Held: no error made by the learned sentencing judge - health of an accused is one factor only to be taken into account in sentencing - non parole period of two years at the lower end of the scale - Appeal dismissed. R v Smith (1987) 44 SASR 587, applied. Norbury Colin McDonald (1988) 38 Aust Crim R 470; Wayne Peter Jones (1993) 70 Aust Crim R 449 and Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 62 ALJR 319, discussed.

HRNG ADELAIDE, 21 September and 24 November 1994 #DATE 20:12:1994

JUDGE1 MILLHOUSE J This matter has an unusual feature. The appellant pleaded guilty, on 11 October 1993, to 43 counts of defrauding the Commonwealth. He had been a public servant in the Department of Employment, Education and Training and had taken a total of $104 578. During submissions his counsel, tendered to Judge Pirone four medical reports which shewed the appellant had AIDS.

2. In his sentencing remarks, on 14 December, Judge Pirone said:- "There is no doubt whatsoever in my mind that you are, indeed, in very poor health. You have recently been classified as being in the final stage of the HIV infection. Your disease is terminal. Your medical condition is dire. ... Your life expectancy is short. You have become convinced that your death is imminent. The medical evidence which has been made available to me confirms that that is so. Your

counsel puts your life expectancy in the range of six to nine months at the most...

I accept your counsel's advice that, if released, you intend to be readmitted to hospital and bear in mind that, having done so, you do not expect to be discharged other than for the ultimate purpose. ...

You have urged me not to imprison you thereby subjecting you to stress with the result that your death will be hastened thereby. I accept that there is a real possibility that if you were to be imprisoned for any period of time at all you would probably end your last days on this earth in gaol.

You have expressed a wish to be allowed to return to Sydney and to end your life in dignity, supported by your wife and child. ...

You are already under sentence of death and of imminent death at that. I do not propose to hasten the end. I think that you deserve to have your wish granted."

3. The learned judge sentenced the appellant to four years imprisonment but suspended it.

4. The appellant's sad circumstances subsequently received quite a lot of publicity: I remember myself seeing something on the television. The publicity was, as it happened, bad luck for the appellant. It soon came out that he was not nearly as sick as he claimed and worse still, that he had forged two of the medical reports and altered the other two to make it look as though he was sicker than he really was.

The appellant appeared before Judge Burnett on 17 February to be sentenced again. On that day he also pleaded guilty to four counts of knowingly making use of fabricated evidence. The learned judge therefore had to deal with the appellant not merely for the original frauds on the Commonwealth but for fabricating evidence as well.

In his sentencing remarks on 28 July Judge Burnett said:- " ... when you appeared before Judge Pirone, you were HIV positive but your health was nowhere near as bad as the reports indicted and the diagnosis and prognosis were also not nearly as bad as you pretended that they were. ....

There can be no doubt that you have what the report describes as moderately progressed HIV infection. ...

The only appropriate penalties are significant terms of imprisonment. I think that you realise that suspension of sentence is out of the question. I am not prepared to allow your health to be seen as a licence to commit crime and, in addition, the gravity of the offences makes suspension inappropriate in my view."

The learned Judge sentenced the appellant to four years imprisonment for the frauds and two years for fabricating evidence, to be served cumulatively. He fixed a non parole period of two years. The sentence began on the 17 December 1993 since when the appellant has been in custody. The offences being Commonwealth ones, there are no remissions as there would have been for State offences, the sentences being imposed just before the Truth-in-Sentencing Act came into operation.

The Grounds of Appeal are that "the non-parole period is manifestly excessive" and that, "In fixing the non-parole period the Learned Sentencing Judge gave too little weight to the applicant's state of health."

Mr Gordon Barrett for the appellant, on 21 September, told us that what had been untrue when the appellant fabricated the evidence "had subsequently become true" by then: the disease had progressed.

Mr Barrett tendered, with the consent of Miss Elizabeth Bolton for the Crown, a report dated 21 September from Dr David Shaw, Director, Infectious Diseases Unit, Royal Adelaide Hospital. This is how Dr Shaw summarised his opinion:- "... there is clear evidence at this point that Mr Sutherland has progressive HIV infection and has moderately compromised immune responses as evidenced by herpetic infection and current CD4 count. The prognosis as regards development of AIDS therefore is somewhat guarded at this point. It is possible that Mr Sutherland may progress to AIDS within the next few months or within the next 2-4 years. Once AIDS has developed the median survival is approximately 2 years."

Mr Barrett used Dr Shaw's report to support his submission that the appellant is getting worse: the sentences imposed may mean that his client is imprisoned for the rest of his life.

Mr Barrett also sought to put before the Court evidence of the difficult time the appellant has had in custody since sentence: he applied to call a social worker for that purpose. We were not prepared to hear the evidence. The learned Chief Justice, speaking for the Court, said:- "Mr Barrett for the appellant seeks to lead evidence in this Court of Criminal Appeal from a social worker Anita Micallef, as to certain experiences of the appellant in prison since his sentence and certain matters relating to the management of the appellant in prison in consequence of those experiences and the apprehension of like experiences.

