RNM v Regina [2006] NSWCCA 375 | Case summary

[NOTE: The Court has ordered that there be no publication of the name of the applicant or of any material from which his identity could be ascertained or of any part of the material in the sealed envelope, the contents of which were Exhibit W in the District Court.] 1 The applicant, "Mr. M" as I shall call him, applies for leave to appeal against sentences of imprisonment that were passed upon him in the Gosford District Court on 18 May 2005. 2 The applicant was presented in that Court on 18 October 2004 for trial upon an indictment containing two counts. Count 1 charged the applicant with having detained for advantage and in circumstances of aggravation a named victim. Such an offence contravenes section 86(2) of the Crimes Act 1900 (NSW), and it attracts upon conviction a maximum penalty of imprisonment for 20 years. Upon any trial of such an offence it is open to the jury, should the jury not be satisfied that there were circumstances of aggravation, to return an alternative verdict of detaining a person for advantage. Such an alternative offence contravenes section 86(1) of the Crimes Act and attracts upon conviction a maximum penalty of imprisonment for 14 years. Count 2 charged the applicant with having assaulted the same victim occasioning to that victim actual bodily harm. Such an offence contravenes section 59 of the Crimes Act and attracts upon conviction a maximum penalty of imprisonment for 5 years. 3 The applicant pleaded upon arraignment not guilty to both of counts 1 and 2 in the indictment. A jury was empanelled and the applicant was put accordingly upon his trial. On the following day the applicant indicated that he wished to change his plea to count 2 in the indictment. He was accordingly re-arraigned and pleaded guilty to the offence charged against him in count 2. He maintained his plea of not guilty in respect of the offence charged against him in count 1 of the indictment, and his trial proceeded to verdict upon count 1. The jury acquitted the applicant, by direction of the trial Judge, of the section 86(2) offence; but the jury found the applicant guilty of the alternative, section 86(1) offence. 4 The applicant stood for sentence on 18 May 2005. For the offence charged in count 2, the applicant was sentenced to imprisonment for 1 year and 4 months with a non-parole period of 12 months. For the section 86(1) offence, he was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 9 months. The sentences were made wholly concurrent. 5 Two grounds of appeal were notified and argued. They are: "1. The sentencing judge erred in his application of Crimes (Sentencing Procedure) Act 1999 s.23. 2. At the time of sentence, the applicant was suffering from a symptomatic but undiagnosed life-threatening illness, the treatment of which has rendered his conditions of custody more onerous and made on-going review more difficult." 6 Before considering the grounds of appeal, it is necessary to summarise the relevant facts, which are as follows. 7 The victim of the two offences was a young man to whom I shall refer only as DAP. He was born on 1 March 1987. He was aged, therefore, 16 years and some 7 months at the time of the commission of the offences. The applicant knew DAP but not particularly well. 8 On Friday 10 October 2003 the applicant became aware that money had been stolen from his wallet and in his home at Unima. He was convinced that DAP was the thief. The applicant decided to go to Woy Woy in order to collect vouchers from a charity organisation in order to make up for the amount which had been stolen from his wallet. The applicant organised to be driven to Woy Woy by a young man to whom I shall refer only as H. The applicant and H were accompanied on that journey by two other males and by a girl to whom I shall refer only as L. 9 As it happened, DAP himself had travelled to Woy Woy, and he was seated at a bus stop near Woy Woy Railway Station when the applicant and his travelling companions arrived nearby en route to the location in Woy Woy at which the applicant was intending to obtain the charity vouchers. The vehicle was parked; H and L remained in it; and the applicant accompanied by the other two male travelling companions got out of the vehicle. The applicant caught sight of DAP and approached him. According to DAP the applicant was aggressive; and persistently pressured DAP to carry out a robbery of a particular lady who was carrying out a cash delivery to a nearby bank. As I understand the facts which were presented to the sentencing Judge, the Crown case was that the applicant's purpose in thus putting pressure on DAP was to recoup in that fashion the moneys which he, the applicant, was convinced that DAP had earlier stolen from him. 10 According to DAP, he was very frightened for his own safety. In that state of apprehension, he accompanied the applicant to a position near to and opposite the Woy Woy branch of the Commonwealth Bank. According to DAP, the applicant continued to threaten and to put pressure upon him while the two of them were walking towards that location. 11 The particular intended victim emerged from the bank. DAP ran towards her. Instead of assaulting and robbing her, as it seems he had been instructed by the applicant to do, he ran past her and ran down a nearby alley to the Woy Woy Railway Station where he caught a train from Woy Woy to Wyong. According to the intended victim, DAP did in fact grab at her bag as he ran past her, but he did not in fact carry off the bag and its contents. 12 The applicant, having thus lost touch with DAP, returned to H's car. The applicant, H and the other travelling companions thereupon returned to the applicant's home at Umina. 13 There, and in circumstances which it is not now necessary to canvass in detail, the applicant became aware that DAP either was at, or was on his way to, Wyong. The applicant determined to pursue DAP. To that end, he demanded that H drive him to Wyong. H did so, the two men being accompanied by L and by another young girl to whom I shall refer only as T. T had previous been in a "relationship" with DAP. She, DAP himself, H and L were all occasional users of illegal drugs. 14 The applicant and his travelling companions were in fact successful in locating DAP at Wyong. DAP was accosted and told to get into the waiting car. He was questioned about what had happened in connection with the bag and its contents which he had been instructed to steal in Woy Woy. He explained that he had not in fact stolen that property. 15 DAP, while thus detained in the motor vehicle, was assaulted physically and abused verbally by the applicant. The applicant demanded that DAP come up with some idea to get back the applicant's stolen money or to get for the applicant property in substitution for that stolen money. 16 DAP directed the group to a residence at Gosford. H drove the group to that address. DAP was hopeful that a friend of his who lived at the Gosford address might oblige him by giving him either money or drugs with which he hoped that he might placate the applicant. As it happened, DAP's friend refused to have anything to do with DAP's proposal. 