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[2003] NSWCCA 341
respondent. Crown appeal dismissed; original sentence of imprisonment for 4 years with a non-parole period of 8 months (commencing 14 March 2003) remains in force; appellate court found the non-parole period...
Szabo was convicted of an aggravated sexual assault on his wife and sentenced to 4 years with a non-parole period of 8 months. The Court of Criminal Appeal found (i) the sentencing judge erred by accounting for the offender's serious medical condition only in fixing a reduced non-parole period rather than in the head sentence, and (ii) the 8-month non-parole period was manifestly inadequate relative to a 4-year head sentence. Nonetheless, weighing the offender's severe health problems, how the matter was run below, and imminent parole eligibility, the court exercised its residual discretion to dismiss the Crown's appeal and left the sentence unchanged. The decision stresses that illness is relevant to both head sentence and non-parole period, warns against double-counting, and confirms appellate courts may nevertheless decline to alter sentences in appropriate circumstances.
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Facts and procedure: The respondent, Lajos Szabo, was tried before Knight DCJ and a jury in the District Court and convicted of a single count of aggravated sexual intercourse without consent arising from an incident on 25 April 2002 (Anzac Day) involving his wife (paras 1–4). The assault included violence and the insertion of a cucumber into the complainant’s vagina; the complainant fled to a neighbour to summon police (para 4). Szabo was in his fifties, had no prior convictions, and the parties had a long marriage described as toxic (paras 2, 13).
Sentencing: Knight DCJ imposed a head sentence of 4 years’ imprisonment commencing 14 March 2003, with a non-parole period of 8 months (paras 1, 5). The sentencing judge expressly relied on the offender’s poor health when determining the non-parole period, observing imprisonment would be a greater burden on the offender and might gravely adversely affect his health (para 10). The judge had considered sentencing statistics and concluded that a typical range for the offence was four to five years (para 6), and rejected submissions for a suspended sentence (paras 7–9).
Medical condition: Extensive medical material before the Court of Criminal Appeal showed the respondent suffered from severe, multiple conditions: long-standing insulin-dependent diabetes, peripheral vascular disease, severe diabetic retinopathy, diabetic nephropathy, chronic renal failure, peripheral neuropathy, recurrent foot ulcers, and he was awaiting bypass surgery (paras 11–13). These conditions required ongoing medical treatment, frequent clinic visits while in custody, and a substantial medication regimen (para 12).
Crown appeal: The Crown appealed, contending the non-parole period was manifestly inadequate. The Court of Criminal Appeal heard submissions on 11 November 2003 (para 1). The three-judge bench (Grove J, Hodgson JA, Howie J) concluded that, while there was an error in principle in not taking health into account in the head sentence and the non-parole period was manifestly inadequate, the Court would nevertheless exercise its discretion to dismiss the Crown appeal having regard to all circumstances (paras 18–25, 31).
Outcome: Crown appeal dismissed; original sentence and non-parole period remain (para 31).
Core legal themes: The judgment centres on two interrelated principles: first, the proper consideration of an offender’s serious health in sentencing; second, the standard for appellate intervention when a non-parole period is disproportionately short.
Health must be reflected in the head sentence: Hodgson JA explicitly held the sentencing judge erred in principle by not taking the offender's state of health into account when setting the head sentence, although the sentencing judge did take it into account in fixing the non-parole period (para 24). The basis is established authority that pre-existing physical illness/disability is relevant to the duration of imprisonment (see para 14 referencing R v Vachalec and related authorities).
Non-parole period must reflect seriousness: Grove J concluded the non-parole period of eight months, on a 4-year head sentence, was manifestly inadequate, less than 25% of the head sentence and inconsistent with objective seriousness, denunciation and deterrence (paras 18–21). He relied on the Court’s prior analysis in R v Royale and on the High Court principle quoted from Power v The Queen that the non-parole period is the minimum period the judge considers appropriate (paras 19–20).
Residual discretionary remedy: Despite those findings, Grove J (joined by Hodgson JA and reluctantly by Howie J) exercised the Court’s residual discretion to dismiss the Crown appeal because the totality of circumstances, especially the respondent’s significant medical needs, the way the case was run below, and the imminent parole eligibility date, made intervention inappropriate in the interests of justice (paras 22–25). Grove J emphasised that dismissal does not endorse the sentencing judge’s approach: "the sentence imposed ... was wrong and the dismissal of the Crown appeal cannot be taken to suggest otherwise" (para 23).
Howie J’s caution: Howie J agreed with the result with hesitation, stressing that the sentencing exercise had miscarried principally because counsel before the sentencing judge focused incorrectly on specifying a reduced non-parole period rather than adjusting the length of the sentence; he warned against using special circumstances merely to mitigate the term to be served (paras 26–30).
