dismissed. It is only because of a further submission concerning the subsequent events that we concluded that the appeal should be upheld. We now turn to consider that submission. 52 It was submitted that the sentences were passed on the basis that the sentencing judge expected the applicant to serve his sentence in hospital or at least not in such onerous conditions as led to the cardiac episodes suffered by the applicant, including the one suffered by him on the day of hearing of the appeal whilst he was in custody at the court. It was submitted that the sentencing exercise entirely miscarried when viewed in the light of subsequent events. 53 The Court was referred to the circumstances of the applicant's confinement, his removal from the gaol hospital after his initial assessment to a shared maximum security cell in the general vicinity of the gaol hospital and his removal, after a deterioration in his health, to the Prince of Wales Hospital. These matters were raised in affidavits filed in the appeal and read, subject to objection, on the hearing of the appeal on behalf of the applicant. They were supplemented by material provided by counsel orally from the bar table. 54 The hearing of this appeal was expedited because of the applicant's age and state of health. In view of the length of the custodial portion of his sentence and because it was submitted that he should not have received a custodial sentence or at least, should not be further detained in custody, it became apparent that the matter would need to be disposed of urgently. The further deterioration in the applicant's health on the day of hearing meant that a somewhat flexible approach needed to be adopted. Accordingly, the court permitted the parties to put matters from the bar table in amplification of the evidence which was adduced. 55 The court directed the filing of further reports to confirm those additional matters of which it had been so informed. Those reports from doctors having been obtained, the Court is now in a position to provide reasons for the orders which it earlier made. 56 Those reports confirm the information given to us at the time. They reveal that the applicant had suffered a further adverse cardiac episode whilst in the cells. It led to his hospitalisation in the cardiac ward of the Royal Prince Alfred Hospital. Earlier whilst he was in maximum security he had suffered a similar episode which had necessitated his being removed to, and held in, Prince of Wales Hospital until brought from there to the court for the hearing of the appeal.

The objection to the evidence 57 The evidence contained in the affidavits as to the applicant's condition whilst in custody, and the arrangements as to his accommodation, was objected to by the respondent as being irrelevant. It was submitted that, as the evidence related to events which had occurred only after sentence had been passed, it was not open to the court to receive it unless re-sentencing, as the court's function was limited to the correction of such errors as had occurred at first instance. 58 In response, the applicant submitted that there was an exception, albeit one rarely invoked, to the rule that the Court was confined, in the absence of error, to considering matters as they existed at the time of sentence. It was to the effect that evidence of subsequent matters was admissible to show that the sentencing exercise had miscarried because the trial judge had proceeded upon a misapprehension as to the circumstances in which the sentence was to be served. It was further contended that the sentencing judge was under a misapprehension that the applicant would be held in the hospital. At the very least it was submitted that her Honour would not have anticipated that he would be held in circumstances amounting to maximum security. 59 The respondent submitted that the sentencing judge was under no such misapprehension. It was submitted that the material before the sentencing judge, and indeed what her Honour herself said, lent no support to the proposition that she had any expectation that the applicant would be accommodated in the gaol hospital. It was submitted that her Honour left it entirely up to the gaol authorities to determine the arrangements concerning the applicant's detention, accommodation, treatment and transport and that this meant that detention in maximum security was thus within her Honour's contemplation. 60 It was thus necessary for the purpose of ascertaining whether there was such a misapprehension to ascertain what the sentencing judge's expectation was. It is for that purpose that we undertook the analysis to which reference has been made. That analysis provides the context in which the submissions to which we have earlier referred fell to be considered.

The nature of the evidence. 61 The affidavit evidence was originally admitted provisionally. It comprised the affidavits of Julie Zaki sworn 3 February 2004 and Lionel Rattenbury sworn 3 February 2004. In response, the affidavit of Jillian Rowan Roberts sworn 2 February 2004 was read. 62 In addition to the affidavit material and material of which we were informed by counsel, oral evidence was given before us by Professor Erlich and Dr. Roberts. The evidence appears to us to establish the following matters concerning the circumstances of the applicant's detention for the period that he was in maximum security: (i) the applicant was detained in a cell that was so small that he had to leave his bed in order that his cell mate was able to move; (ii) although there was a toilet in the cell, the showering facilities were about 100 metres away; (iii) the showering facilities had a ceramic floor that became extremely slippery with use from soap used by other prisoners when showering; (iv) the applicant was in fear of falling because of his lack of balance and his medical conditions and because there were no handrails; (v) the applicant had to walk about 100 metres in order to get to a facility to receive his medication; (vi) the applicant was apprehensive about being detained in such circumstances; (vii) the applicant's cell was located several hundred metres from the Long Bay Prison Hospital and was separated from it by a steep hill and a carpark; (viii) the applicant's accommodation within that gaol meant that the type of medical supervision available to him was very different to that which would have been available had he been detained within the hospital; (ix) the monitoring of his own medical condition seems to have been to a considerable extent left up to the applicant to manage. 63 It was submitted that the custodial portion of the sentence was, having regard to these matters, accordingly particularly severe on the applicant in a way which had not been contemplated by the sentencing judge. It was also submitted that the hospitalisation regime which the sentencing judge had anticipated was either not implemented or, so far as it was, was implemented in a way which did not accord with her Honour's expectations. It was then submitted that the applicant was treated in a manner which was unexpectedly, unusually and unduly onerous. It was these circumstances which had, it was submitted, led to the cardiac episodes. 64 The respondent submitted that no error had been shown in the sentencing exercise undertaken by the sentencing judge. It was submitted in any event that the matters now sought to be relied upon would have made no material difference to the sentence. It was submitted, as it had been at trial, that the seriousness of the offender's conduct, the types of crime committed and their prevalence necessarily pointed to a custodial sentence, even though the applicant was of advanced age and in poor health. It was submitted that there was no error in the length of the custodial portion of the sentences, even allowing for the fact that the applicant had been detained in maximum security in the circumstances to which we have referred, rather than in any hospital. 65 In support of the contention that it was not open to the court to re-open or review the sentence on the basis advanced, the respondent relied upon cases in which reference is made to it being the responsibility of the executive to provide for the care and treatment of its prisoners: Regina v. Vachalec (1981) 1 NSWLR 351 per Street, CJ. at 353-354. In Regina v. L (CCA, unreported 17 June 1996) the following passage appears: 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 than 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 s.25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other 'exceptional extenuating circumstances': Regina v. Jones (1993) 70 A. Crim. R. 449, per Carruthers, J. at 457." 66 It was submitted that the evidence should be rejected as the circumstances of the applicant's confinement, once sentenced, were a matter for the executive. Reliance was placed on Regina v. Munday [1981] 2 NSWLR 87 and Regina v. Jones (1993) 70 A. Crim. R. 449. It was submitted that the evidence went no further than showing the circumstances in which the applicant was detained. 67 It was submitted that the sentencing judge had accepted the evidence of Dr. Roberts that the Corrections Health Service would be able to meet its responsibility for the applicant's required treatment and that it was not this Court's role to concern itself with the condition of the applicant whilst he was in custody. 68 In our view these submissions should be rejected. 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."

