District Court New South Wales Medium Neutral Citation: R v Duncan [2022] NSWDC 324 Hearing dates: Friday 5 August 2022 Date of orders: Friday 5 August 2022 Decision date: 05 August 2022 Jurisdiction: Criminal Before: Tupman DCJ Decision: Application to adjourn sentence proceedings is granted. Catchwords: CRIMINAL PROCEDURE — Adjournment Application — Sentence proceedings — Application of offender, opposed by Crown — Sentence following verdicts of guilty for 8 counts of sexual touching of children between 10 and 16 — Maximum penalty of 10 years imprisonment — Full-time custody inevitable for most offences — Crown Detention Application following trial previously dismissed in Supreme Court — Possibility of sentence adjournment disclosed in those proceedings — Adjournment of sentence sought for offender to undergo cancer surgery and further cancer testing both scheduled to occur soon — Delaying surgical treatment will likely have adverse impacts on offender's health — Reference to disruptive impact of COVID-19 pandemic on the NSW Correctional system including the provision of medical services to prisoners — Finding that planned cancer surgery unlikely to occur on or before scheduled date if offender in custody — Victims desire for closure and finalisation considered — Need for Court to have proper evidence about the offender's health status and prognosis at sentence — On balance in the interest of justice to allow the adjournment. Legislation Cited: Bail Act 2013 (NSW), s 22B, (1)(b); Crimes (Sentencing Procedure) Act 1999 (NSW). Cases Cited: Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927. Texts Cited: Inspector of Custodial Services (NSW), Health Services in NSW Correctional Facilities (March 2021); Justice Health and Forensic Mental Health Network (NSW), Overview of Services (August 2019). Category: Procedural rulings Parties: Regina (Crown) Neil Duncan (Offender) Representation: Counsel: Ms. C. Goodhand for the Crown Mr. R. Pontello SC with Ms. T. O'Rourke for the Offender Solicitors: Mr. G. Gaynor for the Crown Ms. S. Hamon for the Offender File Number(s): 2020/00317451 Judgment 1. HER HONOUR: The offender Neil Duncan is to be sentenced for eight counts of sexual touching of children aged between 10 and 16. The matter is listed for sentence today and there is initially an application for adjournment brought on his behalf. The adjournment is sought primarily to allow him to undergo serious cancer surgery on 20 September, and secondarily, as I understand it, to allow him also to undergo further testing for a potential additional cancer condition. The adjournment is sought to a date not before 1 November 2022. 2. The offender is to be sentenced following verdicts by a jury on eight counts of sexual touching involving victims aged between 10 and 16. These offences occurred on various dates between February and November 2019. Six of them occurred at a campsite in the Kosciuszko National Park and two of them occurred at the offender's property which was then in Bega. None of these offences occurred at or in connection with any Pony Club activities. 3. The maximum penalty for each of these offences is 10 years imprisonment. As a result of provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), any term of imprisonment imposed by the Court must be served full time and cannot be served by way of a community-based sentence. 4. The trial in this matter proceeded over four weeks in Queanbeyan in May of 2022. It was delayed beyond the estimated two weeks because various people, including the accused's legal representatives and members of the jury, tested positive for COVID-19 and there was a need for the proceedings to be adjourned on more than one occasion to allow for isolation. 5. The jury convicted the accused of the eight offences on 2 June 2022. The indictment before the jury alleged similar offences against five complainants in total. The accused was acquitted in relation to two counts relevant for one of those complainants, and all counts for the fifth complainant. There were two counts on which the jury could not agree in relation to one of the complainants and they were discharged on those counts. 6. The sentence date of 5 August was set by agreement of the parties on that date. Bail was granted and continued. About a week later the offender was arrested on a weekend and brought before a court in the Northwest of New South Wales on an allegation that he breached the bail conditions imposed on 2 June. That breach was found not to have been established, and he was re-released on bail. 7. There were then proceedings before the Supreme Court on 11 July 2022 brought by the Crown as a detention application pursuant to the recently enacted s 22B of the Bail Act 2013 (NSW). I have had the benefit of reading Justice Bellew's judgment in relation to that application published as Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927. The Crown in that hearing conceded that the offender's health issues amounted to special or exceptional circumstances relevant for a consideration of s 22B(1)(b) of the Bail Act 2013 and the detention application was dismissed. 8. The evidence in relation to the offender's health issues before the Supreme Court on that detention application would appear to be exactly the same as the evidence relied on today in support of the adjournment application. I accept from that evidence that during the course of the trial in Queanbeyan, when there was that break to enable jurors and others to isolate, the offender undertook medical tests including blood tests, an ultrasound, an MRI and a biopsy, most of which occurred after the jury's verdict. 9. I accept that on 5 July 2022 he was informed by his surgeon, whose report is tendered on this application, that he had prostate cancer for which the surgeon recommended a prostatectomy. That surgery is due to take place on 20 September. I accept from the report of his surgeon that the recovery time is up to six weeks, with the first two weeks constituting the acute recovery period, with a total recovery period of six weeks. There would appear to be no dispute that this diagnosis has been appropriately made and after appropriate testing, and that this course of treatment is booked to occur. 