17 This failure caused the applicant to become angry. DAP got back into the car from which he was unable to get out. The applicant and DAP, driven by H and accompanied by the other young persons previously mentioned, thereupon proceeded to a number of locations at each of which the applicant importuned DAP to steal. Throughout these journeys the applicant assaulted DAP at various times. Eventually, and at one such location, DAP presented as so obviously distressed that he attracted the attention and ultimately the assistance of staff at the location. The police were called and they took DAP into custody from that location. The applicant and his other travelling companions were subsequently arrested. 18 DAP was treated in the emergency department of the Central Coast Area Health Service. He had severe facial swelling in the area of his left cheek and a left black eye. No fractures were detected upon X-ray. Photographs were taken of DAP in his injured condition; and it is clear from them that he had been quite severely beaten in the area of his left eye and left cheek. 19 Having regard to the limited scope of the two particular grounds of appeal which are now to be considered, it is not necessary to say anything further about either the material facts or the detail of the remarks on sentence apart from the particular remarks pertinent to ground 1. 20 Ground 1 raises for consideration the requirements of section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), ("the Sentencing Procedure Act"). That section provides: "23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims, (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) the likelihood that the offender will commit further offences after release. (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 21 The learned sentencing Judge dealt as follows with this aspect of the applicant's case: "(11) Assistance to the authorities. There is an affidavit of Superintendent Swilks, exhibit W. That affidavit is to remain sealed and not be opened without the consent of the court. The offender made a statement to police about an incident that had occurred on 10 August 2004. The Director of Public Prosecutions decided not to use the offender's evidence in relation to any charge arising from that incident laid against any person. This means that the offender's offer of assistance to the authorities is of little, if any, value. Of course, however, the fact that the offender has offered to assist the authorities is something which, if it became known in prison or outside prison, might expose him to the risk of retribution by people whether named or not named by him and whether inmates or former inmates. I think it is something to be taken into account in the offender's favour." 22 The applicant's submissions make several criticisms of his Honour's approach to the question of assistance to the authorities: first, that his Honour was required by section 23 "……to clearly identify and balance the competing considerations outlined ……"; secondly, that his Honour erred in failing to quantify a discount to be given to the applicant in consideration of the applicant's assistance to the authorities; thirdly, that his Honour overemphasised the decision of the Director of Public Prosecutions not to rely upon the applicant's proffered evidence, and correspondingly underemphasised the true worth of that assistance to the investigating police; and fourthly, that his Honour grossly underrated the potential adverse consequences to the applicant, and perhaps to the applicant's family also, of the applicant's proffered assistance and evidence. 23 I preface my discussion of those submissions with a citation of two passages in particular taken from the judgment of McHugh J in Markarian v The Queen [2005] 79 ALJR 1048 at 1066, 1067. His Honour in the series of paragraphs [76] through [84] of his Honour's reasons gives what seems to me, with respect, a powerful and wholly convincing vindication of the method of judicial reasoning, in connection with sentencing, that is conventionally described by the expression: instinctive synthesis. It is neither convenient nor necessary to quote the entirety of that material; but what his Honour says in paragraphs [78] and [83] are, in my opinion, well worthwhile citing in the context of the present particular case. Those paragraphs state the following propositions: "[78] No one suggests that the judicial robe carries in its seams the wisdom of Solomon, but judicial experience in sentencing is a skill to be respected by the community and other judges. Repeated exercise in synthesising sentencing factors can only hone the instinct required to translate such factors into just numerical outcomes. That experience, combined with the special advantages of receiving sentencing material, including oral material, first hand, are the two most important reasons why appellate courts, and especially an ultimate appellate court which is national rather than local to the sentencing jurisdiction, must exercise restraint in reviewing sentencing decisions, especially on the basis of manifest excess or leniency." [83] Finally in Veen (No. 2) , as I have indicated, this Court affirmed that the ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process, the kind later identified on appeal as manifest excess or leniency in accordance with the principles in House v The King. 24 Turning, then, to the applicant's submissions as I have previously herein summarised them, I would reject the first of those submissions. No doubt a sentencing Judge who is called upon to apply the provisions of section 23 of the Sentencing Procedure Act can carry out that task by treating the terms of sub-section (2) as some kind of check list, each item of which is to be considered separately, and as it were, ticked off sequentially. It does not at all follow, in my opinion, that a sentencing Judge necessarily falls into appellable error by not adopting that somewhat mechanical approach to the provisions of the sub-section. As Fitzgerald JA said in R v JCE [2000] 120 A Crim R 18 at 21: "It is desirable not to complicate the sentencing process unnecessarily". I respectfully agree, and would add only a repetition of something that I said (Ireland and Hidden JJ concurring), in R v Duffy :unreported, 13 October 1999: "11. ………… It is not expected that a sentencing Judge, and particularly a sentencing Judge in the District Court, will write an essay in jurisprudence every time he or she comes to deliver remarks on sentence. But it is, I think, timely to say that the Court expects that primary sentencing Judges will at least state, however briefly, the findings of fact upon which they are persuaded to proceed; and will then expose in relation to those facts as found a coherent process of reasoning which will sufficiently equip this Court to intervene if asked to do so, and if a cause for doing so is otherwise shown." 