[2010] NSWCCA 87
House v The King (1936) 55 CLR 499
Kentwell v The Queen [2011] 252 CLR 601
[2014] HCA 37
Khoury v R [2011] NSWCCA 118
209 A Crim R 509
R v AB [2015] NSWCCA 57
R v Deng [2007] NSWCCA 216
54 NSWLR 368
R v Vachalec [1981] 1 NSWLR 351
Turkmani v R [2014] NSWCCA 186
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 87
House v The King (1936) 55 CLR 499
Kentwell v The Queen [2011] 252 CLR 601[2014] HCA 37
Khoury v R [2011] NSWCCA 118209 A Crim R 509
R v AB [2015] NSWCCA 57
R v Deng [2007] NSWCCA 21654 NSWLR 368
R v Vachalec [1981] 1 NSWLR 351
Turkmani v R [2014] NSWCCA 186
Judgment (15 paragraphs)
[1]
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s): 2013/269211
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 06 February 2015
Before: Woodburne SC DCJ
File Number(s): 2013/269211
[2]
Judgment
BASTEN JA: In circumstances fully explained by R A Hulme J, the applicant, Richard Wright, sought leave to appeal against sentences imposed by Woodburne DCJ for a number of sexual assaults on young children. Although the circumstances require careful consideration, the material presented to the Court does not ultimately qualify as material upon which this Court could intervene. Accordingly, I would refuse leave to appeal against the sentences.
The admissibility in this Court, on an application for leave to appeal against sentence, of evidence not before the sentencing judge has been the subject of recent consideration in the High Court, restating principles which have, broadly speaking, been applied by this Court for several decades. It is convenient to restate those principles, so far as relevant for present purposes, in order to demonstrate that no occasion for intervention has been established.
An application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) is to be determined in accordance with s 6(3) of that Act. The first step is to identify error on the part of the sentencing judge. As explained in Kentwell v The Queen, [1] in terms derived from House v The King: [2]
"When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. … This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion."
The joint judgment in Kentwell continued, "[a]fter having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence." [3] This last proposition was very recently reiterated in Betts v The Queen: [4]
"As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry."
Although Betts was concerned with evidence relevant to the second stage of the process (error having been established warranting intervention by this Court), the joint reasons commenced with a statement of the principles relevant to the determination of appeals generally under s 6(3). The Court said: [5]
"Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. [6] The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. [7] Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. [8] Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. [9] None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. [10] "
This statement of principle is important in the present case, because the evidence sought to be relied upon to establish a ground of intervention was not evidence before the sentencing judge, nor was any error independently identified in the judgment on sentence. Unlike Betts, the focus in the present case was on the first stage (identifying error) rather than the second stage (resentencing).
The statement of principle in Betts raises two issues of present importance. The first is whether the phrase "new or fresh evidence" was intended to refer to "new and fresh" evidence and, secondly, whether the caselaw approved in the last sentence, referring to "the flexibility to receive new evidence" was not limited to evidence properly described as fresh evidence.
The concept of "fresh evidence" is generally understood as evidence that is new, in the sense that it had not been obtained at the time of the hearing at first instance, and was "fresh" in the sense that it could not have been obtained at that time in the exercise of reasonable diligence. The element of ambiguity is revealed by the reference to R v Lanham, a decision of this Court constituted by Mason and Manning JJA and Isaacs J. The passage in the judgment referred to in Betts read as follows: [11]
"Before dealing with the substance of the appeal it is necessary to deal with an application made by senior counsel for the applicant that this Court should receive certain affidavit evidence which was not tendered to the learned Chairman of Quarter Sessions. The Court has, of course, a discretion to admit fresh evidence but that discretion is to be exercised in accordance with well-settled principles which need no reiteration here. … It is necessary that we should state clearly and unequivocally that it is not the customary practice of the Court to receive fresh evidence and that in every case proper grounds must be established as a foundation for the exercise of the Court's discretion to admit fresh evidence. Indeed, if the Court were to take any other view, it would be lending its encouragement to a situation in which evidence relevant to the issue of penalty might be withheld from a lower court to be used on appeal in the event that the penalty imposed was thought to be too severe."
The last sentence (envisaging withholding of evidence) suggests that the term "fresh evidence" was not being used in a restricted and technical sense.
In R v Vachalec, also referred to in Betts in the passage set out above, Street CJ (delivering the judgment of a court comprising himself, Nagle CJ at CL and Lee J) stated, by reference to both appeals against conviction and appeals against sentence, that the primary function of the Court was to ascertain whether the decision was in error. The reasons continued: [12]
"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 or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice."
