Citation: R v DB [2001] NSWCCA 320 revised - 26/02/2002
Court: NSW Court of Criminal Appeal
Date: 15 August 2001
Judge(s): Wood CJ at CL; Sperling J
Background
The applicant, a retired medical practitioner aged 71 at the time of sentencing, pleaded guilty in the District Court to serious child sexual offences committed against his two grandsons over approximately two and a half years. The offences included fellatio on a seven-year-old child and fondling of a five-year-old child, with further similar offences taken into account on a Form 1 (a procedural mechanism by which additional offences are acknowledged and factored into sentencing without a separate conviction being recorded).
The District Court sentenced the applicant to five years' imprisonment with a non-parole period of two and a half years, commencing 30 June 2000. At the time of sentencing, the applicant was already in poor health, having undergone open heart surgery prior to that date.
After sentencing, the applicant was diagnosed with prostate cancer. Medical evidence established that the condition had likely existed at the time of the original sentence, though it was not then known. The applicant sought leave to appeal out of time, relying on this diagnosis and associated health complications as grounds for a fresh sentencing exercise.
Legal Issues
- Whether the Court of Criminal Appeal could conduct a fresh sentencing exercise, without first establishing error by the sentencing judge, where a serious medical condition existed at the time of sentencing but was only diagnosed afterwards.
- Whether the applicant's post-sentencing diagnosis of prostate cancer, combined with existing serious cardiac conditions, warranted a reduction in the sentence originally imposed.
- Whether "special circumstances" existed justifying a departure from the standard non-parole period ratio (a ratio that ordinarily limits the proportion of a sentence served in custody before parole eligibility).
Decision
The Court confirmed, citing Smith (1987), Spagnolo (2000), and Burrell (2000), that where a medical condition existed at the time of sentencing but was not then known, the appellate court may conduct a fresh sentencing exercise without any requirement to identify error on the part of the original sentencing judge. This is a recognised exception to the ordinary rule that an appellant must first demonstrate error before a sentence can be disturbed.
Sperling J reviewed the medical evidence in detail. The applicant had a prosthetic heart valve, significant cardiac arrhythmias, and a history of open heart surgery. His newly diagnosed prostate cancer, combined with associated urinary tract infections, created a serious risk of precipitating cardiac arrhythmias and potentially life-threatening infection. The treating doctor revised his estimate of the applicant's annual mortality risk to 10 per cent above that of a person of the same age without heart disease, suggesting no better than a 50 per cent chance of survival over five years.
The Court accepted that imprisonment had been, and would continue to be, substantially more burdensome for the applicant than for a person in ordinary health. Sperling J also applied the High Court's decision in Ryan [2001] HCA 21, which confirmed that a court is bound to consider otherwise good character in mitigation, even in cases involving serious offending. A discount of 20 per cent was allowed for the utilitarian value of the early guilty pleas, which spared the child victims from giving evidence.
Taking all mitigating factors together, including age, genuine remorse, an unblemished prior record, and the gravity of the health risks posed by continued incarceration, the Court found this an exceptional case warranting resentencing. Special circumstances were found based on the severity of the applicant's medical conditions and the degree to which imprisonment was more onerous for him than in the ordinary case.
Orders Made
- Time extended for the application for leave to appeal and for the appeal itself.
- Leave to appeal granted; appeal allowed.
- Applicant resentenced as follows:
- Count 1: imprisonment for three years commencing 30 June 2000, with a non-parole period of one year and six months, expiring 29 December 2001.
- Count 2: fixed term of twelve months commencing 30 June 2000, served concurrently with Count 1.
- Applicant to be released on parole on 30 December 2001, subject to supervision by the Probation and Parole Service.
Key Takeaways
- A fresh sentencing exercise on appeal is available where a medical condition existed at the time of the original sentence but was not then known, and the applicant need not establish that the original sentence was excessive on the evidence then before the sentencing judge.
- Ill health operates as a mitigating factor in sentencing where imprisonment will bear more heavily on an offender by reason of their health, or where there is a serious risk that custody will have a gravely adverse effect on their health.
- Under Ryan [2001] HCA 21, courts are bound to take into account an offender's otherwise good character in mitigation, even where the offending itself is serious in nature.
- For elderly offenders, each year of imprisonment represents a larger proportion of their remaining life expectancy, and this is a recognised consideration in determining the appropriate sentence.
- Special circumstances justifying an adjustment to the standard non-parole period ratio can be established where the particular burden of imprisonment on an offender, by reason of serious medical conditions, is markedly greater than in the ordinary case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (assault and act of indecency on a person under ten years)
- Crimes Act 1900 (NSW), s 78H (homosexual intercourse with a person under ten years)
Cases:
- Bailey (1988) 34 ACrimR 154
- Burrell (2000) 114 ACrimR 207
- Hunter (1984) 36 SASR 101
- McDonald (1988) 38 ACrimR 470
- Ryan [2001] HCA 21
- Sellen (1991) 57 ACrimR 313
- Smith (1987) 44 SASR 587
- Spagnolo (2000) 114 ACrimR 98