25 I am unpersuaded that the learned sentencing Judge in the present case fell short of what those principles, sensibly understood and sensibly applied, require. 26 In a case of the present kind the Sentencing Procedure Act provides in fact no less than three check-lists, if I may so describe them, to which a primary sentencing Judge must have regard: section 3A provides one such list; section 21A provides a second; and section 23(2) provides the third. To require a sentencing Judge, and particularly a sentencing Judge in a busy Court such as the District Court, to go precisely to and through each and every one of the matters stipulated in those three sections of the Sentencing Procedure Act would be, in my opinion, to impose upon the primary Judge a burden that would be as unnecessary as it would undoubtedly be burdensome. In my opinion this Court should set its face firmly against any attempt to give that kind of operation to such a provision as section 23(2) of the Sentencing Procedure Act. 27 I would take, broadly speaking, the same approach to the second of the applicant's submissions as I have previously herein summarised them. 28 It seems to me that the learned sentencing Judge's process of reasoning in respect of any discounting of sentence in consideration of assistance to the authorities, is sufficiently clear for the purposes of this Court. His Honour obviously took the view that in the events which had happened, the case was not one calling for a precise expression in percentage terms of a discount for such assistance. His Honour obviously regarded the case as one in which it was appropriate to take a broader view, factoring into the ultimate sentence the consideration of assistance to the authorities as part of that "instinctive synthesis" discussed by McHugh J in the passage earlier herein quoted from Markarian. 29 It is possible for this Court to look for itself at the relevant material which was placed before the learned sentencing Judge; and then to come to a view whether the ultimate sentences passed upon the applicant are such as to persuade this Court that, after the appropriate balance has been struck between the relevant objective criminality and the relevant subjective considerations, it is reasonable to infer that the quality of the assistance offered to the authorities cannot have been adequately reflected in such ultimate sentences. 30 As to the third and the fourth of the applicant's submissions as I have previously herein summarised them, it seems to me that the most convenient course is to consider those submissions together and in conjunction with the consideration of the mandatory requirements of section 23(3) of the Sentencing Procedure Act. In carrying out that exercise, it is convenient to begin by examining the relevant material that was placed before the District Court in connection with the topic of assistance to the authorities. 31 I have examined that material. In commenting upon it, I bear in mind the need for circumspection. 32 At the material time the police were investigating two related murders. The murders had been carried out in circumstances of shocking violence. The police were concerned, naturally, to obtain any available information and assistance concerning the carrying out of these two appalling murders. In the course of those investigations, the police came into contact with the applicant. In evidence before the learned sentencing Judge the applicant explained as follows what had actually happened: "Q. When you said the police had said to you there were gaps in the case, was that about the issue of motive? A. No the gaps in the case were they weren't sure what had actually happened. They knew what had happened to the victims but they weren't sure on what had actually happened from the time that they arranged to go to the house until the time - and what had happened in the house, the whole procedure of what had happened in the house until the time they actually left and he went on the run and was caught three months later. Q. So as a result of that, you went out fishing for questions, as it were, with assistance from the police? A. No, the officers had actually told me what questions that they needed to know. So I then put myself into that procedure of asking him different things without him being suspicious of me to get the answers I needed." 33 The applicant is there referring to a particular person who was the actual killer of the two particular victims. 34 The information furnished to the learned sentencing Judge was to the effect that the investigating police had always believed that the particular individual had been involved in the two murders, but that they "….. had little evidence to support the fact that (he) directly assaulted either (victim).As a result of the assistance by (the applicant) investigators now have a motive as to reason why (the killer and an associate) attended (one of the victim's premises) and have evidence that implicates (the killer) as to directly assaulting both (victims)". 35 That information to the sentencing Judge offered this opinion: "The crown (sic) case of murder against (the killer) is now a strong one due in part to the evidence that will be given by (the applicant)." 36 As I have previously explained, the learned sentencing Judge was required to have regard to a number of criteria established by section 23(2) of the Sentencing Procedure Act. One of those criteria, and it is particularly relevant for present purposes, is: "(b) (T)he significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered." 37 The assessment in the present case of "significance and usefulness" and of "evaluation by the authority or authorities" is not, in my opinion, at all a simple exercise. The investigating police obviously regarded the assistance as both significant and useful from their particular point of view as criminal investigators. To say that the Crown case of murder was "now a strong one due in part" to the relevant assistance is, it seems to me, somewhat ambiguous. What is said does not seem to be intended to convey that a previously weak Crown case had been transformed into a strong one by the assistance offered to the police. What is conveyed seems to be, rather, that the assistance offered to the police was one of a number of factors which had built up the strength of the Crown case. Be all that as it may, it is fair to understand that, at least from the point of view of the police, the assistance offered to them was significant and useful. 38 That picture, fairly straightforward in its own terms, becomes in my opinion more blurred and more difficult to assess for the purposes of section 23, by reason of the undoubted fact that the Director of Public Prosecutions, the relevant prosecuting authority, was fully as much an "authority concerned" as were the investigating police. It is not controversial that the Director chose not to rely upon evidence given by the applicant in line with what the applicant had told the investigating police. There is in hand no such evidence as would pin down precisely the process of reasoning which led the Director to that decision; but I apprehend that it is reasonable to infer that the Director, having reviewed the available material, came to the conclusion that the particular case was not one in which it would be appropriate to put forward in support of the Crown case the particular prison informer. 