Referring to the judgment of James J (with whom Mason P and Hislop J agreed) in R v Deng [13] the High Court noted that this Court will routinely receive "evidence of the offender's progress towards rehabilitation in the period since the sentence hearing" on the limited basis that it may be taken into account at the second stage (resentencing). [14] However, even at the second stage, in circumstances where the power of the court to re-exercise the sentencing discretion had been enlivened, the High Court rejected the proposition that other evidence, not before the sentencing judge, should be admitted. Thus the Court stated: [15]
"Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct."
In Deng, James J commented on a passage in the reasons of Howie AJ in R v Fordham [16] in the following terms:
"[41] In argument on the appeal counsel for the respondent referred to another part of the judgment of Howie AJ in Fordham where his Honour said (at p 377):-
'Absent sentencing error which requires the Court to re-sentence an appellant, the Court should in my view, resist attempts to place before it material which was not before the sentencing judge'.
…
[43] … I would understand [Howie AJ] as saying that, if there has not been any sentencing error then, in general, evidence which was not before the sentencing judge will not be admissible on an appeal against sentence and as implying that, if there has been sentencing error, certain kinds of evidence may be admissible on an appeal but not as implying that, if there has been sentencing error, all kinds of evidence which might be relevant to sentencing are admissible on an appeal, notwithstanding that they were not before the sentencing judge.
[44] In the same paragraph of his judgment in Fordham in which Howie AJ made the remark I have been discussing, his Honour said:-
"Those representing an accused person before the trial court 'have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion (his Honour cited R v Birks (1990) 19 NSWLR 677). I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does to the actual trial.'"
The submission put to the Court in Betts was contrary to the conclusion reached in Deng; [17] it was rejected, thereby affirming the approach accepted by James J in Deng.
It is not necessary for present purposes to consider whether evidence which was either obtained and not relied upon, or was reasonably available but not obtained, could ever (and if so in what circumstances) form the basis for an application for leave to appeal against sentence. What may be accepted, however, is that evidence which was not obtained because it was not available in the exercise of reasonable diligence, may be admissible in order to show that the sentencing process miscarried, although that is only likely to be in exceptional cases and will depend upon the nature of the evidence.
In the present case, the evidence concerned the applicant's deteriorating health at the time of sentencing and subsequently. Such evidence should be distinguished from evidence which had potential consequences for the moral culpability of the applicant at the date of his offending, as was the case in Betts.
There is another kind of evidence which arguably falls into a different category. That is evidence which may not have been available at the time of sentencing, but which demonstrates that the circumstances of imprisonment are harsher, due to the deteriorating condition of the offender, than had been anticipated at the time of sentence. In respect of such evidence, Street CJ stated in Vachalec, immediately after the passage referred to above at [10]:
"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. … Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them."
There is some tension between the principle that the Court should generally only consider admitting fresh evidence and the principle that anything that has happened since sentencing (being the most obvious category of fresh evidence) is a matter for the executive and not for the court on an application for leave to appeal against sentence. There is a further problem, particularly with medical conditions, in identifying what is properly described as "fresh evidence". For example, there was evidence before the sentencing judge that the applicant was in declining health. He had not been diagnosed as suffering from dementia at that stage, nor, it may be accepted, should such a diagnosis have then been made. However, the fact that a psychiatrist has (for sound reasons) later proffered such a diagnosis does not necessarily mean that there is some fresh material which might have affected the sentencing, had the diagnosis then been available.
In Khoury v The Queen, [18] Simpson J stated that "[i]f evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance." That statement was worded in the past tense because of the understood need to distinguish between "events or circumstances or facts that have arisen entirely since sentencing" (which cannot be taken into account) [19] and those facts or circumstances which "existed at the time of sentencing, even if not known, or imperfectly understood, at that time". [20] Nevertheless, Simpson J suggested that "[t]oo rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence." [21] After noting the further difficulty in determining whether the relevant "event or circumstance" is the psychological condition or the diagnosis [22] Simpson J concluded: [23]
"For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition."
Simpson J further emphasised that, even if the evidence did cast light on circumstances known but not fully appreciated at the time of sentencing, the admission of such evidence remained a discretionary function of the court. [24] Not only is that desirable in order to ensure that evidence which might have been obtained prior to sentencing is not deliberately held back, as a forensic stratagem, but also because of the need to assess the materiality of the evidence.
The evidence sought to be relied upon in the present case has been identified by R A Hulme J in terms which need not be repeated. As he explains, the evidence now proffered should not properly have resulted in a more lenient sentence. Accordingly, the evidence should not be admitted. If it were thought appropriate to admit the evidence in the particular circumstances of this application, it nevertheless could not provide a sufficient basis for a grant of leave to appeal.
