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Court of Criminal Appeal 28 May 2001

Regina v Jacobs

[2001] NSWCCA 212

Also reported as 122 A Crim R 409
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING PRISONER IN NEED OF SURGERY FRESH EVIDENCE ON SENTENCE

Citation: Regina v Jacobs [2001] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 28 May 2001
Judge(s): Carruthers AJ, Badgery-Parker AJ

Background

The applicant had pleaded guilty to two groups of serious offences. The first group, arising from an incident at a Penrith shopping centre in October 1996, involved threatening two security guards and a bystander with a broken bottle to avoid arrest. The second group, from March 1997, involved a series of opportunistic street robberies and car thefts carried out over a single afternoon across the north-western suburbs of Sydney.

At the time of both groups of offences, the applicant was on parole for earlier dishonesty and weapons offences. He was sentenced in May 1999 by Judge Keleman in the District Court, receiving an overall structure that extended his custody to November 2002 beyond the parole period already being served.

The applicant sought leave to appeal against sentence. On appeal, he sought to rely on fresh evidence regarding a significant medical condition requiring surgery, arguing that his medical circumstances warranted a reduction in the sentences imposed.

  • Whether fresh medical evidence, not before the sentencing judge, was admissible on an appeal against sentence before the Court of Criminal Appeal.
  • Whether the applicant's medical condition and need for surgery constituted sufficient grounds to reduce the sentences imposed, or made those sentences manifestly excessive.
  • What role the Court of Criminal Appeal has in responding to a prisoner's medical needs that arise or become more apparent after sentencing.

Decision

The Court granted leave to appeal but dismissed the appeal. Badgery-Parker AJ (with whom Carruthers AJ agreed) accepted that fresh evidence regarding a prisoner's medical condition can, in appropriate circumstances, be received on a sentence appeal. The Court acknowledged the applicant was experiencing significant pain and would continue to do so while awaiting surgery.

However, the Court weighed that medical hardship against the gravity of the offences. The additional period of custody actually attributable to Judge Keleman's sentences (as distinct from the revoked parole period, which this Court had no power to affect) amounted to less than fifteen months. Reducing the sentences to account for the medical condition would, in the Court's view, produce a result of unacceptable leniency given the seriousness of the offending.

The Court also noted that the medical evidence did not suggest a significant risk of deterioration in the applicant's condition if surgery were delayed. The primary responsibility for the applicant's medical treatment during his imprisonment rested with the relevant correctional department, not with the sentencing court. The Court observed that if a material deterioration occurred before surgery could be arranged, the Parole Board retained a power to consider compassionate release.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Fresh medical evidence can be received by the Court of Criminal Appeal on a sentence appeal, but its weight must be assessed against all circumstances, including the seriousness of the offending.
  • A prisoner's need for surgery and ongoing pain, while genuinely relevant to sentencing, does not automatically justify a reduction in sentence where the offences are serious and the medical risk of delay is not significant.
  • The Court of Criminal Appeal confirmed that the primary obligation to provide medical care to prisoners rests with the relevant correctional department, not with the court through the mechanism of sentence reduction.
  • In dismissing the appeal, the Court drew a clear boundary around its own jurisdiction: it had no power to interfere with the period in custody arising from the revocation of the applicant's parole, a matter within the Parole Board's domain.
  • Where exceptional deterioration in a prisoner's medical condition occurs after sentencing, compassionate release through the Parole Board, rather than appellate intervention, represents the appropriate avenue.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 102
- Crimes (Administration of Sentences) Act 1999 (NSW), s 160

Cases:
- R v Vachalec (1981) 1 NSWLR 351
- R v Sopher (1993) 70 A Crim R 570
- Mickelberg v R (1988-89) 167 CLR 259
- R v Smith (1987) 44 SASR 587
- R v White (unreported, NSWCCA, 7 April 1997)
- R v L (unreported, NSWCCA, 17 June 1996)
- R v Jones (1993) 70 A Crim R 449