39 It seems to me, therefore, that the matters to which section 23(2)(b) refers attract two contradictory assessments. The investigating authorities considered the assistance to be significant and useful. The prosecuting authorities regarded the assistance as not being of such a quality as justified making use of the assistance in connection with the presentation of the relevant Crown case. The tension between those two viewpoints seems to me to support in a general way the approach of the learned sentencing Judge: that is to say, an approach which took into account in a general way the offer of assistance, rather than to attempt a more refined assessment of the value of the assistance by assigning to it some discounting effect expressed in percentage terms. 40 I do not propose to make a similar exhaustive canvass of each and every one of the remaining criteria prescribed by section 23(2). It does not seem to me to be either necessary or convenient to take that approach. It suffices, in my opinion, to acknowledge that anybody giving to investigating police information of the kind given to such investigating authorities by a person in the present applicant's position must entail, as a matter of common sense reality, an acceptance of the real possibility of risk of harm to either or both of the applicant himself and the members of his immediate family. It seems to me, however, that once again there was no necessary error in the approach, taken by the learned sentencing Judge, of making a general assessment as part of the relevant instinctive synthesis, rather than of making an assessment expressed in raw percentage figures. 41 It is necessary, as well, to keep carefully in mind when discussing the way in which the sentencing Judge approached section 23, the mandatory requirements of section 23(3). Some guidance as to how sub-section (3) should be interpreted and applied, is afforded by two decisions of this Court in connection with the construction and application of the legislative precursor of section 23 of the Sentencing Procedure Act, namely section 442B of the Crimes Act. 42 The first of those two decisions is that of this Court, (Mahoney JA, Newman and James JJ), in R v C (1994) 75 A Crim R 309. In discussing the then statutory equivalent of section 23(3) of the Sentencing Procedure Act, Mahoney JA, who wrote the principal judgment of the Court, said: "In the present case, the legislative intention was to ensure that sentences were not, in general, disproportionate to the nature and circumstances of the offence. There was a clear public interest in that objective. The public unease said to have existed, or to have been generated, by the extent of the discount given in the Many case may evidence that. But there was another public interest involved, namely, the provision of the utmost assistance to the law enforcement authorities. The detection and arrest of offenders at the least cost to the public requires that such assistance be given and that the giving of it be encouraged by its recognition in the sentencing process. The difficulty involved in the drafting of the section no doubt arose, inter alia, because of the problem of reconciling, in the terms of the section, these two objectives. If the legislature had provided merely that no sentence should be so reduced as to become "disproportionate to the nature and circumstances of the offence" and that alone, it would in some cases at least have been impossible to give effect to the need to encourage assistance to law enforcement authorities and to the recognition of this in the sentencing process. In many cases the discount for assistance would necessarily reduce the sentence below what otherwise would be proportionate to the nature and circumstances of the offence. In my opinion, the draftsman accommodated these two objectives in at least two ways. First, the proscription imposed by s 442B(2) was not absolute proscription. The provision did not proscribe sentences which were disproportionate; it proscribed only those which were "unreasonably disproportionate". It was clearly intended that, in determining what was "unreasonable" for this purpose, the Court should be able to take into account the assistance given to law enforcement authorities and, taking that into account, to reduce a sentence below what otherwise would be required by the nature and circumstances of the offence. The use of the term "unreasonably" for such a purpose involves at least two things: that the sentence, following reduction for the assistance will be "disproportionate" to the offence but not unreasonably so; and that, in deciding what is "unreasonable" for this purpose, the Court may take into account the nature and extent of the assistance given. The operation of a term such as "unreasonable" or "unreasonably" has been considered in a number of cases. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, the House of Lords considered the extent of its operation. Their Lordships (see, eg, per Lord Salmon at 1070) adopted the view of Lord Hailsham of St Marylebone LC in Re W (An Infant) [1971] AC 682 at 700 that "two reasonable [persons] can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable …." and that "not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable". Their Lordships, in addition, saw the term as admitting of a wide scope of decision, by reference to the kinds of factors to which they referred, eg, central government policy, the will of the local authority (at 1048); the wishes of teachers and the effect of trade union pressures: see per Viscount Dilhorne (at 1061). In my opinion, the term should, in s 442B, be given a similarly wide operation and the scope of the factors open for consideration under it should be wide enough to include the factors here in question. Secondly, the draftsman provided in terms that, in deciding whether to reduce a sentence and the extent of any reduction, the Court "is required to consider", inter alia, the factors in s 442B(3) to which I have above referred. I have extracted from subs (3) the factors specified in the subsection which deal with the nature and extent of the assistance given and the consequences of it. It is clear from the terms of the subsection that it was the intention of the draftsman that the assistance given should remain a factor to be taken into account in deciding what, in the end, should be the sentence imposed. Accordingly, as far as concerns s 442B, the question which the Court must determine is whether, assuming the sentence to be "disproportionate to the nature and circumstances of the offence" it was so disproportionate to an extent that it was "unreasonably" so. …………………………………………………………………………… The section is in my opinion to be seen as accepting the discretion of the Court to reduce a sentence by reason of assistance to the authorities but as emphasising that the Court must, in the end, ensure that the sentence remains one reasonably proportionate to the offence……………………………... ." [at 314-316] 43 The decision in C was referred to with approval in R v Huang (1994) 78 A Crim R 111. The Court was constituted in that case by Gleeson CJ, Cole JA and Sperling J. Huang adds nothing to the discussion of principle which I have earlier quoted from the reasons of Mahoney JA in C; but it is both interesting and relevant in the present particular case to note the way in which the Court dealt with Mr. Huang. 