Citation: R v Marszalek [2023] NSWDC 574
Court: District Court of New South Wales
Date: 10 November 2023
Judge(s): Buscombe DCJ
Background
The offender pleaded guilty in the Local Court to entering a dwelling house with intent to commit a serious indictable offence (intimidation) in circumstances of aggravation, under s 111(2) of the Crimes Act, carrying a maximum penalty of 14 years imprisonment. He was committed to the District Court for sentence in September 2022. The offending arose from a late-night home invasion at Strathfield in November 2021, during which the offender, his son, and a third person entered the victim's home wearing masks. Although the offender did not participate in a physical assault on the victim, he was aware before arriving that his son was drug-affected and likely to act unpredictably.
Following his arrest, the offender was diagnosed in July 2022 with advanced primary liver cancer with lymph node metastases. He was granted bail in September 2022, with a Justice Health officer having formed the opinion that he would not survive his sentence or was totally and permanently unfit for correctional centre discipline. Medical evidence before the court included a report from a palliative medicine specialist dated March 2023, which estimated the offender's likely prognosis at less than twelve months.
The offender applied for a permanent stay of the sentence proceedings on the basis of his serious and deteriorating health. He did not appear at the hearing, and his legal representatives were unable to contact him.
Legal Issues
- Whether the sentence proceedings against the offender should be permanently stayed on the ground of his terminal illness and poor prognosis
- What legal test applies to an application for a permanent stay of sentence proceedings based on ill health
- Whether the evidence before the court satisfied that test
Decision
Buscombe DCJ described a permanent stay of criminal proceedings as an exceptional remedy, characterised by the High Court as drastic and tantamount to a continuing immunity from prosecution. The power to grant such a stay requires the court to be satisfied that continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so oppressive as to constitute an abuse of process, following R v Edwards [2009] HCA 20.
His Honour noted that no authority had been cited in which a permanent stay of sentence proceedings (as distinct from a trial or special hearing) had been granted on the basis of medical condition alone. In sentencing proceedings, a terminal or serious illness is itself a relevant factor for the sentencing court to weigh, meaning the court can already accommodate the offender's medical circumstances within the sentencing discretion. This made a permanent stay on fairness grounds an even more exceptional step in the sentencing context than in the trial context.
Drawing on the tests applied to special hearings and trials, including the formulation from Subramaniam v R (2004) HCA 5 of whether proceeding would be "out of accord with common humanity," and the Court of Criminal Appeal's articulation in Kitchingman v R [2023] NSWCCA 4 of whether continuation would be "manifestly unfair" or would "bring the administration of justice into disrepute," Buscombe DCJ held that the relevant threshold for staying sentence proceedings requires evidence that the offender is unable to participate in the proceedings and is unlikely to become capable of doing so in the foreseeable future.
On the evidence before the court, the offender had not established that he was unable to participate in the sentence proceedings. Even allowing for deterioration since the March 2023 medical report, the evidence did not support a conclusion that his physical condition rendered participation impossible. The application was refused and the matter was directed to proceed to sentence.
Orders Made
- The application to permanently stay the sentence proceedings is refused.
- The matter is to proceed to sentence.
Key Takeaways
- A permanent stay of criminal proceedings is an exceptional remedy, and the District Court confirmed it is an even more exceptional step in the sentencing context than in a trial, because a sentencing court can already take serious or terminal illness into account when determining the appropriate sentence.
- The test articulated for staying sentence proceedings on grounds of ill health requires evidence that the offender is unable to participate in those proceedings and is unlikely to become capable of doing so in the foreseeable future.
- Buscombe DCJ drew on principles from the High Court decisions in Subramaniam v R and R v Edwards, as well as the Court of Criminal Appeal's formulation in Kitchingman v R, applying them by analogy to the sentence proceedings context.
- A prognosis of less than twelve months and a finding that the offender would not survive his sentence did not, without more, establish that he was unable to participate in the proceedings.
- No authority was identified in the judgment in which a permanent stay of sentence proceedings (as opposed to a trial or special hearing) had previously been granted on the basis of an offender's medical condition.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 111(2)
- Crimes (Administration of Sentences) Regulation, cl 285
Cases:
- Hakim (1989) 41 ACrim R 372
- Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
- Kitchingman v R [2023] NSWCCA 4
- R v Glennon (1992) 173 CLR 592
- R v Edwards [2009] HCA 20
- Subramaniam v R (2004) HCA 5