R A HULME J: Mr Richard Wright seeks leave to appeal in respect of sentences imposed by her Honour Judge Woodburne SC in the District Court at Sydney on 6 February 2015 in respect of a number of child sexual assault offences he committed in the early 1960's upon his stepdaughter.
Her Honour imposed an overall sentence of 4 years 5 months with a non-parole component of 2 years dating from 2 October 2014. The applicant will become eligible for release on parole on 1 October 2016.
Details of the individual offences, maximum penalties and sentences imposed appear in the following table. Each offence is contrary to sections of the Crimes Act 1900 (NSW). Each sentence was reduced by 12.5 per cent because of the utilitarian value of the applicant's pleas of guilty.
Count 1 Indecent assault (s 76 - max 5 years) between 1.1.61 and 30.4.62 2 years 7 months from 2.10.14
NPP 1 year 2 months
Count 2 Carnal knowledge by a stepfather (s 73 - max 14 years) between 24.10.61 and 30.4.62 3 years 11 months from 2.4.15 NPP 1 year 6 months
Count 3 Carnal knowledge by a stepfather (s 73 - max 14 years) between 24.10.61 and 30.4.62 2 years 10 months from 2.4.15
NPP 1 year 4 months
Count 4 Carnal knowledge by a stepfather (s 73 - max 14 years) between 24.10.63 and 23.10.64 2 years 7 months from 2.1.15
NPP 1 year 3 months
[3]
The applicant relies upon a single ground of appeal:
"Fresh evidence in respect of the applicant's health shows that a miscarriage of justice occurred in the sentence proceedings."
The "fresh evidence" concerns an aspect of the applicant's health which was not discovered until after he was sentenced. He has been diagnosed as suffering from Probable Major Neurocognitive Disorder due to Alzheimer's disease.
[4]
Facts
The complainant was born in 1948. Her mother married the applicant in 1959 when he was aged 29. He was born in 1930 and is now aged 86.
Count 1: Sometime between 1 January 1961 and 30 April 1962 when the complainant was aged 12 or 13 there was an occasion when the applicant put a towel on the complainant's bed and put oil on his hands. While she was lying on the towel he rubbed her thighs and digitally penetrated her vagina. Her mother witnessed this and asked what was going on. The applicant replied, "I'm helping her to lose weight, what do you think is going on here?" The mother left the room and the applicant continued what he was doing.
The learned sentencing judge assessed this offence as "a very serious instance of an offence of its type".
Count 2: Sometime between 24 October 1961 and 30 April 1962 when the complainant was aged 13 there was an occasion when she was in a bedroom and the applicant entered wearing only a shirt. She was shocked to see his erect penis. He commanded her to lay on the bed and he removed her clothing. He rubbed her genitalia and digitally penetrated her vagina a number of times which caused a stinging sensation. He then said to her, "I love you, I love you, you're ripe for the picking. When I married your mother she wasn't a virgin but you are". He then inserted his penis in her vagina which caused her to cry out in pain. He said to her, "Shh". The complainant experienced immense pain and blacked out. She was unable to say for how long he penetrated her. When he finished he wiped her vagina roughly with a towel.
This offence was assessed by the judge as being "a very serious example of an offence committed in contravention of s 73 Crimes Act".
Count 3: This event occurred later on the same day as the event in Count 2. The complainant was in the lounge room and he told her, "I love you, you're so special". They kissed and he laughed because she was responding to him. He then had penile vaginal intercourse with her on the linoleum covered floor which she found to be extremely painful.
The judge assessed this offence as serious, but less so than the offence in Count 2.
It was an agreed fact that the applicant continued having sexual intercourse with the complainant over the following years. He would take her in his car to secluded locations. The complainant recalled that if she was having a bad day or was upset the applicant would say to her, "I know what you need", meaning that he would have sex with her.
Count 4: This event occurred between 24 October 1963 and 23 October 1964 when the complainant was aged 15. He took her for a drive to a secluded location when he had penile vaginal intercourse with her which culminated in him ejaculating on the ground beside her.
The judge accepted the submission by the applicant's counsel that this offence was not the most serious example of such offending (the Crown did not contend that it was) but it remained a serious matter.
