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District Court 5 August 2022

R v Duncan

[2022] NSWDC 324

Sexual offences

Citation: R v Duncan [2022] NSWDC 324
Court: District Court of New South Wales
Date: 5 August 2022
Judge: Tupman DCJ

Background

The offender had been convicted by a jury of eight counts of sexual touching of children aged between 10 and 16, following a four-week trial in Queanbeyan in May 2022. The offences occurred between February and November 2019 at a campsite in Kosciuszko National Park and at the offender's property in Bega. Each offence carries a maximum penalty of 10 years imprisonment, and the relevant sentencing legislation requires that any term of imprisonment be served full time.

Sentencing had been listed for 5 August 2022. Shortly before that date, the offender was diagnosed with prostate cancer and had surgery booked at Macquarie University Hospital for 20 September 2022. He also had a colonoscopy scheduled for 16 August 2022 to investigate a possible bowel cancer condition.

The offender applied to adjourn the sentence hearing to allow him to undergo the planned surgery and recover from it. The Crown opposed the application. The Crown had previously made a detention application in the Supreme Court under s 22B of the Bail Act 2013 (NSW), which had been dismissed after the Crown itself conceded that the offender's health issues constituted special or exceptional circumstances.

  • Whether the sentence proceedings should be adjourned to allow the offender to undergo planned cancer surgery and further cancer testing
  • Whether full-time custody would prevent the planned prostatectomy from proceeding on the scheduled date
  • How the victims' interest in closure and finalisation of proceedings weighed against the offender's health circumstances in the interests of justice

Decision

Tupman DCJ accepted that the offender had been diagnosed with prostate cancer and that his treating surgeon had recommended a prostatectomy, scheduled for 20 September 2022. The court accepted that delaying surgical treatment would, more likely than not, have adverse health consequences for the offender. The colonoscopy scheduled for 16 August was also accepted as genuine and appropriately timed given widespread pandemic-related delays across the healthcare system.

The court accepted the submission that the surgery was unlikely to proceed on its scheduled date if the offender entered custody. While there was no direct evidence about when surgery might occur if he were imprisoned, the court drew on its extensive knowledge of the disruptive impact of COVID-19 on the NSW correctional system, including lockdowns, reduced transport services, and disruption to the provision of medical services to prisoners. The court accepted that accessing a private hospital for an elective prostatectomy would be particularly unlikely in that environment.

The court weighed against the adjournment the victims' legitimate desire for closure, acknowledging that the jury's verdicts had been delivered and that the remaining unknown was the length of the custodial term. However, the court also noted that the Supreme Court, when dismissing the Crown's detention application, had been aware that this adjournment application was anticipated and had not treated that prospect as a reason to revoke bail.

On balance, the court found that the interests of justice favoured granting the adjournment. The court required that proper evidence about the offender's health status and prognosis be available at sentence, so that it could be taken into account alongside the many other relevant sentencing factors. The adjournment was granted to 24 October 2022, a shorter period than the 1 November date sought, on the basis that five weeks post-surgery would be sufficient time to place the necessary medical evidence before the court.

Orders Made

  • The adjournment application was granted.
  • The matter was listed for sentence on 24 October 2022.

Key Takeaways

  • The District Court granted an adjournment of sentence proceedings where an offender facing inevitable full-time custody had imminent cancer surgery scheduled, accepting that the surgery was unlikely to proceed on its scheduled date if he entered custody.
  • A court's general knowledge of the disruptive effect of the COVID-19 pandemic on NSW correctional services, including access to medical treatment, was treated as a matter of judicial notice capable of supporting findings relevant to an adjournment application.
  • The victims' interest in finality and closure is a legitimate factor in the interests of justice analysis, but it does not automatically defeat an adjournment application where competing health considerations are sufficiently serious.
  • Where a Crown detention application has already been dismissed with knowledge that a sentence adjournment was anticipated, that history is relevant context when the court considers the same health circumstances on the adjournment application.
  • Proper sentencing requires adequate evidence of an offender's health status and prognosis; the court identified this as an independent reason to adjourn, separate from the immediate medical need, so that the sentencing exercise could proceed on an informed basis.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22B(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927