(2011) 209 A Crim R 502
Turkmani v R [2014] NSWCCA 186
Source
Original judgment source is linked above.
Catchwords
(2011) 209 A Crim R 502
Turkmani v R [2014] NSWCCA 186
Judgment (6 paragraphs)
[1]
Judgment
MEAGHER JA: The applicant seeks leave to appeal against a sentence imposed by Hanley SC DCJ on 14 December 2020. He does so on the ground that his sentence "should be reduced having regard to the fresh evidence regarding his medical condition and availability of treatment in custody". In doing so, he seeks the exercise of this Court's power under Criminal Appeal Act 1912 (NSW), s 6(3).
The applicant pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), namely of supplying a large commercial quantity of a prohibited drug. The relevant drug was 1,4-Butanediol. On each occasion the drug supplied was to an undercover police officer. The first offence occurred on 9 September 2019 and involved a total of 100.35kg and the second on 16 November 2019 involving a total of 103.77kg. For each offence the standard non-parole period was 15 years.
He was arrested on 19 November 2019 and remained in custody bail refused at the time of his sentencing following his guilty pleas. The sentencing judge imposed an aggregate term of imprisonment of 8 years commencing on 19 November 2019 and expiring on 19 November 2027. The aggregate non-parole period was 4 years to commence on the same date.
More than two years before the offending occurred, the applicant underwent the attachment of a colostomy bag as a result of a bowel obstruction caused by ulcerative colitis. Long term it was proposed that the colostomy bag would be reversed by surgery involving two stages, the first a "completion proctocolectomy with defunctioning ileostomy" and the second a "reversal of ileostomy".
The applicant seeks to adduce 'fresh' evidence as to the continuing availability of that reversal surgery. The provisional basis on which the Court must assess that evidence was summarised in Hoang v R [2020] NSWCCA 324 at [16] (Payne JA, Beech-Jones and Fagan JJ) as follows:
(1) whether it is truly "fresh", that is, evidence that was undiscoverable at the date of the sentence proceedings and could not have been adduced at that time and that is capable of affecting the outcome;
(2) if so, whether the Court should act upon the evidence by way of exception to the general principle that the Court's appellate function restricts it to a review of the sentencing decision on the basis of the facts as they existed when sentence was passed and
(3) whether the evidence or any part of it is merely "new evidence", that is, evidence that could with reasonable diligence have been adduced before the sentencing judge but was not so adduced.
The evidence falls into two categories. The first is medical evidence from the applicant's treating doctors as to his current condition and the availability/advisability of reversal surgery. The second is factual evidence as to the conditions he has encountered in managing his medical condition whilst in custody. All of this evidence is 'fresh' in the sense that it speaks as to events which have happened or constitutes medical opinions provided since the date of his sentencing. Whether the Court can and should act on that evidence to review the sentencing decision is the issue in this application for leave to appeal and appeal.
In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 502 at [110], Simpson J (as her Honour then was) observed that a fundamental precondition to the exercise of the Court's power under s 6(3) is that some other sentence "is warranted in law and should have been passed". This requires there be some error identified either in the sentencing process or in the outcome of the sentencing process. Generally that will not be the case merely because of the occurrence of subsequent events or circumstances impacting on the sentence which were not and could not have been taken into account at the relevant time.
However, the position is different if those subsequent events or circumstances cast "new light on circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing" (JM v R [2008] NSWCCA 254 at [26] per Simpson J).
In Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [66], Beech-Jones J (as his Honour then was), Hoeben CJ at CL and Hamill J agreeing, gave three examples of sentencing appeals where further evidence was received and taken into account:
Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ("Iglesias"); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ("Springer"). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id).
The third is closest to the circumstances for which the applicant contends, but only as they relate to the availability of stoma reversal surgery whilst the applicant remains in custody. The applicant does not rely on any change of circumstances as they relate to the management of his medical condition whilst in custody.
The applicant says that he was sentenced in the expectation that he would have facilities available to him in custody to pursue stoma reversal surgery which were "commensurate with those available to persons in the wider community". He submits that the position in that respect now is that he cannot have that surgery whilst in custody.
[2]
Difficulties encountered in managing medical condition whilst in custody
Before addressing that question, something should be said about the applicant's evidence as to difficulties he has encountered in managing his medical condition in custody. In oral argument, it was accepted that "the day-to-day things that Mr Wentworth talks about in terms of managing his condition" were taken into account by the sentencing judge, who "made a significant allowance [for that] by way of special circumstances".