[5]
Victim impact statement
A victim impact statement was prepared by the complainant and read out in the District Court. The learned judge regarded it as "an eloquent reminder to this Court and the community of the damage done by the criminal actions of the offender". She described the statement as an expression by the complainant of "the continuing emotional and psychological damage caused by the offender's actions" and noted that the "hurt, pain and dislocation has endured over many years". She considered it was to the complainant's credit "that she had survived the sexual assaults committed upon her and that she has managed to have the courage and fortitude to appear before the Court to inform the Court of the damage done".
There is no complaint about the manner in which the judge had regard to the statement. It describes in considerable detail the variety of very tragic and deleterious effects that offences of this type can cause their victims. The psychological, emotional and life-changing responses of the complainant, even over half a century after her abuse by the applicant, are palpable.
[6]
Complaint, investigation and the course of proceedings
The complainant made her first complaint to the authorities when she was living in Western Australia in mid-2009.
In September 2009 the applicant was interviewed by Western Australian police in relation to his offending in the late 1980's and early 1990's in relation to two other female children, one being his step-granddaughter. During that interview he made partial admissions of having interfered with the complainant in the present matter.
In September 2010 the applicant was sentenced in the District Court of Western Australia in relation to the offences concerning the other children. He received a sentence of 18 months imprisonment which was suspended for 2 years.
The Western Australian police sent information to police in this State in November 2010 and an investigation commenced. In September 2013 an arrest warrant was issued which was executed in November that year in Queensland where the applicant was then living. He was extradited to this State and remained in custody until he was released on bail in March 2014.
The applicant was committed for trial on 8 May 2014. A trial in the District Court was scheduled for 29 September 2014. In the weeks preceding the trial the applicant instructed his solicitors to enter into charge negotiations with the prosecutor which led to pleas of guilty being entered on 29 September 2014.
The matter came before Woodburne SC DCJ on 18 December 2014. Judgment was reserved and the applicant was sentenced by her Honour on 6 February 2015.
The Registrar granted an application for an extension of time to file a Notice of Intention to Appeal on 10 April 2015. The life of the notice was twice extended, ultimately to 30 March 2016. The Notice of Application for Leave to Appeal was filed on 9 March 2016. Accordingly, notwithstanding the time that had elapsed, no extension of time is required. Although I make no criticism, it is unfortunate that the matter has taken so long to proceed in the appellate phase given the applicant's non-parole period expires on 1 October 2016.
[7]
The applicant's personal circumstances including his ill-health
The judge stated that the determination of the appropriate sentence was made more complex in this case by reason of the passage of time; the change in sentencing practices in the ensuing period; the applicant's advanced age (she noted he was soon to turn 85); delay; and ill-health.
A number of documents concerning the applicant's ill-health were tendered in the sentencing proceedings: reports by Dr Emma Brown, the applicant's general practitioner, and Dr Stuart Reader, ophthalmologist; Justice Health medical records and a summary of the same; and an affidavit by the applicant.
The judge noted that in the applicant's affidavit he listed his health conditions: advanced macular degeneration, being almost completely blind in one eye; chronic obstructive airway disease; chronic renal failure; hyperthyroidism; peptic ulcer; arthritis; and other degenerative changes. He said that he suffered from dizziness, shortness of breath and nose bleeds and back pain from a previous back injury.
Dr Brown's report confirmed that the applicant had significant visual loss due to macular degeneration; chronic kidney disease requiring blood test monitoring; hypertension and hyperthyroidism requiring regular oral medication; and chronic obstructive pulmonary disease requiring inhaled therapy. She considered that whilst the future of these conditions was uncertain, the applicant's renal function and respiratory condition may well deteriorate.
Dr Reader confirmed a diagnosis of advanced macular degeneration. It was his opinion that the condition could continue to deteriorate. He said, "Given the fact that the offender is almost legally blind, a period of incarceration would be more difficult for him in relation to his ocular problems".
The Justice Health records related to the period in which the applicant was in custody from 21 November 2013 to 26 March 2014. He had received treatment at the eye clinic at Prince of Wales Hospital and had also been referred for physiotherapy for bilateral arthritis and osteoporosis treatment. He had also been referred to a psychologist because he was teary and not coping being in custody. Arrangements were made to have his blood pressure checked weekly. He was housed on a downstairs level to minimise the risk of falls.
The judge referred to all of these matters (I have drawn the above summary from her judgment). She considered that the applicant's various conditions were amenable to treatment in the custodial environment although she added that she was not discounting their relevance. Her Honour accepted that imprisonment would be "a greater burden on him by reason of his state of health and his advanced age". This was relevant to the determination of the length of a sentence of imprisonment including the non-parole period.
Another aspect rendering the applicant's custodial experience more difficult that the judge took into account was the fact that he would be separated from his 90 year old wife and other family members who lived interstate and were unable to visit regularly.
