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Court of Criminal Appeal 29 November 2019

Lissock v R

[2019] NSWCCA 282

Sexual offences

Citation: Lissock v R [2019] NSWCCA 282
Court: Court of Criminal Appeal, NSW
Date: 29 November 2019
Judges: Payne JA, Davies J, Button J

Background

The applicant (referred to by the pseudonym Stanley Lissock) was convicted by jury in the District Court at Newcastle of multiple child sexual assault offences against his stepdaughter, including sexual intercourse with a child under 10 years and aggravated indecent assault. On 11 December 2017, Bright DCJ imposed an aggregate sentence of 18 years' imprisonment.

After sentencing, the applicant was diagnosed with hepatocellular carcinoma (liver cancer), a terminal illness. Medical evidence placed his life expectancy at approximately 18 months from mid-2019. The applicant sought leave to appeal against his sentence, relying in part on this fresh medical evidence.

  • Whether the original aggregate sentence of 18 years was manifestly excessive
  • Whether fresh medical evidence of a terminal illness diagnosed after sentencing should be admitted on appeal
  • Whether, if admitted, that evidence warranted the Court re-sentencing the applicant to a lesser term

Decision

The majority (Payne JA and Button J) agreed with Button J's reasons on all grounds. Davies J agreed on ground 1 and on the admission of the fresh evidence, but dissented on whether a reduced sentence was warranted.

Ground 1: Manifest excess. The Court unanimously rejected the argument that the original sentence was manifestly excessive. The offending was serious, and the sentence imposed by Bright DCJ fell within the available sentencing discretion on the facts known at the time.

Ground 2: Fresh medical evidence. The Court admitted the medical report from Professor Andrew Lloyd, an infectious diseases physician, as compelling evidence of a serious medical condition not apparent at sentencing. The majority accepted that a terminal illness would make the applicant's time in custody more difficult, both physically and psychologically, than it would otherwise have been. Button J also noted that the applicant would never again enjoy life in the community as a healthy person, a circumstance that itself made incarceration more burdensome.

Davies J's dissent. Davies J would not have reduced the sentence. His Honour observed that Professor Lloyd's report contained nothing to suggest incarceration would be significantly more onerous for the applicant, who was currently experiencing only mild and intermittent pain. Davies J also noted that the relevant authorities confirm it is the Executive's responsibility to care for sick prisoners, and that mechanisms such as release to parole on compassionate grounds under the Crimes (Administration of Sentences) Act 1999 (NSW) exist precisely to address deteriorating health. The majority acknowledged those mechanisms but concluded that the terminal diagnosis still justified a reduced aggregate sentence, even though the reduction would not, on the life expectancy evidence, result in the applicant's actual release before death.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence upheld
  • Aggregate sentence imposed by Bright DCJ on 11 December 2017 quashed
  • In substitution: aggregate head sentence of 14 years' imprisonment, with a non-parole period of 9 years and 4 months, each commencing 8 September 2017
  • First eligible parole date: 7 January 2027

Key Takeaways

  • A terminal illness diagnosed after sentence is imposed can constitute fresh evidence justifying re-sentencing on appeal, provided it is compelling and was not apparent at the time of the original sentence.
  • Under the principles in R v Jones (1993) and Anastasiou v R [2010], the threshold question is whether the original sentence was within the available discretion; only if so does the court turn to whether fresh medical evidence warrants a different sentence.
  • Ill health mitigates sentence primarily where imprisonment will be more burdensome by reason of the condition, or where incarceration carries a serious risk of gravely adverse health effects; it does not operate as a licence to avoid punishment.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the gravity of child sexual assault offences remains a central consideration that must be reflected even on re-sentencing.
  • Where a reduced sentence will not, on the evidence, result in actual early release, the Court of Criminal Appeal identified compassionate parole mechanisms under the Crimes (Administration of Sentences) Act 1999 (NSW) as the appropriate avenue for addressing further health deterioration in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M, 66A
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 160, 160AD, 270
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 102

Cases
- Anastasiou v R [2010] NSWCCA 100
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Facer (a pseudonym) v R [2019] NSWCCA 180
- Gibbons (a pseudonym) v R [2019] NSWCCA 150
- GS v R [2016] NSWCCA 266
- Iglesias v R [2006] NSWCCA 261
- Merkel v R [2019] NSWCCA 212
- RH v R [2019] NSWCCA 64
- Russell v R [2018] NSWCCA 115
- R v Jacobs [2001] NSWCCA 212
- R v Jones (1993) 70 A Crim R 449
- R v Smith (1987) 44 SASR 587
- R v Sopher (1993) 70 A Crim R 570
- R v Vachalec [1981] 1 NSWLR 351