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Court of Criminal Appeal 13 May 2010

ANASTASIOU, Andrew v R

[2010] NSWCCA 100

Theft & property
CRIMINAL LAW SENTENCE APPEAL APPLICANT SUFFERING TERMINAL ILLNESS NO OTHER GROUND OF APPEAL NO BASIS IN PRINCIPLE TO ALLOW APPEAL APPEAL DISMISSED

Citation: ANASTASIOU, Andrew v R [2010] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 13 May 2010
Judges: McClellan CJ at CL, James J, Rothman J

Background

The applicant was sentenced in the Parramatta Drug Court in June 2009 for a series of larceny offences, an attempted break and enter, and possession of housebreaking implements. The sentencing judge imposed an overall non-parole period of one year and eight months, with a head sentence of two years and eight months. The sentences had previously been suspended under the Drug Court Act 1998 but were activated following further offending.

After sentencing, the applicant was diagnosed with incurable hepatocellular cancer arising from cirrhosis of the liver, itself caused by chronic hepatitis C infection from long-term drug use. Medical experts estimated an 80% likelihood of death by the end of December 2010. The tumour was considered inoperable and had already spread beyond the liver, ruling out transplantation.

The applicant sought leave to appeal on the sole ground that his terminal illness, while likely present at the time of sentencing, was undiagnosed and therefore not placed before the sentencing judge.

  • Whether fresh medical evidence, relating to a condition that existed but was undiagnosed at sentencing, could be admitted and acted upon by the Court of Criminal Appeal.
  • Whether a terminal illness diagnosed after sentencing constitutes a proper basis for appellate intervention in a sentence that is otherwise unimpeachable.
  • Whether the hardship of imprisonment caused by a terminal illness is a matter for the courts or for the parole authority and executive government.

Decision

Rothman J (with whom McClellan CJ at CL and James J agreed) acknowledged that the applicant's circumstances were genuinely tragic and evoked considerable sympathy. However, the Court found that sympathy alone cannot displace principle as the governing test on a sentence appeal.

The Court noted that the only ground of appeal was the applicant's health. There was no complaint about the process adopted at sentencing, the findings of fact, the principles applied, or any other aspect of the hearing. Because the sentence was otherwise sound, any intervention would need to rest on the medical evidence alone.

On the admissibility of the fresh medical evidence, the Court recognised that events or conditions arising after sentence are generally not a basis for disturbing a sentence. The Court of Criminal Appeal is confined, under the Criminal Appeal Act 1912, to correcting identifiable or manifest error of the kind that would permit appellate intervention in a discretionary decision, applying the well-known standard from House v R (1936) 55 CLR 499. A sentencing judge cannot be in error for failing to take into account something that was not before the court.

Turning to the question of mercy, Rothman J held that releasing the applicant at this stage would reflect sympathy rather than principle, and that sympathy is the province of the executive, not the appellate court. The Court noted that sections 160(1) and 270 of the Crimes (Administration of Sentences) Act 1999 already provide mechanisms for the Parole Authority to release a dying offender and preserve the executive's prerogative of mercy. The Court was also satisfied that the applicant was currently being appropriately accommodated and treated within the prison system, including access to specialist care at Prince of Wales Hospital when required.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence that is otherwise unimpeachable cannot be disturbed on appeal solely because the offender is diagnosed with a terminal illness after sentencing, even where that illness was likely present but undiagnosed at the time.
  • The Court of Criminal Appeal confirmed that its function is the correction of legal error in the exercise of a sentencing discretion, not the dispensation of mercy; the standard from House v R (1936) 55 CLR 499 remains the relevant threshold.
  • Where compassionate release is warranted, the proper avenues are the Parole Authority (which has power under s 160(1) of the Crimes (Administration of Sentences) Act 1999 to release a dying offender even outside normal parole eligibility) and the executive prerogative of mercy under s 270 of the same Act.
  • Inadequacy of medical care was not established on the facts: the court found that Justice Health and access to external specialists provided appropriate treatment within the prison system.
  • In dismissing the appeal, the Court drew a clear distinction between the sympathy a court may feel and the principled basis required to intervene in a lawfully imposed sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 160(1), 270
- Criminal Appeal Act 1912 (NSW)
- Drug Court Act 1998 (NSW), s 7(3)

Cases:
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Iglesias v R [2006] NSWCCA 261
- R v Bailey (1988) 35 A Crim R 458
- R v Josef Mioduszewski [2004] NSWCCA 154
- R v Maarbani [2001] NSWCCA 509
- R v MJM [2004] NSWCCA 66
- R v Smith (1987) 44 SASR 587
- R v Sopher (1993) 70 A Crim R 570
- R v Willard [2001] NSWCCA 6