A short time later in the judgment her Honour reiterated that she accepted the applicant would "find his incarceration more difficult than would otherwise be the case than if he was in good health and not of advanced age". It was "a significant consideration and a matter that calls for mitigation of punishment". (Emphasis added)
Other matters taken into account in the assessment of sentence included the applicant's prior good character; he had no criminal history at the time of the index offences. This was considered in the context of him having offended over a number of years. Reference was also made to the subsequent sexual offending against two children in Western Australia. Her Honour also noted that the applicant had family support as indicated by their presence in court and by a testimonial by the daughter of his current wife. (His former wife of 42 years, the mother of the complainant, had died in 2002 and he remarried in 2005.)
The judge was not satisfied that the applicant had any insight or remorse for his offending and the impact of that offending upon the complainant. Nevertheless she accepted that he was unlikely to reoffend given his age and ill-health.
The delay in the present matters being prosecuted and brought to finalisation was taken into account. Her Honour's consideration of this issue was detailed and, given there is now no complainant about the subject it is unnecessary to say more except to observe that her Honour noted and took into account that the applicant had aged and his health had deteriorated.
Another aspect of delay that her Honour dealt with was the fact that it was necessary for sentencing to be assessed with regard to the significant change in the approach to sentencing in the period since the offences were committed. She referred to relevant authority in this Court on the subject (e.g. the five-judge bench decision in R v MJR [2002] NSWCCA 129; 54 NSWLR 368) and, again, given there is no complaint about the manner in which her Honour dealt with this issue there is no need to say more.
Special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found so as to justify a reduction in the proportion of the sentences (including the total effective sentence) represented by the non-parole component. This finding was based upon a combination of the changed sentencing practices; the applicant's age and ill-health; the conditions he would experience in custody; and the fact that individual sentences would be partially accumulated.
[8]
The fresh evidence
An affidavit by the applicant's present solicitor affirmed on 3 March 2016 was read at the hearing of the application. Annexed to the affidavit was a report by Dr Sharon Reutens, consultant psychiatrist, of 25 February 2016 as well as a number of documents to which she had referred including a report of a neuropsychological assessment by Dr Susan van den Berg dated 4 September 2015.
Dr van den Berg's report includes the following:
"The predominant impression is that Alzheimer's pathology is the most likely underlying cause of Mr Wright's presentation.
…
Mr Wright's diagnosis remains tentative and he will require follow up to monitor his functioning. Reassessment in 12 months is recommended, using the current results as a baseline, to help clarify the clinical picture and confirm the diagnosis.
Given Mr Wright's advancing age, physical limitations and cognitive difficulties, he is likely to be vulnerable in a mainstream custodial setting. It is also likely that his cognitive abilities will decline over time. As such, he would benefit from placement in a supportive environment which is able to cater for his aged care needs, such as the Kevin Waller Unit at Long Bay Correctional Complex."
Dr Reutens' curriculum vitae includes that she has advanced training in neuropsychiatry and old age psychiatry. She is employed as a Senior Visiting Medical Officer in Psychogeriatrics with Justice Health and as such is involved in management of the psychiatric needs of the older inmate population.
Dr Reutens' diagnosis of the applicant was: Probable Major Neurocognitive Disorder due to Alzheimer's disease. She wrote:
"The diagnosis of a DSM 5 Major Neurocognitive Disorder, more commonly termed dementia, was made on the basis of a history of memory deficits that were more prominent for recent than remote events. Mr Wright had deficits of memory, attention and executive function (planning, language generation, abstract thinking) and orientation, indicating that the impairment affected several areas of cognition.
… The documentation does not indicate any abrupt cognitive decline or significant illnesses, and the cognitive impairments noted on neuropsychological testing about 6 months prior are roughly similar. Therefore, a slow degenerative disease such as an Alzheimer's-type dementia, possibly with concomitant vascular aetiology (based on the history of hypertension and past history of smoking) is the most probable cause of the cognitive impairment."
She described Alzheimer's and Vascular type dementias as slowly progressing conditions that present with obvious clinical symptoms some years after the onset of the disease. She considered that the applicant "most likely had cognitive impairment while he was on remand". An episode of confusion recorded in the Justice Health records on 31 January 2014 was, with hindsight, a warning sign of cognitive impairment.
When asked by the applicant's solicitor in his letter requesting Dr Reutens to make an assessment of his client whether incarceration affects the symptoms of the condition she responded: "incarceration is unlikely to affect the pathogenesis or expression of the disease in any material way".