Conclusion 75 Having regard to the analysis we undertook earlier in this judgment, it was patently clear to us that the sentencing judge expected the applicant to be accommodated in the gaol hospital, and that he would be taken and admitted into the Prince of Wales Hospital, as and when required and if that became necessary then he would be provided with special transportation. We also conclude that the trial judge expected that if the applicant was to be discharged from the gaol hospital, then he would be detained in circumstances that were much less onerous than the evidence reveals, in fact occurred. 76 We are not presently concerned with questions relating to the appropriateness of the decision as to where the applicant should have been accommodated. Nor is it of any present relevance, as was submitted, that had the applicant been in the community, he might not have received medical care of the standard that appears to have been contemplated by the doctor whilst he was in custody. 77 This aspect of the appeal is concerned with the circumstances under which the applicant was expected by the sentencing judge to serve his sentence and whether in light of what actually occurred, a sentence would have to be served that was in effect materially different from the sentence which the sentencing judge envisaged that she was passing. The question on appeal becomes whether "some other sentence warranted in law should have been passed" Criminal Appeal Act (s.6(3)). 78 Because the sentence as it has in fact been thus far served, is so different in its impact from that which the trial judge envisaged would be served when the sentence was passed, it is our view that the discretion of this Court, in this exceptional case, has been enlivened so that we can take account of what has actually transpired. In that sense we have an advantage that was denied to the trial judge. 79 The authorities to which we have already referred illustrate the point that the Court may have regard to such matters where the basis upon which the trial judge proceeded to sentence has effectively been undermined. The present matter falls within the principles stated by Loveday, J. in Regina v. Ehrenburg (unreported 14 December 1990) in which his Honour said that: "One circumstance that can make them relevant is if the subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing." 80 See also Regina v. Bailey (1988) 35 A. Crim. R. 458. Our decision does not involve the court in exercising a form of supervisory function in relation to the applicant's circumstances of confinement. Rather it concerns an appropriate review of the nature and circumstances of the sentence which the court understood that it was passing in the light of what has actually transpired. That is an important consideration because s 16(3) of the Crimes Act (Cth) requires a court in determining an appropriate sentence to "have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order". 81 In our view, in the light of the fresh evidence which the court has received and in the wholly exceptional circumstances of this case, this was a case that required this Court's intervention in order that to ensure that the sentencing regime contemplated by the trial judge was not thwarted and to ensure that there was no injustice in the result. 82 It is for these reasons that the court made the orders granting leave to appeal and re-sentencing the applicant to which reference was made at the commencement of this judgment **********

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CITATION : REGINA v. KEIR [2004] NSWCCA 106 HEARING DATE(S) : Wednesday 4 February 2004 JUDGMENT DATE : 19 May 2004

CATCHWORDS : Criminal law - sentence - appeal - lengthy course of pension fraud - elderly ill applicant - full time custody called for - sentencing judge expected custody in hospital or not in maximum security - applicant put in maximum security to be out of hospital but close to it - suffered consequential heart attacks requiring removal to hospital - further attack when taken to court - necessity to re-sentence to accord with sentencing judge's expectations. LEGISLATION CITED : Crimes Act (Cth) 1914 Criminal Appeal Act 1912 Vachalec (1981) 1 NSWLR 351 L (CCA, unreported 17 June 1996) Munday [1981] 2 NSWLR 87 Jones (1993) 70 A. Crim. R. 449 Goodwin (1990) 51 A. Crim. R. 328 CASES CITED : Bradley [2004] NSWCCA 88 Wilson v. Department of Corrective Services (1997) 93 A. Crim. R. 301 Jenkins (CCA, unreported 14 July 1993) Price (CCA, unrpeorted 2 September 1993) Scullion (CCA, unreported 15 July 1992) Ehrenburg (Loveday, J. unreported 14 December 1990) Bailey (1988) 35 A. Crim. R. 458 PARTIES : REGINA v. KEIR, Hugh Frances William FILE NUMBER(S) : CCA No. 60014 of 2004 COUNSEL : Crown: T. Muir App: P. Byrne, SC. SOLICITORS : Crown: Commonwealth Director of Public Prosecutions App: Armstrong Legal

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