In his remarks on sentence the sentencing judge considered the various aspects of the hardship which the applicant would undoubtedly confront in custody as a result of his having a colostomy bag and the additional stoma care and supplies he would require. The evidence included, as the sentencing judge recorded, that the applicant had already experienced:
…significant difficulties in the Corrective Services environment which are graphically portrayed by him in his life story. He has set out in detail various examples of the impact it has had, not only in relation to obtaining consistent medical treatment in relation to addressing it, obtaining colostomy bags when required, but also the response by fellow prisoners which has been disappointing and extremely traumatising to him.
The difficulties which the applicant refers to in his further affidavit evidence are described in his diary notes which are annexure A to his affidavit of 14 October 2022 and are of a similar kind. They include occasions when he says he has been separated from or unable to access the ongoing medical supplies he requires, including colostomy bags. His evidence suggests that there have been similar difficulties since his sentencing, and especially as a result of continuing COVID-19 lockdowns. It is not necessary for this Court to determine the extent of those difficulties and whether they have been to any extent exaggerated, as the Crown suggests.
The presently relevant matter, which is not controversial, is that the sentencing judge took the likelihood of such ongoing difficulties into account in making a significant allowance for special circumstances and setting an aggregate non-parole period of 4 years, in an overall sentence of 8 years. The relevant sentencing remarks are extracted at [18] below.
The applicant's counsel relied on this further evidence of the applicant's "history of managing in debilitating circumstances his stoma bag" as supporting the likelihood that if the surgeons were prepared to undertake the reversal surgery, he would embrace it to alleviate or reduce the stigma and embarrassing situation he must face from day to day. That may be so. However, as the evidence shows, the applicant's surgeons are not at present prepared to undertake the surgery until his weight is reduced.
[3]
Evidence at time of sentencing as to availability of stoma reversal surgery whilst in custody
Returning to the question as to whether the circumstances on which the applicant was sentenced have materially changed, the evidence taken into account by the sentencing judge included a report of Dr Jacques Ette dated 27 November 2020. His position was then and remains Staff Specialist - Primary Care in Justice Health NSW. This report took account of the applicant's history from when he was taken into custody in November 2019:
While in custody, Mr Wentworth presented twice with pain around the Stoma. He was transferred to Concord Hospital for specialist care. He was reviewed by the Stoma Clinical Nurse Consultant (CNC) during his admission. He did not have an infection or bowel obstruction and no cause for his pain was found.
He was referred to a Colorectal Surgeon, the appointment was cancelled by the surgeon due to COVID-19. He is due to see the surgeon for stoma reversal at the end of this month. The Network is providing the stoma care and supplies to the patient. There were no issues with the stoma.
On 31 July 2020 Mr Wentworth was seen by the Primary Care Medical Officer in relation to pain in his right shoulder. Mr Wentworth was referred to the Network Physiotherapist and has received treatment on numerous occasions. His shoulder has since improved.
The Network provides Mr Wentworth with Colostomy bags and accessory.
The Network clinical staff review his stoma regularly.
The Network referred Mr Wentworth to a colorectal surgeon for ileostomy reversal.
He was treated by the Network Physiotherapist in relation to shoulder pain.
He was assessed by the Clinical Nurse Specialist in relation to his depression.
It is the position of the Network that services available to those in custody are commensurate with those available in the wider community.
In his remarks on sentence, the sentencing judge dealt with this aspect of Dr Ette's report and his statement as to the capacity of Justice Health as follows:
Dr Ette has not seen Mr Wentworth and has relied upon various notations as set out in the Corrective Services physical health network, although on the evidence before me I must accept [his] advice despite some reservations I have about the capacity of Justice Health at times to deliver its promises in dealing with prisoners who have substantial medical issues in custody.
On the basis of the material before me, however, it would appear any issues in relation to him potentially undergoing future surgery can be addressed by that organisation through the public health system. I understand it is his desire now, contrary to his position in 2017, to undertake that operation.
On all the evidence before me it is apparent, however, that, irrespective of that possibility, his time in custody is going to be substantially more hard than those who do suffer from that disability and the consequential stigmatisation that he has been subjected. I accept his observations that his experience has been beyond difficult and degrading, as identified by Dr Nielssen in his report (page 3).