44 Mr. Huang pleaded guilty to supplying not less than a large commercial quantity of heroin. He faced upon conviction a maximum penalty of, relevantly, imprisonment for life. He was sentenced in the District Court to a minimum term of imprisonment for 2-1/2 years, with an additional term of 3 years. The sentencing Judge said that in his Honour's opinion an appropriate sentence, but for assistance to the authorities, would have been imprisonment for 14 years; but that his Honour was proposing to reduce that putative sentence by 60 per cent because of exceptional assistance to the authorities. 45 Cole JA, who wrote the principal judgment of the Court, described as follows that particular assistance to the authorities: "That assistance has been of great value to both the State, federal and overseas authorities. It has resulted in the detection and arrest of persons who would otherwise have gone undetected. The prisoner has both offered to and has co-operated extensively with the authorities. His co-operation has resulted in the interception of significant quantities of heroin coming into this country. It has also resulted in the arrest of eight persons related to the drug ring and other associated drug activities. It has been put on behalf of the prisoner that the authorities have indicated that he is one, possibly one of the top three, of the most important informants who have assisted authorities in this State." 46 Cole JA then summarised as follows some of the consequences to that particular informer: "……. His life and that of his family has been placed at significant risk. His family living in Taiwan have received threats and the stress has resulted in his wife twice attempting suicide. A further consequence is that the prisoner is, and will for the whole of his sentence be, in strict protective custody. He will be deprived of the benefits and privileges which other prisoners receive whilst in gaol. On his release it will be necessary for him to remain in protection. It may be necessary for him to assume a new identity. The sentencing judge accepted that his life will be at risk indefinitely and certainly for some 10 to 15 years after his release. The gang of which he was formerly a member are known to pursue informers around the world with the aim of executing them." 47 Even in the face of assistance of which Cole JA later said that it had been "………… exceptional in its completeness and extent and ……… of great assistance to the authorities in stopping the importation of significant quantities of heroin into this country and in the arrest of various persons associated with drugs", this Court nonetheless set aside the sentence that had been passed in the District Court and substituted for it a sentence of imprisonment for 9 years, with a minimum term of 6 years and an additional term of 3 years. 48 The present applicant received, for an offence attracting a statutory maximum penalty of imprisonment for 5 years, a sentence of imprisonment for 16 months with a non-parole component of 12 months. For an offence attracting a statutory maximum penalty of imprisonment for 14 years, the applicant received a sentence of imprisonment for 5 years with a non-parole component of 3 years and 9 months. Those sentences are, in my opinion, markedly lenient sentences. They do not suggest to me that the learned sentencing Judge failed to give adequate consideration to, or to make adequate allowance for, the need to accommodate the requirements of section 23 of the Sentencing Procedure Act. 49 I would not uphold Ground 1. 50 Ground 2 is, put simply, a "fresh evidence" ground. It is convenient, in that connection, to begin by recapitulating the relevant legal principles. I take them from the judgment of McClellan CJ at CL, (Hulme and Hall JJ concurring), in Iglesias v R [2006] NSWCCA 261: "[8] The conventional approach of this Court when error is not suggested to have occurred in the original sentence is that evidence of events occurring subsequent to sentence will not be admitted, the appropriateness of the sentence being determined by consideration of the facts before the sentencing judge. As Street CJ said in R v Munday [1981] 2 NSWLR 177 at 178 with the concurrence of Moffitt P and Lee J: It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. 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. [9] See also R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328 at 330. [10] Notwithstanding this general approach this Court has determined that in exceptional circumstances, particularly where a medical condition which existed at the time of sentencing but has later been found to be extremely serious, fresh evidence may be received. That evidence may, in appropriate circumstances, cause this Court to intervene and re-sentence. The relevant principles were considered in R v Bailey (1988) 35 A Crim R 458 where an applicant said that he had shared needles with other remandees whilst waiting to be sentenced. A subsequent test showed that he was HIV+ although the disease had not been diagnosed at the time the applicant was sentenced. Lee J with whom Maxwell and Yeldham JJ agreed said (at 462): In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category." [11] In a decision of the Court of Criminal Appeal in South Australia, Smith (1987) 44 SASR 587, there was evidence before the sentencing judge that the applicant had tested positive for the HIV virus. However, King CJ, with whom Cox and O'Loughlin JJ agreed reopened the sentencing proceedings after having determined that events occurring after sentence showed the true significance of facts which were in existence at the time the sentence was imposed (see R v Ehrenberg (unreported NSWCCA, 14 December 1990)." 