Net effect: The Court thus declared legal errors (failure to account for health in head sentence; manifest inadequacy of non-parole period) but exercised discretion not to alter the sentence because of the particular, compelling circumstances of medical frailty and the manner in which the case had been litigated below (paras 23–25).
Before: The authorities prior to Szabo recognised that an offender’s health could be relevant both to the head sentence and to the non-parole period. R v Vachalec and R v Sellen were cited as supporting the proposition that imprisonment causing particular hardship due to illness can be a sentencing consideration relevant to duration (para 14). Brennan and Dawson JJ’s statement in R v Griffith that an offender’s health may be considered when setting non-parole periods had been accepted and later cited with approval (para 16).
What Szabo clarifies or reinforces:
Thus the decision sits at the intersection of sentencing principle and equitable discretion: it does not change the legal propositions, but it illustrates the practical restraint exercised by an appellate court in sensitive circumstances.
"The real question ... suspended sentence ... or ... significant length but ... comparatively short non-parole period ... to take into account ... his state of health." (para 7)
"Imprisonment will be a greater burden on the offender by reason of his state of health ... 'in my opinion sentencing him to prison will have an adverse effect on his general health'." (para 10)
"... specification was something less than twenty-five per cent [of the head sentence]." (para 18)
"The sentence imposed in the present case was wrong and the dismissal of the Crown appeal cannot be taken to suggest otherwise." (para 23)
"The sentencing exercise completely miscarried principally because of the submissions made by those appearing for the parties ..." (para 27)
The present judgment itself does not contain material about how later courts have treated Szabo. Szabo records the Court of Criminal Appeal’s approach and reasoning at the time and cites contemporary authorities (paras 14–20), but it does not discuss subsequent appellate treatment. Practitioners should therefore conduct targeted citator research (for example, via AustLII, LawCite or other citators) to locate decisions that cite Szabo for the principles it states: (a) health relevant to head sentence, (b) manifest inadequacy of a non-parole period, (c) discretion to dismiss Crown appeals notwithstanding identified error.
Scope of "double-counting": Szabo warns against double-counting when health influences both head sentence and non-parole period (paras 22, 24). However, how to quantify a permissible "modest adjustment" to a non-parole period after health has been reflected in the head sentence remains fact-sensitive and unsettled in analytical detail. The judgment indicates principle but not a precise methodology (paras 22–24).
Standards for discretionary dismissal: Szabo exercises residual discretion to dismiss despite finding manifest inadequacy (paras 22–25). There remains a question about the scope and limits of that discretion: what combination of offender circumstances, prosecutorial conduct, and practical consequences (such as imminent parole eligibility) will justify refused intervention? Szabo provides a fact-specific example but does not set bright-line criteria.
Interaction with statutory non-parole ratios: Grove J noted the statutory expectation (75%) as a touchstone but did not prescribe strict mathematical requirements (para 18–20). The acceptable range of deviation, and the weight to be given to medical hardship against objectives of denunciation and deterrence, require further appellate refinement.
Role of counsel's submissions at sentence: Howie J emphasised that incorrect advocacy contributed to a miscarriage of sentencing (para 27). The degree to which appellate courts should account for counsel-induced errors when deciding whether to re-sentence remains a matter of discretion and policy.
Practical note: When sentencing offenders with serious medical conditions, sentencing courts should:
For further reliance or citation, practitioners should check subsequent authorities for treatment of Szabo's discretionary approach and any refinement of the double-counting warning.