In addition, during the time he has been in custody this year he has been subjected to the restrictions, as have all other prisoners, which has increased their hardship in custody. That is as a result of the strategies employed by the Corrective Services to deal with the pandemic in which there have been long periods of lockdown for prisoners in their cells, limited programs and no direct visitation.
I note his parents have had difficulty in seeing him. I am satisfied that is a significant factor to be taken into account. Mr Issacs, who appears on behalf of the Crown, does not challenge its impact but recommends I accept it is more properly addressed in assessing special circumstances in respect of the sentence to be imposed.
(emphasis added)
[4]
Has the availability to the applicant in custody of stoma reversal surgery changed?
The applicant says that the sentencing judge proceeded on the basis that there was a capacity for him safely to undertake stoma reversal surgery whilst in custody. That is undoubtedly correct. He submits the position is now significantly different, and that it is unlikely that he could safely undertake stoma reversal surgery whilst he remains in custody.
In doing so he relies on the following reports and medical advices. They strongly support the conclusion that it is unlikely the applicant could safely and successfully undertake such surgery having regard to his present physical condition. That is so irrespective of whether the surgery is to be undertaken whilst he is in custody or released from custody. The applicant's medical advisers also recommend that ideally "the operation should be performed when he has optimal social and family support networks readily available". That could not be the case whilst he remains in custody. However, the position remains that surgery in custody is available to the applicant.
The applicant's colorectal specialist is Dr Kheng-Seong Ng. Dr Ng reviewed the applicant at the Silverwater Correctional Centre in mid-February 2022. In his report dated 1 March 2022 Dr Ng noted at the outset that in determining how best to proceed with any stoma surgery, a relevant and related condition to be considered was the applicant's current weight of 140kg. His report continued:
I had the opportunity to reiterate a lot of what [the applicant] has probably been counselled towards previously regarding pouch surgery. I explained to him that the surgery would involve removing his residual colon and rectum down to his anus with the intention of creating a J-pouch with small bowel to joint to the anus. In the initial period this anastomosis would need to be defunctioned with a temporary ileostomy but the intention would be for him to have full restoration of gastrointestinal continuity in the long term.
I spent most of the discussion, however, emphasising the gravity of the operation to [the applicant]. This is an operation that has potential for major complication, which includes, but is not limited to, bleeding, sepsis, anastomotic leak, DVT/PE, urinary complications, and wound complications. I explained to [the applicant] there is also the possibility that, given his body habitus, that I perform a completion colectomy only to find that the pouch will not reach and in that circumstance he will require an intersphincteric resection of the sphincter complex resulting in a permanent end ileostomy. I also counselled [the applicant] towards the possible outcome of pouch dysfunction with evidence suggesting that 10% of pouch patients suffer pouch failure.
The importance of me having a discussion with [the applicant] about this is to emphasise that from a surgical viewpoint, his surgery is possible, but I think that this is the type of operation that would ideally be performed when he has optimal social and family support networks readily available to him. At the current point in time, being an inmate in jail, if he runs into any problems, it would be a big ordeal for him to seek medical help. I am therefore very hesitant to recommend rushing into surgery in his current social circumstance.
(emphasis added)
Nowhere in this report does Dr Ng, in recommending a preferable or ideal way forward, say that it would not be possible for the applicant's surgery to be performed whilst he was in custody.
Dr Ng arranged for the applicant to seek a second opinion from Associate Professor Matthew Rickard at the Concord Hospital Colorectal Clinic, and sent a copy of his report to Dr Sudarshan Paramsothy at Concord Hospital.
Earlier and on 24 November 2021, Dr Paramsothy had reviewed the applicant's condition, and a report dated 9 December 2021 recommended:
…
2. Await Colorectal Clinic review February 2022 and plan for completion proctocolectomy + J pouch formation.
3.Will likely require weight loss strategies prior (currently weighs 140kg) - referral made to Endocrine/Weight loss Clinic; patient refused dietician input as he has a background in food sciences and felt this would be non-contributory.