As to whether the applicant's experience of incarceration is affected by the symptoms of the condition she wrote:
"[The applicant's] experience of incarceration is affected because of the combination of dementia with his sensory impairments. He is essentially blind and at the interview appeared to have a hearing impairment as well. One of the mainstays of therapy for dementia is activity. Diversional activities provide quality of life, and mitigate against the development of behavioural disturbance of dementia (BPSD), however there are limited activities that are able to be provided in prison, and [the applicant] cannot participate in most of the offered activities in the Kevin Waller Unit (gardening, reading, painting) because of the visual impairment, and he has nothing to occupy him after lock-in in the afternoon.
Therefore, he is currently experiencing greater hardship than most of the other older prisoners in the Wing."
Dr Reutens said that to mitigate the symptoms, the applicant "would, ideally, be able to engage in meaningful activities suitable for visually impaired people with cognitive impairment. If he were in the community, [the applicant] could attend a centre with activities for cognitively impaired people". She added:
"He is at risk for delirium due to his cognitive deterioration and sensory impairment. Therefore a regular routine and limiting changes in his cell placement would help prevent episodes of confusion."
Dr Reutens referred to a relevant academic work and reported that the prognosis for Alzheimer's dementia is of a gradual deterioration in cognition until death. Given his advanced age, the applicant would be expected to be at the shorter end of the range of life span, something in the order of several years. She said that during this time it is expected that he would gradually lose independence and will become carer dependent, culminating in the terminal stage where he would be unaware of his environment.
In a further report dated 7 June 2016 (annexed to an affidavit affirmed by the applicant's solicitor on 8 June 2016) Dr Reutens noted a number of difficulties the applicant had experienced in custody in attending to daily activities (for example, requiring prompting to shower and assistance to ensure he took medications). She referred to the applicant lacking the assistance a person with cognitive impairment can rely upon by way of visual prompts, cues and reminders. She said he would benefit from having a carer to assist him. She also referred to various facilities that are available in the community to assist persons in the applicant's situation: home care; a community team or carer to liaise with services that could assist; and adult day care centres to provide diversional activities and social interaction.
Other material annexed to the solicitor's affidavit of 8 June is informative of the various services and facilities that could be available to the applicant in the community.
An affidavit sworn by the "inmate-carer" assigned to the Kevin Waller Unit where the applicant has been held since shortly after he was sentenced provides information as to the care and assistance he provides to the applicant and the other 21 elderly male inmates of the unit. A number of these inmates suffer from dementia as well as a range of other physical disabilities. Reference is made to the apparent confusion expressed by the applicant as to why he is there and when he is due for release.
[9]
Principles in relation to fresh evidence and their application
There are limits on the ability of this Court to receive fresh or new evidence. Simpson J (as her Honour then was) provided a most detailed and useful summary of the relevant principles in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121]. It is, however, sufficient for present purposes to refer to the more succinct summary provided in the written submissions of senior counsel for the applicant:
1. "Fresh evidence" is to be distinguished from "new evidence": fresh evidence is evidence which was not available or which could not have been obtained with reasonable diligence at the time of sentence; new evidence is evidence which was available but not used or which could have been obtained with reasonable diligence: R v Goodwin (1990) 51 A Crim R 328 at 330.
2. Generally, neither fresh evidence nor new evidence is received on appeal, as a reflection of the principle of finality: Cornwell v R [2015] NSWCCA 269 at [39]. Fresh evidence or new evidence will only be received where a miscarriage of justice is shown: R v Fordham (1997) 98 A Crim R 359 at 377-378; or where it is in the interests of justice: Cornwell v R at [59].
3. Evidence of events or circumstances that have arisen entirely since sentence is not received. However, evidence may be received of events or circumstances which existed at the time of sentence but which were unknown, or the significance of which was unappreciated. The rationale for reception of the evidence is that the court proceeded on an erroneous view of the facts: Khoury v R at [110]-[115].
4. The determination to receive the evidence is discretionary. Caution must be exercised and a proper basis for admission of the evidence must be established: Khoury v R at [117].
5. Factors relevant to the determination to receive the evidence include the circumstances of, and any explanation for, the failure to produce the evidence at first instance and the potential significance of the evidence to the outcome: Khoury v R at [121].
The final point was elaborated upon earlier in the judgment of Simpson J in Khoury v R:
"[108] If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham."
In his judgment in Turkmani v R [2014] NSWCCA 186, Beech-Jones J referred (at [66]) to three examples of the application of the principle concerning the receipt of evidence derived after sentencing:
a) Where the offender was diagnosed with a condition after sentence but was affected by it at the time of sentence.
b) Where, although the symptoms of a condition may have been present, their significance was not appreciated at the time of sentencing.
c) 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.