CITATION : Regina v Szabo [2003] NSWCCA 341 HEARING DATE(S) : Tuesday 11 November 2003 JUDGMENT DATE : 11 November 2003
JUDGMENT OF : Hodgson JA at 24; Grove J at 1; Howie J at 26 DECISION : APPEAL DISMISSED
CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED SEXUAL ASSAULT BY HUSBAND ON WIFE - MULTIPLE SERIOUS MEDICAL CONDITIONS AFFLICTING OFFENDER - SPECIALLY ONEROUS CIRCUMSTANCES OF INCARCERATION - SENTENCE NEVERTHELESS MANIFESTLY INADEQUATE IN TERMS OF NON PAROLE PERIOD - DISCUSSION OF APPROACH TO AND APPLICATION OF SPECIAL CIRCUMSTANCES - DISCRETION OF APPELLATE COURT TO DISMISS CROWN APPEAL LEGISLATION CITED : Sentencing act 1989 R. v Griffith (1989) 167 CLR 372 Power v The Queen (1974) 131 CLR 263 CASES CITED : R. v. Royale [2003] NSWCCA 275 R. v Sellen (1991) 57 A Crim R 313 R. v Simpson [2001] 53 NSWLR 704 R. v Vachalec [1981] 1 NSWLR 351 PARTIES : Regina v Lajos Szabo FILE NUMBER(S) : CCA 60140/03 COUNSEL : E. Wilkins (Crown/Applicant) M. Buscombe (Respondent) SOLICITORS : C.K. Smith (Crown) Kings Lawyers (Respondent)
LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1216 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60140/03
HODGSON JA GROVE J HOWIE J
1 GROVE J: This is a Crown appeal in relation to a sentence imposed upon the respondent following his trial at the Sydney District Court before Knight DCJ and a jury. He was convicted on a single count of aggravated sexual intercourse without consent. Following his conviction he was sentenced to imprisonment for four years commencing on 14 March 2003 expiring on 13 March 2007, and a non-parole period of eight months was specified commencing on 14 March 2003 and expiring on 13 November 2003. It therefore follows that the first date of eligibility for release to parole of the respondent falls due in two days' time. 2 The facts of the offence were serious indeed. The offence occurred on 25 April 2002. The victim was the respondent's wife. They had been married for about thirty years and they had four adult children. The relationship between them was described as toxic and it appears that for some time prior to the offence they had lived relatively separate lives although under the same roof. 3 On 25 April which was of course Anzac Day, the respondent's wife had been to the nearby shops and had visited some friends at a hotel. She came home at about 3.30pm. The respondent was at that time in the house and watching television in the main bedroom. It appears that he was watching a pornographic video display. The respondent's wife put some clothes away and later decided to have a shower. She returned to the bedroom with a towel around her. As she went to get some underwear from her drawer she was attacked by the respondent. She screamed and there was a punching, kicking and scratching melee between the two of them. 4 The respondent had a cucumber in his hand. The evidence is not clear as to how this cucumber came to be in the bedroom. Nevertheless, he said something along the lines about his erection being gone, that his wife was going to "have this". On two occasions he inserted this cucumber into his wife's vagina. In his remarks on sentence the learned judge felt that it was unnecessary to recite matters of detail and, like him, I do not believe it is necessary to articulate all of the circumstances beyond repeating my conclusion that the circumstances of the offence were serious indeed. The respondent's wife had to flee in a dressing gown without other clothing. She went to a neighbour and a telephone call was made for police assistance. 5 Those were the circumstances that gave rise to the offence charged by the indictment. The respondent pleaded not guilty but, as I have observed, he was convicted by the jury. The mere statement of the head sentence imposed and the non-parole period attached to it is capable of giving rise to surprise, to say the least. It therefore merits some investigation as to how the matter came to be dealt with in that fashion. 6 In his remarks on sentence the learned judge indicated that he had had reference to the statistics compiled by the Judicial Commission of New South Wales and he observed that after looking at those statistics he came to the conclusion that, in general terms, sentences for the particular offence tended to be imposed in the range of four to five years' imprisonment. 7 As I have observed, he imposed a sentence of four years' imprisonment. The somewhat surprising attached non-parole period was a matter that was canvassed during the sentencing proceedings. I will later turn to describe some matters relating to the respondent's medical and physical condition, but in relation thereto in an exchange with counsel, his Honour made this observation, "The real question is having regard to the nature of the offence, whether it is a case that could be dealt with by way of a suspended sentence. It seems to me really that that is the question that is posed for me in it. The other realistic alternative is to impose a sentence of imprisonment of a significant length but to have a comparatively short non-parole period, far shorter than would otherwise be the case to take into account the subjective factors, in particular his state of health." 8 In due course his Honour came to the conclusion that a suspended sentence was inappropriate. In submissions on behalf of the Crown, counsel who appeared for the Crown in those proceedings but did not appear on the appeal, drew his Honour's attention to the absence of contrition. This was evidenced not only by the absence of a plea of guilty, but in a Parole and Probation report tendered to his Honour where it appeared that the respondent continued to dispute his guilt of the offence. 9 The Crown Prosecutor pointed out that, so far as the respondent's medical condition was concerned, his state of health at the time of the offence was the same as it was at the time that he appeared for sentence. The submission was made that the option of suspended sentence was inappropriate and the Crown Prosecutor then put that the only alternative would be full time custody. She said, "The Crown does not cavil with the special circumstances due to his health but not to the degree that the sentence would be lenient, in my respectful submission." 