Citation: Regina v BEG [2001] NSWCCA 341 revised – 25/10/2001
Court: New South Wales Court of Criminal Appeal
Date: 7 September 2001
Judge(s): Smart AJ; Adams J
Background
The applicant, a man in his mid-fifties, pleaded guilty at the first opportunity to two counts of aggravated sexual intercourse without consent involving two children aged ten, both of whom were under his authority. The offences occurred in April 1998 at the family home while his wife was absent. He was sentenced in the District Court to concurrent terms of five years' imprisonment with a three-year non-parole period on each count, commencing 19 May 2000.
At the time of sentencing, the sentencing judge was aware that the applicant suffered serious back problems and directed that a medical assessment be undertaken promptly upon his reception into custody. The judge anticipated significant difficulties managing the condition in a custodial setting. Despite that awareness, the full severity of what the applicant would endure in custody was not appreciated at the time.
After sentencing, the applicant experienced extreme, largely unrelieved back pain throughout his incarceration. He spent extended periods confined to his cell. A specialist assessment rated his pain at ten out of ten. A surgeon told him corrective surgery would have to wait until his release.
Legal Issues
- Whether an extension of time and leave to appeal against sentence should be granted.
- Whether post-sentencing events relating to the applicant's deteriorating health and inability to obtain adequate pain management in custody could be taken into account on appeal.
- Whether the non-parole period was excessive in light of those circumstances.
Decision
The Court of Criminal Appeal confirmed the principle from R v Ehrenburg (CCA, unreported, 14 December 1990): where subsequent events can be seen as a manifestation of something that was present but either unknown or not fully appreciated at sentencing, those events may be taken into account and can justify re-sentencing where the original sentence is regarded as excessive.
The Court applied that principle here. Although the sentencing judge had been aware of the applicant's health problems, the true extent of the difficulties in managing his condition in custody had not been sufficiently appreciated at the time. Post-sentencing reports confirmed that the applicant's pain was severe, persistent, and inadequately controlled, and that definitive surgical treatment could not be provided while he remained in custody.
The Court declined to disturb the five-year head sentence, noting that without the health complications the sentence would already have been regarded as very lenient for offences of this gravity. However, acting with "considerable doubt," the Court reduced the non-parole period from three years to two years and three months, acknowledging that no lesser sentence was possible given the seriousness of the criminality involved.
Orders Made
- Extension of time to seek leave to appeal granted.
- Leave to appeal granted.
- Appeal against the term of imprisonment of five years on each count dismissed.
- Non-parole period on each count varied from three years to two years and three months, commencing 19 May 2000 and ending 18 August 2002.
Key Takeaways
- The Court of Criminal Appeal confirmed that post-sentencing events may be taken into account on appeal where they represent a manifestation of circumstances that existed at sentencing but whose significance was not, and could not have been, fully appreciated at that time.
- Serious health conditions that make custody substantially more burdensome than anticipated can, in exceptional circumstances, justify reducing a non-parole period, even where the head sentence remains undisturbed.
- In dismissing the appeal against the head sentence, the Court made clear that the gravity of the underlying offending sets a floor below which a sentence cannot fall, regardless of the prisoner's personal circumstances.
- A sentencing court's awareness of a health problem at the time of sentence does not automatically foreclose an appeal based on that condition: the question is whether the full impact of the condition in custody was sufficiently appreciated.
- The principle from R v Ehrenburg extends beyond medical complications during pregnancy (its original context) to other health conditions present at sentencing whose custodial consequences later prove significantly more serious than foreseen.
Legislation and Cases Referenced
Cases:
- R v Ehrenburg (CCA, unreported, 14 December 1990)
- R v Munday (1981) 2 NSWLR 177
- R v Vachalec (1981) 1 NSWLR 351
Legislation: None cited.