51 These statements of principle can be supplemented usefully for present purposes by the addition of the following excerpt from the judgment of Carruthers J, (Sheller JA and Sully J concurring), in Jones v R (1993) 70 A Crim R 449 at 456 et seq: "In my view the appropriate principle of law to be applied by this Court is as follows. The first question is whether, independently of the applicant's medical condition which, as I have indicated, was not known to the judge or the parties, the sentences imposed by …(the sentencing judge)… were within the sentencing discretion available to him. In my view this question must be answered in the affirmative. I consider the sentences imposed by the judge were perfectly appropriate in the circumstances. The second question is whether the additional evidence "should lead to the imposition of a sentence different from that imposed by the judge": see Eliasen (1991) 53 A Crim R 391 at 394. It is to this second question which I now turn. It is not without significance that the applicant contracted the virus whilst incarcerated and awaiting sentence. He came forward for sentence as a relatively young man with a deplorable record of sexual offences. His Honour's summary of the relevant facts of the subject offences is eloquent of the objective seriousness of his subject criminal conduct. He showed no apparent remorse and, as I have indicated, displayed no prospects for rehabilitation. I note that in Smith (at 589; 317), King CJ stated that the applicant in that case "had no relevant convictions prior to the subject offending and ought to be a good candidate for parole". In Vachalec [1981] 1 NSWLR 351 this Court was concerned with the relevance for sentencing purposes of the fact that the applicant suffered from an oesophageal obstruction for which he had required 109 admissions to hospital. Medical evidence was before the Court that the applicant required a severely restricted and specialised diet. The origin of the applicant's condition was the swallowing of acid during infancy. At 353-354 Street CJ, with whom Nagle CJ at CL and Lee J agreed, said: "This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government." 52 Carruthers J later noted a then recent decision of the English Court of Appeal: Starke (1992) 13 Criminal Appeal Reports (S 548). His Honour said: "An interesting English case in this context which has come to my attention since judgment was reserved in this matter is that of Starke (1992) 13 Cr App R (S) 548. That was an appeal from a sentence of four years imprisonment for possessing heroin with intent to supply. It would appear that by the time the appellant came forward for sentence the AIDS disease had developed. His life expectancy was very limited. Opinions varied between 12 months and two years. In dismissing the appeal, Jowitt J (with whom the Lord Chief Justice and Kennedy J agreed) said (at 549-550): "There is no doubt that the regime in prison bears hard on this man, and we have sympathy for his condition and sympathy for the effects of imprisonment upon him. What is urged upon us is that we should radically change an otherwise perfectly proper sentence by reducing the sentence in effect to allow this man's early release. That is because he wishes to be allowed to die with dignity and not in prison. We have every sympathy with that desire. It seems to us, though, that to manipulate the sentence to achieve such a result is not within the province of this Court. The matter can be tested in this way. Suppose a very long sentence of imprisonment were imposed, and during the course of that sentence the prisoner contracted some disease such as AIDS. If Mr. Allen's submissions were correct it would be open for such a prisoner to file a late notice of appeal and ask this Court to review the sentence. One has only to state that proposition to see that it is untenable. Moreover, although in the case of Herasymenko (unreported) an adjustment was made to the sentence as an act of mercy because of a heart condition suffered in that case by the appellant, what is being asked of us today is that we should radically change a perfectly proper sentence." And later: "In the view of this Court the sentence of four years imprisonment was a proper one. It is not for this Court to manipulate the sentence so as to achieve a desirable social end. Desirable though that is, that seems to us to be a matter for the exercise of the Royal Prerogative of mercy and not for us. The appeal is therefore dismissed." 53 The present applicant, in his evidence given during the proceedings on sentence gave the following evidence-in-chief: "[COUNSEL]: Q. I want to move now if I can to your general health, how would you describe it? A. I'm in fairly good health, yeah. Q In the past have you had any major illnesses of any sort? A. Yes, I have. Q. What have you had? A. I had a heart attack in 1993. Q. Where were you when that occurred? A. At Bathurst Correctional Centre. Q. What treatment did you receive? A. I was in hospital for a period of 14 days. I received - they done numerous tests on me at Orange and I think I was on medication for a while after that. Q. For how long? A. Not for very long. Q. You described it as a heart attack? A. Yeah. Q. Were you ever informed by a medical practitioner, whether general or specialist, about any future care you might need to take in relation to that? A. Yeah, I was told to change my diet and to lose weight, at that time I was pretty big. Q. As of today though, how would you describe your health? A. I'm fairly healthy but I still have - well I'm up for surgery soon in the next few weeks at Long Bay Hospital. Q. Is that in relation to something on your chest? A. No, it's in relation to something below - in between my stomach and bowel. Q. Have you been informed what that is? A. Yeah, it's a thing called a severe fissure. HIS HONOUR: Q. You said it's where? A. It's in between - it's at the top of my bowels. Q. And you're having surgery? A. I'm having surgery, yes, I've been told the other day. COUNSEL: Q. It's a fissure, is it? A. Yeah, something like that, yeah. Q. During this most recent stay whilst awaiting sentence, you had a difficulty with some lump growing beneath your left nipple, didn't you? A. That's right, yes. Q. On an earlier occasion, you had skin disorders in the forms of rashes and siriases for which you've been treated? A. Yes, I have siriases, yes. Q. Were you ever given any information by the justice health section as to whether that was caused by some infection or whether it just arose because of your general predisposition towards that type of irritation? A. I haven't sort of - they haven't got back to me about it. Q. But at the moment, as you say, your health is not too bad? A. Yeah, it's not too bad, yeah. Q. Have you been told what length of time you might spend in hospital for this impending surgery? A. Well it's actually surgery, so I've been told a few weeks. Q. Have you been given a timetable for when that will occur, when it's programmed to occur? A. Yes, within the next month or so, as soon as the surgeon is available they're taking me." [T21,22: 19.4.05] 54 There was no relevant cross-examination. 55 At the hearing before this Court affidavits were tendered both in the applicant's case and in the Crown case. It is convenient to consider them in sequence. 56 On 30 August 2006 an affidavit was sworn by Sophia Beckett, the solicitor having carriage of the present application on behalf of the applicant. The affidavit annexes three medical reports.