The function of this court of criminal appeal is to decide

whether the sentence imposed by the sentencing judge was correct. That decision is made upon the material which was before the sentencing judge subject to the admission of evidence which is properly admitted under the rules relating to the admissibility of fresh evidence.

In the opinion of the court, the evidence proposed to be led as to the experiences of the appellant in prison and his consequent management in the prison system do not fall within those rules. They are not relevant to the issue which this court has to decide. I make the point in that regard - that the evidence which is sought to be adduced is

not evidence that the appellant's health has suffered in consequence of his experiences in prison, but nor is it evidence that his state of health has produced adverse consequences in consequence of his confinement. The evidence relates, in substance, to his experiences in prison and tends to suggest that imprisonment might bear more heavily upon him by reason of the attitude of fellow prisoners to him.

In our view, that evidence is not relevant to the issue which this court has to decide and it would be wrong for us to admit it. The evidence is therefore rejected."

Mr Barrett told us that his client had recently had several tests but the results, which were likely to shew whether he had progressed to full blown AIDS, would not be available for some weeks. As the extract from Dr Shaw's report which I have quoted shews, Dr Shaw on 21 September was "guarded" as to prognosis.

We therefore adjourned further hearing to await the result of the tests and resumed on 24 November. Mr Barrett then tendered Dr Shaw's latest report, of 1 November 1994. This is how Dr Shaw described the appellant's condition:- "At this stage there is no evidence that Mr Sutherland could be classified as AIDS, although this classification is somewhat arbitrary. There is clear evidence that he has HIV infection which is moderately advanced, but not to the stage where he is likely to suffer overwhelming opportunistic

infection within the next few months. There is no doubt, however, that his infection will progress to the point of severe debility and serious, life-threatening opportunistic infection. The time period over which this will develop cannot be predicted at this stage."

I interpret that to mean not much change for the worse between 21 September and 1 November.

The core of Mr Barrett's argument was that the appellant should, if not have the sentences suspended, at least have a shorter non parole period, so as to reduce if not avoid altogether the risk of the appellant dying in gaol.

The courts have been faced with this grievous dilemma before. In R v Smith ((1987) 44 SASR 587) (the appellant was HIV positive) the Chief Justice said (at 589):- "How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

The High Court, in Bailey v Director of Public Prosecutions ((1988) [1988] HCA 19; 62 ALJR 319) approved the principle in R v Smith. It has since been followed by the Court of Criminal Appeal (NSW) in two other cases. Roden J in Norbury Colin McDonald ((1988) 38 ACR 470) referred to it with approval and said (at 474), "Really the so-called AIDS factor is merely a specific application of a general principle relating to the ill health of a sentenced person." The other decision is Wayne Peter Jones ((1993) 70 ACR 449).

Ill health of any kind may not be used as a licence to commit crime and then to get away with it. A person's health is merely one factor to be taken into account in fixing penalty, together with other factors.

This appellant, in common with other AIDS sufferers, faces a grim future. Would that something may soon be found to cure this frightening and dreadful disease] Yet the sympathy one must feel for this accused on this account does not, I am afraid, entitle him to succeed on this appeal.

The only way in which AIDS or any other illness may properly be taken into account is by extending more leniency than otherwise might be shewn to a prisoner. The learned sentencing Judge has done that: as he said, rightly in my view, there is no question of suspension and the non parole period fixed is already a most lenient one. We would not be justified in interfering either with the head sentences which were well within range for the offences the appellant committed nor with the non parole period.

JUDGE2 KING CJ I agree that this appeal should be dismissed for the reasons given by Justices Millhouse and Perry.

JUDGE3 PERRY J This is an appeal against a sentence of six years imprisonment, with a non-parole period of two years, imposed in the District Court following the appellant's plea of guilty to 43 counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act, and four counts of knowingly making use of fabricated evidence contrary to s.36(b) of the same Act ("the Act").

The offending relating to the defrauding counts began in July 1992 while the appellant was working with the Department of Employment, Education and Training. One of his tasks was to administer moneys which were to be used for Social Security benefits. The appellant claimed and received payments for fictitious employees on behalf of non-existent companies, falsely pretending that each of them was a participant in the Department's Job Start scheme.

Over a period of nine months the appellant defrauded the Commonwealth of 28 cheques to the value of $104,578, which he used for his own benefit.

Submissions were made by counsel on his behalf on 13 December 1993 before Judge Pirone, with respect to the 43 fraud counts. The other four charges had not, at that stage, been laid.

The appellant, who was then 29 years of age, admitted the contents of an antecedent report which indicated that he had been convicted in a court of petty sessions in Perth in 1983 on 50 counts of false pretences, upon which he was released on probation. In 1985 he was sentenced to a total of three years imprisonment on charges of breaking and entering and stealing, and breach of probation. In 1988 he was convicted of a further five counts of false pretences, upon which fines were imposed. In Adelaide Magistrates Court, in August 1991, he was convicted of larceny and fined $20.

