Citation: R (Cth) v Jia Li He (No. 2) [2021] NSWDC 769
Court: District Court of New South Wales
Date: 15 October 2021
Judge(s): Neilson DCJ
Background
The offender had pleaded guilty to one count on a Commonwealth indictment on 8 March 2021, following earlier negotiations between his legal representatives and the Commonwealth Director of Public Prosecutions. The sentencing proceedings had a protracted history, commencing with his arrest in April 2019 and involving a contested factual dispute about his role in the offence. A substantive judgment on the facts was delivered on 9 July 2021 (reported as R (Cth) v Jia Li He (No 1) [2021] NSWDC 450).
After that judgment, the offender sought an Intensive Corrections Order rather than full-time imprisonment. A sentencing assessment report was ordered and the matter was adjourned to 13 September 2021. At that appearance, a further adjournment was granted to allow the offender to receive a COVID-19 vaccination.
When the matter returned on 15 October 2021, the offender applied for a further adjournment, this time to some point in 2022. The basis for the application was that his elderly father required care following a series of urological and respiratory medical episodes, and that an upcoming urological procedure created a pressing need for the offender's assistance.
Legal Issues
- Whether the family circumstances relied upon by the offender, specifically the health of his elderly father and the anticipated surgical procedure, justified a further adjournment of the sentencing proceedings to an unspecified date in 2022.
Decision
Neilson DCJ examined the medical evidence in detail. The exhibits tendered showed that the offender's father had attended multiple hospital emergency departments and undergone urological procedures, including a bladder neck incision and the subsequent insertion of a suprapubic catheter. However, the planned further surgery was described as day surgery only, with no significant complications anticipated.
The District Court found that the level of care the offender actually provided to his parents was limited. The evidence showed he visited three or four times per week, did the family shopping, and occasionally assisted his father with toileting. The father's wife was the primary carer at home, and a district nurse also attended. A granddaughter of the offender's father assisted as an interpreter and had in fact conducted the relevant conversation with the treating urologist.
His Honour noted that no confirmed date for the proposed surgery had been established. The information about timing came not directly from the doctor to the offender, but through the granddaughter during a telephone conversation the offender listened to. The court observed that the pattern of hospital attendances appeared to reflect repeated, generally minor episodes rather than a condition requiring the offender's continuous presence.
The court concluded that, given the proceedings had been on foot for over two and a half years since the offender's arrest, the litigation needed to be finalised. The family circumstances remained relevant to the type of sentence to be imposed, but did not justify a further adjournment to an uncertain future date. The application was refused.
Orders Made
• The application for adjournment is refused.
Key Takeaways
- Refusing the adjournment, the District Court weighed the seriousness of the disruption to sentencing proceedings against the actual level of care the offender was providing to his father, finding the latter to be limited and shared with other family members.
- The absence of a confirmed date for the proposed surgery weighed against the application, as an adjournment would have been to an indeterminate date in 2022 with no certainty about when the matter could be relisted.
- Family caring responsibilities may be relevant to the nature of a sentence ultimately imposed, but do not automatically justify a postponement of sentencing proceedings.
- Where a series of medical episodes have been characterised by minor interventions and discharge without significant complications, a court may treat an anticipated further procedure cautiously when assessing whether it constitutes a genuine impediment to proceedings.
- The length of time since arrest, exceeding two and a half years at the point of the application, was a material factor in the court's assessment that the proceedings required finality.
Legislation and Cases Referenced
Cases:
- R (Cth) v Jia Li He (No 1) [2021] NSWDC 450
Legislation:
- Nil cited in this decision.