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Court of Criminal Appeal 4 March 2002

Regina v Killick

[2002] NSWCCA 54

Other
SENTENCING APPLICATION TO RE OPEN BASED ON HEALTH GROUNDS FURTHER REDUCTIONS IN SENTENCES REFUSED

Citation: Regina v Killick [2002] NSWCCA 54
Court: New South Wales Court of Criminal Appeal
Date: 4 March 2002
Judge(s): O'Keefe J; Smart AJ

Background

The applicant, a self-represented prisoner, had previously appeared before the Court of Criminal Appeal on 4 January 2002, seeking a reduction in his sentences. That application was determined, but the resulting orders were not yet formally passed and entered, pending a further application by the prisoner to have the Court reconsider its judgment.

At the heart of the reconsideration application was the prisoner's contention that his health had deteriorated significantly since the April 2001 appeal hearing. He suffered from hypertension (high blood pressure), and argued that conditions at Goulburn Correctional Centre aggravated his condition, increasing his risk of stroke or serious cardiac event. His medication had been increased since the earlier hearing, and he reported a range of symptoms including severe headaches, chest pains, numbness, and diarrhoea.

The prisoner relied on an extensive collection of blood pressure readings he had taken himself using a personal digital device, along with statutory declarations, to argue that his prognosis had worsened materially and that his sentences should be reduced further on health grounds.

  • Whether the Court should reopen and reconsider its earlier judgment of 4 January 2002 on the basis of changed health circumstances.
  • Whether the applicant's blood pressure condition and related health concerns warranted a further reduction in his sentences.
  • Whether sufficient medical evidence existed to establish that the applicant's blood pressure was uncontrollable, had materially worsened, or was being inadequately managed within the prison system.

Decision

The Court declined to reduce the sentences further. Smart AJ, delivering the first judgment, examined the history of medical evidence before the Court, including reports from Dr Pascoe and Dr Brown that had been considered at the original sentencing and on appeal. Those reports indicated that the applicant's blood pressure, while at times poorly controlled, was capable of being managed satisfactorily, and that his life expectancy remained good provided control continued.

The Court observed that the blood pressure readings the applicant had submitted were selectively presented. He had not disclosed a number of lower readings taken on the same days as the high readings he chose to highlight. The overall pattern revealed labile (variable) blood pressure, sometimes high and sometimes low, rather than a picture of consistently uncontrollable hypertension. Clinic readings taken at Goulburn Correctional Centre were often lower than those the applicant had recorded himself, though no explanation for that discrepancy was offered.

Critically, the applicant called no medical evidence at the reconsideration hearing to support his contentions about his prognosis, the uncontrollability of his blood pressure, or any causal link between his imprisonment and his condition worsening. O'Keefe J agreed with Smart AJ that, in the absence of such evidence, there was no basis for a finding that the applicant's blood pressure was uncontrollable or that it was materially worse as a result of incarceration than it would otherwise have been.

The Court also noted that the evidence showed the applicant had access to timely medical assistance within the prison, citing an example in which nursing staff attended him during the night and adjusted his medication the following day.

Orders Made

  • The application to further reduce the sentences was dismissed.
  • The orders of the Court made on 4 January 2002 and on 4 March 2002 were to be passed and entered forthwith.

Key Takeaways

  • A prisoner seeking to reopen sentencing proceedings on health grounds must support that application with proper medical evidence; self-recorded readings and statutory declarations, without expert evidence as to prognosis or medical significance, are insufficient.
  • Labile or variable blood pressure, capable of being managed within the prison system, does not in itself establish grounds for further sentence reduction.
  • Where medical evidence presented to a court is selectively compiled (omitting lower readings while emphasising high ones), this undermines the reliability of the applicant's case.
  • The Court of Criminal Appeal confirmed that health factors already considered at sentencing and on appeal do not warrant further reduction simply because the prisoner attaches greater importance to them than the courts did.
  • Adequate access to in-prison medical care is a relevant consideration when assessing whether a prisoner's health conditions make continued imprisonment unjust or disproportionate.

Legislation and Cases Referenced

Legislation:
- Nil cited.

Cases:
- R v Spagnolo (2000) VSCA 126