57 The first report is that of Dr. Jill Roberts. It is dated 8 July 2005. The report says, relevantly: "Mr. M is presently in B Ward, Long Bay Hospital. On 4th June 2005 Mr. M was diagnosed with squamous cell carcinoma of the anal canal. He is currently under the care of Associate Professor of Cancer Medicine, David Goldstein at Prince of Wales Hospital. He is soon to commence a course of chemotherapy and radiotherapy. Investigations so far have shown no evidence of metastatic disease. His treating specialist advises he has a 70-80% chance of being disease free at 5 years following treatment. There are however risks of major side effects including mucositis, neutropenia and consequent sepsis (infection) He is on Kapanol (opiate medication) for pain relief." 58 The second report is that of Associate Professor David Goldstein. Professor Goldstein reports, relevantly: "Mr. M is a 40 year old man with a biopsy proven squamous cell carcinoma of the anal canal. He gave an eight month history of rectal bleeding and was ultimately admitted to Bathurst Hospital and had a diagnosis made by Dr. Fingleton in June 2005. As a result of that diagnosis he went onto receive a definitive combination of chemotherapy and radiation with curative intent. This treatment involved 36 Gray of radiation delivered in 20 fractions, from the 19th July to the 16th August 2005, together with chemotherapy consisting of Mitomycin C and 5FU in week 1 and 5FU alone in week 4. He had an excellent response to treatment, with resolution of his pain and disappearance of tumour. His prognosis would be estimated to be an 80% disease-free five year survival and higher potential for cure. I have not seen Mr. Msince he left hospital and his subsequent follow up has been performed principally in the Department of Radiation Oncology, initially by Dr. Susan Carroll, and now since her departure by Dr. Stephen Thompson. Clearly Mr. M had significant problems during the course of treatment, with repeated admissions to the hospital prison ward and obviously quite significant discomfort towards the end of treatment and the first few weeks afterwards. I am unable to comment on any difficulties that he has had subsequently and whether there is any indication for remission of his sentence now, as I am unaware of whether there are any on going difficulties with his physical status and would recommend, for further more current details, you contact the Department of Radiation Oncology." 59 The third report is that of Lorna Watters, a resident medical officer at Blacktown Hospital. Her report is dated 23 March 2005. The report is brief and it states: "This man presented with a history of anal pain on defaecating for 6 months. This had become more severe in the past 2 weeks, and "unbearable" today, following a rectal examination last night He has also suffered from PR bleeds (bright red, fresh blood) about once a month. Over the past day he felt unable to defaecate due to pain. On examination he had a low grade pyrexia of 37.5. Systematic examination was unremarkable. PR examination revealed a probable fissure with granulation tissue. This was incredibly tender. He was reviewed by the surgical registrar, who agreed with the diagnosis of anal fissure. He was discharged with rectalgesic, metamucil and panadol for expected headache." 60 On 15 September 2006 the applicant himself affirmed an affidavit. As to diagnosis and treatment, the applicant deposes: "3. In early June, less than one month after sentence, I was diagnosed with squamous cell carcinoma of the anal canal. As part of my treatment I have undergone 20 courses of radiotherapy from 19 July to 16 August 2005 and two weeks of chemotherapy. 4. In June 2005, Doctor Fingleton from Bathurst Hospital said words to me to the following effect: "If you do not receive treatment immediately you may only live for 12 months". I was devastated by my diagnosis and feared that I may die in custody without my family, including my children near me. 5. At present I experience constant pain. I experience shooting pain in my anal canal where the radiation was directed, along with pain in my leg muscles. Going to the toilet is very painful. 6. When I was having the radiation and chemotherapy, I was given regular doses of morphine to help control the pain. I was on this pain control treatment for 8 to 9 months. 7. I was kept on the morphine for some time after completing my radiation treatment, but I asked the doctor if I could stop taking it because it made me drowsy and unable to function properly. The morphine also made me very constipated." 61 The affidavit goes on to describe various difficulties suffered by the applicant as an inmate of Kirkconnell Correctional Centre. 62 On 18 October 2006 an affidavit was sworn by Jennifer Ramsey, the solicitor having carriage of the present matter in the Office of the Director of Public Prosecutions. Miss Ramsey explains that on 17 October 2006 she caused to be sent to the Security Manager at the Kirkconnell Correctional Centre a letter drawing attention to various particular portions of the applicant's affidavit and seeking relevant information from the Correctional Centre. That letter drew a reply dated 18 October 2006 from the Deputy Superintendent and Manager of Security at Bathurst Correctional Complex. 63 This letter makes the following points: · There had been no cancellations of medical appointments for the applicant since he had been an inmate at the Kirkconnel Correctional Centre. On 6 October 2006 the entire Centre, containing some 240 inmates, had been locked up during the afternoon in order to facilitate arrangements for the transporting of the applicant to a medical appointment that had been scheduled for that afternoon at Bathurst Base Hospital. · The applicant was indeed rostered, as his own affidavit asserts, to the performance of various daily chores. The applicant is described as being "jovial, happy and appears very content". It is observed that his duties give him access to most of the camp, in the course of carrying out essentially non-demanding chores. It is observed, further, that "the job that he has is the kind of job other inmates envy, it is much sought after, cushy and non-demanding". · It is noted that no special dietary requirements had thus far been ordered by any doctor for the applicant. · An explanation is given of the shared toilet and showering facilities available at Kirkconnell. It is not necessary to go into the details. It is observed that if the applicant did in fact require three salt baths per day, as the applicant asserts in his own affidavit, then "……… he would not have been made medically cleared from the hospital or a recommendation being made by Justice Health". · As to a complaint made by the applicant in his own affidavit of hardship in getting out of bed within a maximum of 15 minutes in order to answer a morning muster, it is observed that if the applicant does indeed have the problems that he claims, then "….. notification from Justice Health to management of this Centre would ensure he received consideration when being accounted for" 64 The Deputy Superintendent's response to Miss Ramsey concludes with the following observations: "Further to claims that I have seen in the affidavit, it would appear to me that Mr M is relying on issues earlier on in his condition and at other Centres. Kirkconnell is a Minimum Security (C1, C2 & C3) category inmate Centre. It is in an isolated position off of the Great Western Highway contained within Picturesque Gardens and containing a Heritage Trust Grand Building from circa 1880. It would be one of the Department's show pieces of minimum security living. Consultations with Justice Health indicate that inmate M is not issued with any pads for loss of blood conditions nor has he reported a need for such. He has not approached to purchase pads from either of the 'Buy Up' Processes available to him, neither has he mentioned to myself or other officers a need for pads. From my observations of M, he is coping well with the condition I am assured he has, and demonstrates no difficulties in coping. He does require frequent Check Ups by specialist doctors as and when arranged." 