[10]
Submissions for the applicant
In the present case it is contended that the evidence qualifies as "fresh evidence" and that it falls within the first and second of the examples referred to by Beech-Jones J in Turkmani v R. The episode of confusion exhibited by the applicant in January 2014 was referred to as indicating that the onset of dementia pre-dated the applicant's sentencing.
As to the significance of the evidence, senior counsel for the applicant submitted, first, that the sentencing judge found that there was no evidence that the applicant would not receive appropriate medical treatment in prison, whereas the fresh evidence establishes that his imprisonment limits his access to therapy recommended for his disease. Secondly, it was submitted that while the judge accepted that the applicant's imprisonment would be more burdensome because of his age and poor health, the fresh evidence establishes that it may be a greater burden than was anticipated.
For these reasons, it was submitted, the factual basis upon which sentence was determined was erroneous and there had thereby been a miscarriage of justice.
Senior counsel for the applicant raised a new argument at the hearing of the application. By reference to R v AB [2015] NSWCCA 57 he contended that some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act to which the sentencing judge had regard were really inapt in the applicant's circumstances; specifically, denunciation and making him accountable for his actions. If the judge had been aware of what is now known about the applicant there would have been a significant difference in the sentence imposed.
[11]
Submissions for the Crown
Senior counsel for the Crown conceded that it would be open to the Court to receive the evidence on the basis identified in the submissions for the applicant.
It was not, however, conceded that the evidence establishes that the applicant's custodial experience is more onerous than was appreciated when he was sentenced.
Reference was made to Dr Reutens' first report in which she spoke of the inevitable progression of the applicant's dementia and identified the "limited treatments available". It was argued that there was nothing in the report to suggest that the applicant is not being appropriately cared for in custody.
A further submission was that the applicant's non-parole period of 2 years expires in under 4 months time on 1 October 2016. There is no evidence that in the 16 months that have elapsed since he was sentenced and returned to custody there has been any decline in his ability to manage. Further, there is no evidence that any further (gradual) decline in the ensuing months will be of such magnitude so as to impact on his ability to manage in a manner similar to which he has to date.
In short, the Crown submitted that when regard is had to the range of ill-health factors, coupled with the applicant's advanced age, to which the sentencing judge had regard, this Court would not be satisfied that incarceration would be more onerous than her Honour anticipated. The offences were found to be objectively serious and the Crown contended that the fresh evidence did not justify any reduction when "considerable leniency" had already been factored into the assessment of sentence.
In meeting the new argument based upon R v AB that was raised by the applicant at the hearing, senior counsel for the Crown contended that the circumstances of that case were quite different to those of the present case
[12]
Consideration
The evidence properly qualifies as fresh evidence that this Court could receive in accordance with the principles to which I have earlier referred. I am not, however, persuaded that the Court should exercise its discretion to receive it because it is insufficient to warrant a fresh assessment of sentence. (I have since had the benefit of reading in draft the very useful analysis of Basten JA which further confirms the view I have formed.)
The primary judge's reasons disclose that she approached her task very carefully, giving attention to both the seriousness of the offences as well as the substantial mitigation arising from various factors including (but not limited to) the applicant's advanced age and his multifaceted ill-health. She said a number of times that the applicant's incarceration would be more difficult than it otherwise might be. She regarded this as "a significant consideration and a matter that calls for mitigation of punishment and a matter to be brought into account … in the determination of the appropriate sentence".
Sympathies might be aroused by the reports that have recently come to hand which disclose that an elderly inmate who was sentenced on the basis of having a variety of significant conditions of physical ill-health is now found to have dementia from which he is gradually declining. But is more weight to the difficulties of being incarcerated justified when such consideration already formed a major component of the assessment of sentence? In my view, in the circumstances of this case that question must be answered in the negative. The sentence imposed already represents a lenient outcome when regard is had to the gravity of the applicant's offending and the enduring harm that it caused.
[13]
R v AB
The argument of senior counsel for the applicant concerning the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act requires some detailed attention. The circumstances in R v AB were, as the Crown contended, rather different. There the respondent was the subject of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) because he had been found unfit to be tried on a charge of having murdered his estranged wife. He was aged 64 at the time of the killing and was almost 69 at the time the case was finalised. Psychiatric opinion was to the effect that he suffered from an adjustment disorder with depressed mood. He was also diagnosed with dementia (probably caused by long term hazardous alcohol consumption), cerebro vascular disease and possible Alzheimer's dementia. There were also a number of physical ailments.