On 3 June 2022 the applicant saw Dr Paramsothy and Dr Aviv Pudipeddi at the Inflammatory Bowel Disease Clinic at Concord Hospital. In Dr Pudipeddi's report of the same date and addressed to the Dawn De Loas Correctional Centre, he noted that there had been discussions between the applicant and Dr Ng, and continued:
… There are concerns for the operation and post-operative recovery in [the applicant's] current circumstances whilst incarcerated. We have discussed with [the applicant] about this being an important operation and to try and optimise all factors including the ability to seek medical care urgently and have ready access to medical therapy if required. I note he is due to have a second opinion from Dr Matt Rickard which we will await. We do support Dr Ng's opinion and will await further outcome from their discussion.
Finally from the perspective of the applicant's treating and consulting doctors, Dr Rickard wrote a report to Dr Paramsothy dated 14 July 2022. Having described the applicant as "currently obese and weighs 150kg", he said:
Performing a J-pouch in a 150kg man is difficult because it is sometimes difficult to make the pouch reach to the pelvic floor and it is also difficult to make a defunctioning ileostomy because of the size of his abdomen. I have explained this in great detail to [Mr Wentworth]. I have said to him that if he could lose 50kg and finish his incarceration that would be the perfect time to do his J-pouch. I do not think it is practical to do anything now whilst he is in jail. I think this pretty much echoes what Dr Kheng-Seong said when he saw him as well.
Dr Ette prepared a second report in response to the current application. That report, dated 17 November 2022, considers whether "services are available to Mr Wentworth to address any possible post-operative issues should they arise following stoma reversal". In doing so, it focusses on the remarks made by Dr Ng in his report of 1 March 2022 extracted at [21] above. His evidence, which was not challenged by cross-examination, was that if the applicant undertook the remaining two stages of the stoma reversal surgery in the public health system and whilst still in custody, he would be admitted to the Prince of Wales Hospital and would likely have the surgery as a public patient. He continued:
[The applicant] will remain in the hospital until discharged by the treating medical team (Colorectal team). If they need to post operatively transfer Mr Wentworth to the Medical Subacute Unit at Long Bay Hospital for post-operative monitoring and treatment, this is coordinated by the referral hospital with the receiving hospital in case he requires special care.
In the event Mr Wentworth having post-operative complications (bleeding, sepsis, anastomotic leak, DVT/PE, urinary complications and wound complications), he will be reviewed by Justice Health medical staff and transferred urgently to the POWH by NSW Ambulance.
[5]
Disposition of application
Putting to one side the difficulties referred to as presented by the applicant's weight, this evidence shows that the position with respect to his undertaking stoma reversal surgery whilst in custody has not changed; and that any of the issues likely to arise with respect to that surgery and his post-operative recovery could be satisfactorily addressed by Justice Health and through the public health system.
As the applicant frankly conceded in evidence, Dr Ng has advised him that at the present time there is a risk because of his body weight that if he undertakes the surgery without losing that weight "it might not work". The evidence indicates that the other treating and consulting doctors agree with that being the position; and for that reason, none of them recommends surgery at this time and whilst the applicant continues to have body weight issues.
It should be added that although the sentencing judge proceeded on the basis that there was a possibility that the applicant might undergo surgery in custody, he sentenced him "irrespective of that possibility", and in doing so found that his "time in custody is going to be substantially more hard than those that do [not] suffer from that disability and the consequential stigmatisation".
In the end, the proposed medical evidence does not establish the fundamental premise on which the application for leave to appeal depends, namely that it is no longer possible for the applicant to pursue stoma reversal surgery whilst in custody. That opportunity remains available, although his medical advice is that he should not pursue it.
Accordingly, the application for leave to appeal should be dismissed.
BEECH-JONES CJ at CL: Given the quantity of drugs supplied by the applicant, the sentence imposed on him was very lenient. The reason for that leniency was carefully explained by the sentencing judge, namely the various difficulties that it was anticipated that the applicant would experience in custody as a result of his medical condition. His Honour only accepted that there was a "possibility" that the applicant might undergo stoma reversal surgery and addressed the applicant's position on the basis that it would or might not occur ("irrespective of that possibility"; see [18]). As explained by Meagher JA, the evidence before this Court demonstrates that the position has not relevantly changed. I otherwise agree with Meagher JA's reasons. I agree with the orders proposed by his Honour.
GARLING J: I agree with the orders proposed by Meagher JA and with his reasons. I also agree with the additional remarks of the Chief Judge.
[6]
Amendments
22 December 2022 - Catchwords amended
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.
Decision last updated: 22 December 2022