The appellant's counsel tendered four medical reports which suggested that the appellant was not only suffering from the HIV virus but that the HIV infection was well advanced; that the appellant's T cell count was low; that he was sero converting; and that he may have been suffering from full-blown AIDS. It was submitted that, given the state of the appellant's health, the Judge should suspend any sentence imposed, despite the serious nature of the offending.

On 14 December 1993 Judge Pirone sentenced the appellant to four years imprisonment with a non-parole period of 18 months, suspended upon the appellant entering a good behaviour bond for a period of 24 months. During the course of his sentencing remarks, he said: "There is no doubt whatsoever in my mind that you are, indeed, in very poor health. You have recently been classified as being in the final stage of the HIV infection. Your disease is terminal. Your medical condition is dire. Recently, you have been admitted to St Vincent's Hospital in Sydney because of possible cerebral toxoplasmosis, an opportunistic infection secondary to impaired immune functioning. You have been suffering with severe head and back ache consistent with meningitis. Your life expectancy

is short. You have become convinced that your death is imminent. Medical evidence which has been made available to me confirms that that is so. Your counsel puts your life expectancy in the range of six to nine months at most. ..... The evidence before me leaves me in no doubt that there is an undeniable risk that the stress associated with any term of actual imprisonment will unquestionably cause a further deterioration in your condition, thereby accelerating the inevitable end result."

He went on to say: "I am satisfied on the evidence before me that there is a real danger that any period of custody will have the result of completely destroying the already ruined life of a relatively young person whose chosen way of life is surely to have adverse effects upon his soon-to-be widowed wife and orphan child."

On the very next day, that is, 15 December 1993, the Crown asked the learned sentencing Judge to recall the sentence on the basis that two of the medical reports put before him had been fabricated, and that the other two had been tampered with, so that Mr Sutherland's condition appeared worse than it was.

A new information was laid charging four counts of knowingly making use of fabricated evidence under s.36B of the Crimes Act 1914.

On 17 December 1993, in response to that application, Judge Pirone recalled the sentence which he had imposed. Subsequently, after hearing further submissions, another Judge of the District Court imposed the sentence now under review. The learned Judge sentenced the appellant to four years on the 43 counts of defrauding the Commonwealth, to be served cumulatively on a sentence of two years imposed on the four counts of knowingly making use of fabricated evidence.

When fixing the non-parole period, the learned sentencing Judge said: "I fix a non-parole period which will be much shorter than otherwise would be the case because I accept your counsel's submissions that imprisonment will be a greater burden on you because of your health and because I think that it may be that imprisonment could have an adverse effect on your health, although, I say again, your condition can be managed very adequately in prison".

In his appeal to this Court, the appellant complains that the non- parole period is manifestly excessive, and that in fixing it, the learned sentencing Judge gave too little weight to the appellant's state of health.

After the appeal was first called on, it was adjourned to enable counsel for the appellant, Mr Barrett, to obtain a further medical report. That report, which followed further medical testing of the appellant conducted during the period of the adjournment, did not support the appellant's submissions that his condition was deteriorating and has worsened since the sentence under review was imposed. The report is guarded. Its author, Dr David Shaw, director of the Infectious Diseases Unit of the Royal Adelaide Hospital, confirms the presence of the HIV infection, but the appellant has not yet developed full-blown AIDS. While it is likely that it will develop eventually, the period of time involved cannot be predicted at this stage.

Against that background, it is necessary to consider whether the non-parole period is manifestly excessive.

The Court was referred to the observations of King CJ (with whom the other members of the Court of Criminal Appeal agreed) in R v Smith 44 SASR 587 at 589: "Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

In Norbury Colin McDonald (1988) 38 A Cr R 470 the Court of Criminal Appeal of New South Wales made observations to the same effect.

What is clear from the authorities is that there are no special rules applicable to victims of the AIDS virus. Sufferers from AIDS are to be dealt with in accordance with the general principles which find expression in Smith (supra).

It is clear from the passage which I have cited from the learned sentencing Judge's remarks on sentence that he understood and applied those principles in setting a lower non-parole period than otherwise would have been the case.

Systematic fraud by persons holding public office falls into a serious category of offending, normally calling for a substantial custodial sentence. In R v Nath (Court of Criminal Appeal, 22 July 1994, unreported) this Court observed (see Perry J, with whom King CJ and Prior J agreed): "A breach by persons holding public office of the duty to act honestly in the performance of their public duties is a most serious matter which should ordinarily attract a substantial penalty."

In my opinion, bearing in mind the seriousness of the offence, the appellant's prior record, and the nature of the medical evidence, a non-parole period of two years was within modest limits. No case has been made out for this Court to interfere with the sentence.