Regina v Martinsen

The application 8 In this Court the applicant was represented by Ms Francis of counsel, who had not appeared in the District Court. She did not challenge the head sentence of two years. Her only submission was that, in determining the custodial period of sixteen months before the applicant's release on recognizance, his Honour failed to give adequate weight to the evidence of his age and state of health. What his Honour had to say in his remarks on that subject was this: He is now at an age where people do have some health problems and there is evidence of health problems not untypical with age. I note here he suffers chronic airways limitations, bronchitis exacerbated by smoking, shortness of breath. He suffers chronic back pain with evidence of compressed fracture and loss of bone density of his lumbar vertebra indicating osteoporosis. 9 His Honour went on to consider the need for a deterrent sentence, noting that this was not a case where there were "special circumstances" arising from "special illness" or "special deprivation …". He then continued: I cannot find any special circumstances as I have noted his age and the fact at that age he has these health problems which are not untypical. 10 Ms Francis' complaint is that his Honour made no reference to the applicant's problem with his eyesight and that, generally, those remarks understate the seriousness and significance of his poor state of health. At the hearing of the appeal we received further evidence, comprising an affidavit of the applicant and an affidavit of his solicitor to which is annexed material from the Corrections Health Service and some of the applicant's custodial records. Without objection, this evidence was received on the merit of the application upon the basis that it tended to show the true significance of the applicant's illness, evidence of which was before the sentencing judge: cf R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458. 11 That new evidence discloses a deterioration of the applicant's condition since he has been in custody. In particular, he suffers considerable pain because of his back problem, he cannot see properly with his right eye, and he experiences increasing blurriness of vision from his left eye. His poor eyesight makes it difficult for him to watch television and he can read only for short periods of time. His general physical condition is such that he cannot participate in many of the activities available within the prison, and he feels particularly vulnerable to any physical threat. 12 In his affidavit he also said that he had not been given any physiotherapy for his back condition and had not undergone eye surgery, although surgery had been recommended by the ophthalmologist whose report was before his Honour. However, there is no evidence before us about the immediacy of the applicant's need for physiotherapy or eye surgery, or about whether treatment of that kind is available within the prison system. That being so, Ms Francis did not rely upon those parts of the affidavit. 13 The authorities on the relevance to sentencing of an offender's illness were reviewed in Reg v L (CCA, unreported, 17.6.96) at pp 6-8. The effect of illness on the determination of sentence depends upon the facts of each case, but it is well recognised as a mitigating factor where it renders the offender's experience of prison more burdensome. That this is such a case emerges from the evidence before us which was not before his Honour. Generally, it must be said that the whole of the evidence demonstrates that the applicant's state of health is more serious than his Honour's observations would appear to recognise. 14 That said, the question remains whether this Court should now intervene. The offence of defrauding the Commonwealth and the related offences on the schedule disclose serious criminality, involving systematic fraud over an extended period of time. The sentence of two years imprisonment is a moderate one and, as I have said, it is not challenged. The period of sixteen months which his Honour required the applicant to serve before release on recognizance is two-thirds of the sentence, and is consistent with the norm for non-parole periods for Commonwealth offences: R v Bernier (1998) 102 A Crim R 44 at 49. Making all due allowance for the applicant's illnesses, a custodial period of that length remains an appropriate reflection of his criminality. The effect of his Honour's order is that he will be released on recognizance on 24 October this year, less than five months hence. 15 The application has merit but, in all the circumstances, I am not persuaded that any lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act. I would grant leave to appeal but would dismiss the appeal. 16 CARRUTHERS AJ: I agree with Hidden J. **********