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Court of Criminal Appeal 19 June 2024

McInnes v R

[2024] NSWCCA 104

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE FRESH EVIDENCE RELIED UPON ON APPEAL HEART CONDITION ALLEGED FAILURES BY JUSTICE HEALTH PROVISION OF MEDICATION

Citation: McInnes v R [2024] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 19 June 2024
Judges: Davies J, N Adams J (principal judgment), McNaughton J

Background

The appellant was a senior employee of a large manufacturing company who, over an eleven-year period from August 2007 to October 2018, defrauded his employer of over $2 million. He did so by submitting 53 false invoices for services never provided, exploiting the trust placed in him through his senior role. The funds were used for home renovations, mortgage repayments, investment properties, a luxury boat, and a holiday home.

The appellant pleaded guilty in the Local Court to two counts of dishonestly obtaining a financial advantage by deception under s 193E(1)(b) of the Crimes Act 1900 (NSW), with a further offence taken into account on a Form 1. On 5 December 2022, the District Court sentenced him to an aggregate term of 7 years imprisonment with a non-parole period of 4 years. The sentencing judge found special circumstances and varied the statutory non-parole period ratio to 57%, in part accounting for the appellant's serious heart condition.

The appellant, who was self-represented on appeal, sought leave to appeal against the sentence on the sole ground that Justice Health and corrective services had failed to adequately manage his cardiac condition in custody, contrary to what the sentencing judge had anticipated when imposing the sentence.

  • Whether fresh evidence of alleged failures by Justice Health in managing the appellant's heart condition in custody demonstrated that the sentencing judge had proceeded on an incorrect understanding of how that condition could be treated in custody.
  • Whether those alleged failures were sufficient to establish that the standard of medical care in custody fell below the level the sentencing judge had anticipated, warranting a reduction in sentence.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. N Adams J, with whom Davies J and McNaughton J agreed, examined the fresh evidence in detail, including materials concerning the appellant's portable heart monitoring device, his access to medication, and records from Justice Health.

The central cardiac issue was that the appellant's external portable monitoring machine, which downloads data from his implanted cardioverter-defibrillator (ICD) and transmits it to his treating cardiologist, had experienced transmission failures at times during 2023. The Court found that this difficulty had been resolved by July 2023, that no cardiac episodes had occurred during the period of malfunction, and that the appellant's treating cardiologist had confirmed that most patients do not use such devices in any event.

As to the broader complaints about custodial medical care, the Court found that most of the appellant's specific allegations were contradicted by the records. The appellant remained able to see his cardiologist in person or by Telehealth, his medication had been available to him, and at his most recent review in February 2024, his cardiologist reported that he was "stable from a cardiac viewpoint and does not require any change in therapy."

The Court concluded it was not satisfied that the sentencing judge had proceeded on an incorrect understanding of how the appellant's condition could be managed in custody. The fresh evidence did not establish that the standard of care had fallen below the level the sentencing judge had contemplated when imposing sentence and finding special circumstances.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Fresh evidence of custodial medical difficulties will not disturb a sentence where that evidence does not demonstrate that the standard of care fell below what the sentencing court anticipated when imposing the sentence.
  • The Court of Criminal Appeal confirmed that the sentencing judge had already accounted for the appellant's heart condition by finding special circumstances and varying the statutory non-parole period ratio to 57%.
  • Where complaints about custodial healthcare are contradicted by contemporaneous records, and the appellant's own treating specialist reports a stable prognosis with no required change in therapy, the threshold for appellate intervention on this basis is not met.
  • A temporary failure in the functioning of an ancillary monitoring device does not, without more, establish inadequate management of a medical condition in custody, particularly where no adverse health event occurred during the period of failure and the device was subsequently repaired.
  • In dismissing the appeal, the Court drew a distinction between the stressful subjective experience of uncertain medical equipment and objective evidence of a standard of care falling below what the sentencing court had contemplated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA (repealed), 193E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Betts v R (2016) 258 CLR 420; [2016] HCA 25
- R v Keir [2004] NSWCCA 106
- R v McInnes [2022] NSWDC 723
- R v Smith (1987) 44 SASR 587
- Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402