The primary judge found the respondent to be not guilty of murder but that on the limited evidence available he had committed the offence of manslaughter upon the basis of him being substantially impaired by an abnormality of mind (s 23A of the Crimes Act). A limiting term of 7 years was imposed. (No non-parole period is specified when a limiting term is nominated.) In the course of his reasons the primary judge said:
"A limiting term that is likely to end after an offender's understanding of where he or she is and why serves no useful public purpose and is, therefore, pointless … ."
One of the grounds of the Crown appeal against the asserted inadequacy of the limiting term was that the judge "erred in principle in his statement of a 'purpose' of a limiting term". The ground was rejected.
Simpson J (as her Honour then was) set out the various purposes of sentencing listed in s 3A:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
She found (at [42]) the matter in (a) to be irrelevant by reference to authority for the proposition that the purpose of nominating a limiting term is not to punish. That is the first difference with the circumstances of the present case.
Her Honour said that findings of the primary judge (the respondent's mental disability rendered him an unsuitable vehicle for general deterrence and he would not commit another act of violence) rendered the matters in (b)-(e) irrelevant.
Her Honour also considered (at [45]) that denunciation of the respondent's conduct was in the same category as general deterrence because both stemmed from his diminished moral culpability which in turn arose from his impaired mental capacity.
Recognition of the harm done to the deceased, her daughter and to the community was held to remain of relevance and it was not established that the primary judge had overlooked the fact.
In the present case the judge made reference to s 3A and, after listing its content, she remarked: "Of course, the weight to be attributed to each of these matters depends on the facts of the case". She continued:
"In the present case it remains important to denounce the offender's crimes, to make him accountable for his actions and to recognise the harm done to the victims of the crime and the community".
The sentence to be imposed upon the applicant was to be in the form of a punishment, unlike the limiting term in R v AB. Accordingly, it was appropriate for her Honour to have regard to the need to ensure the respondent was adequately punished for his offences (with such assessment having to be made in the light of all relevant factors). There was no suggestion of the respondent's moral culpability for his crimes being diminished and so denunciation was also a matter her Honour could factor into the assessment (qualified by the various mitigating features). Finally, there was no argument about the relevance of recognising the harm done to the complainant. As to the other purposes of sentencing listed in s 3A, the judge made no other specific reference to them so it may be assumed that they did not loom large in her approach.
Another point of distinction between the present case and R v AB is that the length of the limiting term under consideration in the latter was significantly longer than the sentence in this case (7 years as opposed to a non-parole period of 2 years). The concern of the primary judge in that case not to impose a term that would exceed the period in which the respondent would retain some awareness of where he was, and why, does not have the same degree of significance in this case.
I am not persuaded of the applicant's contention that the fresh material presented to this Court would have made a significant difference to the sentence.
[14]
Orders
I propose the following orders:
Leave to appeal against sentence refused.
FAGAN J: I agree with R A Hulme J.
[15]
Endnotes
(2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ) and [49] (Gageler J agreeing) (references omitted).
(1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
Kentwell at [43].
[2016] HCA 25 at [2] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
Betts at [10].
Skinner v The King [1913] HCA 32; (1913) 16 CLR 336 at 340 per Barton ACJ; [1913] HCA 32; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 370-371 [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; [2005] HCA 25; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at 579-581 [11]- [14] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10; and see Sidlow (1908) 1 Cr App R 28 at 29 per Lord Alverstone CJ.
R v Vachalec [1981] 1 NSWLR 351 at 353 per Street CJ delivering the judgment of the Court.
R v Lanham [1970] 2 NSWR 217 at 218.
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 per Barwick CJ; [1974] HCA 35.
Abbott (1985) 17 A Crim R 355; Goodwin (1990) 51 A Crim R 328; Araya (1992) 63 A Crim R 123 at 129-130 per Gleeson CJ; Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ; see also Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 per Gibbs CJ; [1986] HCA 26.
Lanham at 218.
Vachalec at 353F-G (emphasis added).
[2007] NSWCCA 216; 176 A Crim R 1.
Betts at [11].
Betts at [14].
(1997) 98 A Crim R 359 at 377.
Betts at [13].
[2011] NSWCCA 118; 209 A Crim R 509 at [108].
Khoury at [110].
Khoury at [113].
Khoury at [113].
Khoury at [118], referring to Einfeld v The Queen (2010) 200 A Crim R 1, [2010] NSWCCA 87 at [45] and [50].
Khoury at [120].
Khoury at [121].
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Decision last updated: 04 April 2019