10 Thus, as the matter was dealt with below, there was in effect a focus upon the specification of the non-parole period (perhaps to the exclusion of focus upon the length of sentence) in having regard to the respondent's condition. His Honour made a specific finding concerning the respondent's condition. He said, "In my view in this case, imprisonment will be a greater burden on the offender by reason of his state of health and also I consider there to be a serious risk of imprisonment having a gravely adverse effect on the offender's health. In that regard I rely on the last sentence of Dr Lacji's report." "That sentence simply stated 'in my opinion sentencing him to prison will have an adverse effect on his general health' ". 11 Despite the paucity of detail in that report there has been put before this court considerable material concerning the respondent's state of health. It could be said that we are, particularly as to detail, far better informed than his Honour was at the time of the sentencing proceedings. From the exhibited medical reports attached to the affidavits of Susan Amy Barnes sworn 30 October 2003, 6 November 2003 and 7 November 2003, it can be observed that the respondent is awaiting bypass heart surgery. He has a tabulated set of conditions described as insulin-dependent diabetes, a condition which has affected him for some eighteen years, peripheral vascular disease, severe diabetic retinopathy, diabetic nephropathy, peripheral neuropathy, recurrent foot ulcers and severe diabetic retinopathy. 12 An observation is made concerning his eyesight that a Professor Mitchell who is treating him in that regard, is not too optimistic that his eyes would be able to be "controlled", even with treatment. In other reports his chronic renal failure is referred to. The treatment of his foot ulcer is noted. It can be observed that whilst in prison between 14 May and 10 October he seems to have been taken to clinics from the gaol on at least twelve occasions. It is probably an indication of the scope of the conditions affecting him that his present medication regime consists of the following: Panadeine Forte twice daily, Norflex 100 mg daily, Iscover 75 mg morning, Pravachol 40 mg morning, Coversyl 2mg morning, Polytears eye drops both eyes daily as required, Mixtard 30/70, 50 units morning and 36 units night, Omperazole 40 mg night, Lasix 80 mg daily, Imdur 60 mg daily, Cardizem 60 mg morning and night. 13 It is no understatement to say that the state of health of the respondent was correctly described at the proceedings below as appalling. Nevertheless, the crime is, as I have indicated, one that was extremely serious. It was noted by the trial judge that the applicant had no prior convictions and he was a man in his fifties. Nevertheless it was a violent, unprovoked assault in the domestic circumstances that I have described. 14 At the hearing the court raised the possibility of there being an error of principle discernible in a failure by the sentencing judge to take into account the medical condition of the respondent in setting the whole length of sentence rather than in simply focusing upon the non-parole period. That the respondent's medical condition is relevant to the length of sentence is well-established law. See R v Vachalec [1981] 1 NSWLR at 351. That is not to say of course that it has not often been said that such a condition is relevant to the setting of a non-parole period. We were referred to R v Sellen (1991) 57 A Crim R 313. The relevant passage is at 318 which indicates that it was the view of the court, "If it is shown that imprisonment will cause particular hardship (either because of a pre-existing physical or mental disability of the prisoner or because of the circumstances in which the prisoner must be kept for protection) this is a circumstance to be taken into account in determining the duration of imprisonment."
Their Honours then referred to a number of authorities. 15 Duration of imprisonment would be taken to be a reference to length of sentence. Their Honours later said at (page 320) when proceeding to re-sentence in the particular case that it was their view that the prisoner then before them had established poor health and that this constituted special circumstances within s5(2) of the Sentencing Act as it then applied. 16 As I have said, there is ample authority that the condition of health of a prisoner can be relevant to the setting of a non-parole period. The remarks of Brennan and Dawson JJ in R v Griffith (1989) 167 CLR 372 where their Honours gave an offender's health as an example of something that can be taken into account in setting a non-parole period was recited with approval by Spigelman CJ in R v Simpson [2001] 53 NSWLR 704 @ page 713. 17 Having made those observations, however, it seems to me that this court in this case should take account of the way that the matter was dealt with by both parties below. I have already indicated how his Honour's observation was adopted to the extent that the Crown submitted that his Honour should not reduce the sentence or the non-parole period to one which was in effect overly lenient. 18 Thus, I turn to consider whether or not the specification of a non-parole period of eight months in this case was manifestly inadequate. In my view it clearly was, and was to an extreme extent. In the course of exchange with counsel it was pointed out that whilst the statute talks in terms of setting a non-parole period of seventy-five per cent of head sentence, in this case the specification was something less than twenty-five per cent thereof. This case in that respect bears a similar quality to that observed in the joint judgment of Justice Wood, the CJ at CL and Howie J in R v Royale [2003] NSWCCA 275. 19 In dealing then with a Crown appeal their Honours said in respect of the sentence, "The sentence imposed was inadequate to a degree that would have justified interference by this court. In particular, the non-parole period was manifestly inadequate. It simply did not reflect the objective seriousness of the offence nor adequately denounce the respondent's conduct and provide for general deterrence."
