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Court of Criminal Appeal 24 September 2009

Anesbury v R

[2009] NSWCCA 245

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE BLACKMAIL SENTENCE MEDICAL CONDITIONS OF OFFENDER EVIDENCE BEFORE SENTENCING JUDGE

Citation: Anesbury v R [2009] NSWCCA 245
Court: New South Wales Court of Criminal Appeal
Date: 24 September 2009
Judge(s): Spigelman CJ, McClellan CJ at CL, Grove J

Background

The appellant was convicted of blackmail under s 100A of the Crimes Act 1900, which carries a maximum penalty of 10 years' imprisonment. The offence arose from a scheme in which she attended the surgery of a medical practitioner and demanded $100,000, threatening to send an alleged video recording of the doctor's sexual activity to the Medical Board and a television programme. She was ultimately arrested when she attended a prearranged handover meeting and accepted $5,000 from an undercover police officer.

At sentencing before Puckeridge DCJ in the Wagga Wagga District Court, the judge had before him medical and psychological reports detailing the appellant's significant health conditions. These included a recent spinal fusion operation, carpal tunnel surgery, and dependence on multiple medications for pain, blood pressure, asthma, and depression. The sentencing judge acknowledged this material expressly but imposed a total term of 2 years and 8 months, comprising two equal periods of 16 months for the non-parole period and the balance term.

The appellant, who appeared in person before the Court of Criminal Appeal, sought leave to appeal against the severity of the sentence. Her principal complaint was that, since being incarcerated, her health had deteriorated beyond what was anticipated at the time of sentencing, and that she had developed additional ailments not adequately addressed in custody.

  • Whether the sentencing judge failed to give adequate weight to the appellant's medical conditions when imposing the sentence
  • Whether post-sentence deterioration in the appellant's health, and the alleged inadequacy of medical care in custody, provided grounds to reduce the sentence on appeal
  • Whether the appellant's access to physiotherapy and hydrotherapy in custody was a matter that the Court of Criminal Appeal could or should address by reducing her sentence

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Puckeridge DCJ had expressly engaged with the medical and psychological evidence, including the psychologist's opinion that correctional facilities were ill-suited to the appellant's pain management needs. The judge had taken those matters into account but concluded that the objective seriousness of the offence nonetheless required a custodial sentence.

On the post-sentence complaints, the Court examined documentation from Justice Health and found a meaningful gap between the appellant's characterisation of her condition and the observations of her health carers. Clinical notes recorded that the appellant used "dramatic language" about her pain while appearing to move freely during consultations. The Court also noted that the appellant had declined a psychiatric assessment at the pain clinic, and that no medical document supported her assertion that daily hydrotherapy had been recommended by her surgeon.

The Court affirmed the principle from R v Vachalec (1981) 1 NSWLR 351 that the health care of persons serving sentences is the responsibility of corrective services authorities, and the Court of Criminal Appeal is not empowered to supervise the provision of that care. Intervention to reduce a sentence would not be warranted on the basis of subjective complaints about the level of care for conditions that were already assessed at the time of sentencing.

The Court was satisfied that Justice Health was responding to the appellant's complaints in a reasonable manner, even if not every demand was met. No error in the sentencing judge's reasoning was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's express consideration of a defendant's medical conditions, and the likely difficulties of custody, will ordinarily satisfy the obligation to take those matters into account at sentencing.
  • A deterioration in an offender's health after sentencing, or the emergence of new conditions during custody, does not of itself constitute a ground to reduce an otherwise appropriate sentence on appeal.
  • Under the principle affirmed in R v Vachalec, the health care of sentenced offenders is a matter for corrective services authorities; the Court of Criminal Appeal has no supervisory power over its provision.
  • Subjective complaints about the adequacy of in-custody medical care will carry limited weight where contemporaneous clinical records from Justice Health present a different picture of the offender's condition.
  • In dismissing the appeal, the Court assessed Justice Health's response to the appellant's ongoing complaints as reasonable, noting that a reasonable response does not require meeting every demand made by the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 100A (blackmail, maximum 10 years' imprisonment)

Cases:
- Pfeiffer v R [2009] NSWCCA 15
- R v Miranda (2002) 128 A Crim R 362
- R v Vachalec (1981) 1 NSWLR 351