65 On 23 October 2006 the applicant affirmed a further affidavit. The applicant affirms, among other things: "3. I was recently diagnosed with cancer and received treatment. At the end of the treatment I was in remission. I had to have a monthly blood test to monitor the possible return of cancer. This test checks for elevated blood cells. 4. In late September or early October I received my blood test results and was told that the count of blood cells was elevated. This means that the cancer has returned. The normal count of cells is 3.3 RHM and my results showed 5.8 RHM, which shows a positive result for cancer. 5. As a result of this diagnosis, on 6 October 2006 I was rushed to Bathurst Hospital for a CTC scan to try and locate the cancer. My lungs, kidney and liver were checked but the doctors were unable to locate the cancer. 6. Sometime in the next two weeks, I will be having a colonoscopy under general anaesthetic to try and locate the cancer. The colonoscopy is a monthly procedure for me. If the cancer is located I will be starting radiation and chemotherapy within one week. 7. Having gone through this treatment before, I am very familiar with its side effects and difficulties. 66 The applicant goes on to explain his previous experiences in the matter of side effects and associated difficulties. It is not necessary to traverse the entirety of what he says in those respects. It is sufficient to understand that the side effects and consequent difficulties, as the applicant goes on to describe them in his affidavit, are undoubtedly severe and unpleasant. The applicant goes on to explain how any transfer to Long Bay will involve him in a painful and distressing transit; and incarceration in a distinctly unsympathetic environment while he is awaiting a formal admission into the Long Bay prison hospital. The following paragraph in the affidavit summarises the picture that the applicant seeks to paint: "I am devastated to find that I have cancer again and that I will have to go through all the treatment procedures once again. It is worse this time around because now I know what I will be going through, all the pain and sickness. I was starting to gain weight and feel better. I once again will not be able to have my family's support while I am going through radiation and chemotherapy. I am scared that I will die in gaol alone and without my family around me." 67 On 25 October 2006 the applicant affirmed a further affidavit. In this affidavit the applicant seeks to take up the points made by the Deputy Superintendent in the latter's affidavit to which I have earlier herein referred. It is sufficient for present purposes to observe that the applicant does not join issue with the Deputy Superintendent on any of the things said by the latter. The applicant seeks, rather, to re-focus his complaints onto his conditions whenever he is incarcerated, not at Kirkconnell, but at Long Bay. 68 On 25 October 2006 an affidavit was affirmed by Miss Lynda Davids, the solicitor having present carriage of the applicant's matter in this Court. This affidavit reports on some relevant discussions had by the deponent with Associate Professor Goldstein; and it annexes as well a number of medical reports. 69 As to the contacts with Associate Professor Goldstein, the deponent states: "5. I informed Dr. Goldstein of the applicant's recent blood test results and the tests he is currently undergoing. 6. Dr. Goldstein said to me words to the effect of, "I am concerned at the inappropriate management of Mr. M. Mr. M should be having follow-ups every three months by the radiation specialist who treated him before. The anal carcinoma that Mr. M suffered from is a rare malignancy that requires specialised management and follow up". 7. Dr. Goldstein also told me that the correct investigations that should now be performed are an anorectal ultrasound and internal examination. He said that the recent blood test Mr. M had to identify CEA (bowel cancer tumour markers) is not very useful in light of Mr. M's history and nor is a colonoscopy likely to assist diagnostically. 8. The Applicant has instructed me that he intends moving to Gosford when he is released. I asked Dr. Goldstein whether suitable medical facilities would be available in Gosford to properly manage the Applicant's health. Dr. Goldstein said that the oncological facilities in Gosford are very good and would be appropriate for the Applicant's condition." 70 Five reports are annexed to the affidavit. 71 The first of them is a report dated 8 July 2005 from Dr. Jill Roberts. The relevant portions of this report have been earlier herein quoted. 72 The second report is one from Justice Health. It is dated 23 June 2005. The report concerns treatment of the applicant following his admission to B Ward at Long Bay Correction Centre on 11 June 2005. The discharge summary says, relevantly: "Admission Date- 11th June 2005 Operation - 14 June 05 "This patient was found to have had an SCC of his anus in Bathurst Hospital and was transferred to POWH for further assessment. He had reported symptoms of the condition for some 7 months prior to his admission…………………………………….. Following all of this as the patient was systemically well, independent in activities of daily living and not requiring any special care in B ward he was discharged on a medical hold to Area 2 LBH from where he can attend for his outpatient radiotherapy treatments." 73 The third report is that of Lorna Watters of Bankstown Hospital. It is dated 23 March 2005. The relevant contents of it have been earlier herein quoted. 74 The fourth report is that of Associate Professor Goldstein. It is the report dated 27 January 2006, relevant portions of which have been earlier herein quoted. 75 The fifth and final of the annexed reports takes the form of three pages of blood test results taken at the Kirkconnell Correctional Centre on 19 and 20 September 2006. It is not easy to make any particular sense of the figures that appear in those results; but I infer that they support generally the things said by the doctors and other specialists who have attended the applicant. 76 On 26 October 2006 Miss Ramsey, the solicitor having carriage in the Office of the Director of Public Prosecutions of the applicant's matter, swore a further affidavit. Annexed to this affidavit is a further report from the Deputy Superintendent and Manager of Security at the Kirkconnell Correctional complex. This report is dated 25 October 2006. It responds to the two further affidavits affirmed by the applicant, and forwarded by Miss Ramsey to the Deputy Superintendent for his comments. The Deputy Superintendent takes issue, and sometimes quite sharp issue, with various complaints made by the applicant; but the really significant portions of what he has to say are the following: "M. was not rushed to Bathurst Base Hospital whatsoever. When I took up my posting at Kirkconnell on 11th September 2006, the Nursing Unit Manager indicated to me various Medical Bookings she had in Bathurst for inmates. M was one of these, for a routine CT scan in relation to a previous medical condition which I am now aware was a cancer related illness.

RNM v Regina

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Judgment (21 paragraphs)

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