That is entirely applicable to the present case. Further, their Honours said that the disparity between the head sentence imposed and the non-parole period specified could rarely, if ever, be justified in the regime under the Act which existed at the time by a proper application of sentencing principles. 20 Their Honours reminded us that the High Court had said as long ago as in Power v The Queen (1974) 131 CLR 263 @ page 628, "In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention." 21 In this particular case the specification of a non-parole period of eight months falls so far below what would be adequate to fulfil those requirements that it is in my view, as I have said, manifestly inadequate. 22 This leads me to consider however what needs to be done in this case. I have already pointed out that the respondent's first date of eligibility for parole falls due in two days' time. I have touched upon the extent of his medical condition which is serious indeed. For my part I would be reluctant merely to increase the non-parole period and leave the head sentence where it is, because it seems to me that if my observation about the possible error of principle in setting the head sentence is correct, that would merely compound what might be an error. On the other hand, to deal with the matter by reducing the head sentence involves a number of factors including looking at whether or not such a reduction itself might need to involve a computation to avoid the possibility of what has been described as "double-dipping". That is to say, the reduction of the head sentence would necessarily reduce the "statutory" proportion to be specified as a non-parole period and it would be "double-dipping" to reduce that again. 23 Having regard to all of those circumstances and in particular to the constant medical attention required by the applicant, I have come to the conclusion that although this sentence is manifestly inadequate, indeed grossly inadequate, that this is a case in which the residual discretion of this court to dismiss an appeal should be invoked. Before proposing such an order I would like to add and endorse what was said by Wood CJ at CL and Howie J in the judgment in Royale, which is in my view also applicable to this case. "It should be made perfectly clear that the sentence imposed in the present case was wrong and the dismissal of the Crown appeal cannot be taken to suggest otherwise."
I propose therefore that the Crown appeal be dismissed. 24 HODGSON JA: In my opinion the sentencing judge made an error of principle in that he did not take the state of health of the offender into account in setting the head sentence, although he did take it into account in fixing a non-parole period of one-sixth of the head sentence. The sentencing judge should have taken it into account in setting the head sentence; and if it was to be taken further into account as part of special circumstances in relation to the non-parole period, then to avoid double counting it could only justify a relatively modest adjustment of the non-parole period from the prima facie ratio. However, having regard to the way the case was conducted below and the submissions made on appeal, it would not be appropriate for this court to intervene on the basis of such an error of principle. 25 I agree with Mr Justice Grove that the non-parole period was inadequate to an extent that would justify the intervention of this court. I am also of the view that, if the court did intervene and re-sentence, the result would be a lower head sentence and a higher non-parole period. However, I also agree that the court in this case should exercise its discretion not to intervene. 26 HOWIE J: I agree with some reluctance and considerable hesitation to join with the other members of the Court in dismissing the appeal in the exercise of discretion. 27 In my respectful opinion, the sentencing exercise completely miscarried principally because of the submissions made by those appearing for the parties before his Honour who sought a course which in my opinion was simply not in accordance with proper sentencing principles. 28 It is unnecessary in the present case to determine the proper weight to be given to onerous prison conditions in determining special circumstances when that factor has already been taken into account, as it should be, in determining the appropriate length of the sentence as a whole. But a sentencing court should not lose sight of the purpose of finding special circumstances, that is in reducing the non-parole period or lengthening the parole period for some purpose other than simply to mitigate the sentence imposed. 29 Although as R v Simpson [2001] 53 NSWLR 704 makes clear, there is no limit to the factors that might be taken into account in finding special circumstances, and the illness of the offender as it impacts on the conditions of imprisonment is one of them, it does not necessary follow that such a factor will amount to special circumstances to further reduce the period to be served before the offender is eligible to be released to parole. 30 The exercise of discretion in the present case is at the very margins of a proper exercise of the Court's duty to do justice to the Crown as well as to the respondent. I generally agree with the remarks of both Justice Grove and the presiding judge. 31 HODGSON JA: The appeal is dismissed.
Last Modified: 11/19/2003 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.
Regina
Szabo
Crown appeal dismissed; original sentence of imprisonment for 4 years with a non-parole period of 8 months (commencing 14 March 2003) remains in force; appellate court found the non-parole period manifestly inadequate but exercised its residual discretion to dismiss the appeal in all the circumstances (paras 23–25, 31).