10. I am informed, and accept, that the surgery will take place at Macquarie University Hospital. The Court takes notice of the fact that this is a private hospital. In infer from that that the offender is privately insured. I further accept that in addition, the offender has undertaken other tests since then indicating the possibility of bowel cancer and that he has a colonoscopy scheduled for 16 August 2022. I am not informed as to where that is to occur, but I accept from his unchallenged affidavit evidence that this was the first date available, and the Court can take judicial notice of the fact that as a result of the COVID-19 pandemic, investigations and procedures of this type have been delayed right across the community, and this would appear to be a reasonable time period to allow that investigation to occur. There are also other tests to be undertaken in due course but in a longer time period that, it seems me, are largely irrelevant to this adjournment application. 11. The adjournment is sought to allow the offender to undergo the prostatectomy and for there to be a reasonable recovery time then available. The Court can take judicial notice of the fact that a diagnosis of prostate cancer is a serious diagnosis, and that in circumstances where a treating surgeon has recommended surgical removal as the appropriate treatment option, that delaying that surgical treatment would, more probably than not, have adverse impacts on the offender's health, or for that matter, on any person finding himself in that situation. 12. In support of the application for adjournment there are portions of the Report of the Inspector of Custodial Services presented, presumably, to the Parliament in March 2021, referred to in an affidavit on behalf of the offender, and then the whole of the report tendered. I have read the excerpts referred to in the affidavit of the offender's solicitor and attempted to look at them in the context of the overall report in the limited time available, that report having only been provided to me today. 13. It is the case that report was written in March 2021, so quite recently, albeit in relation to events within the New South Wales correctional system in the period up to 2018. I accept that the Inspector acknowledged that there had been improvements in the system since 2018. I also take into account the fact that the impact of the COVID-19 pandemic has been devastating within the New South Wales correctional system, and the Court has considerable experience of the effects on the very basic operations of the Court because of the impact of COVID-19 within the correctional system. Some of those have involved prisoners not being able to attend Court and often not being able to attend AVL suites so that they can appear in Court in that way. Further, the Court is aware of the very significant number of days in the last two and a half years where, for good reason, New South Wales prisons have been locked down to prevent the spread of COVID-19 within the prisons which has led to a very large number of prisoners being locked in cells, unable to be taken out of their cells for any purpose at all. 14. These are circumstances well known to NSW Courts generally, and to this Court in particular, which has attempted to continue to run its services since the first lockdown in 2020. These have all been perfectly appropriate mechanisms undertaken by New South Wales Corrections in an attempt to avoid the spread of COVID-19 within the prisons but have had very disruptive consequences on the smooth operation of all aspects of the prison system including the provision of medical services to prisoners. The Court is very aware of this and has often been required to adjourn proceedings because of the impact that COVID-19 has had on the smooth running of the prison system, and the access of prisoners to various services including access to a psychologist for the preparation of reports for the Court, access to their legal advisors for the purpose of advice and the like and also access to Community Corrections officers for the provision of court ordered sentence assessment reports. There have also been the inevitable impacts on staffing levels for transport services provided by Corrective Services including transporting prisoners between correctional facilities to courts and, I accept, to medical facilities outside individual prisons where that is necessary. 15. It is argued on behalf of the offender on this adjournment application, or in support of this adjournment application, that if he were in custody from today or shortly after today, that there is little likelihood that his planned prostatectomy would proceed on 20 September. There is no evidence as such about when that would be likely to occur if he were to go into custody, but on balance I accept that this submission is made good. 16. The Crown has tendered a document entitled Overview of Services within the Justice Health and Forensic Mental Health Network. It is in fact dated August 2019, which of course is before the impact of the COVID-19 pandemic on Corrective Services and the provision of medical services within Corrections. 17. Most of that report is not relevant for the matter before me, referring as it does in large part to a different category of prisoners or the provision of different medical and quasi-medical services. The entry on page 12 however, under the heading 'Integrated Care Services', would appear to be relevant to the circumstances now before me. I accept from that summary that if the offender were to go into custody today or in the near future this is the likely timeline: 1. He will be assessed in relation to his general health and presumably and hopefully in relation to the diagnosis of prostate cancer. This will not however be an assessment undertaken by his current surgeon because that person is not part of the Network; 2. This assessment would not occur, I accept, until after a period of isolation which, is known to the Court, follows the entry into custody of any prisoner in the current COVID-19 pandemic situation; 3. There would need to be a medical consultation and decision made that he be referred for a prostatectomy; 4. There would need to be a booking made for any such surgery to be undertaken at a public hospital because surgery of this nature is not carried out, it is known to the Court, at hospitals within the prison system. The location of the hospital at which any such surgery would occur is referred to in the last of the four paragraphs under that heading 'Integrated Care Services'. It is a public hospital; 5. It is likely that there would be delay in all of this occurring and I take into account that portion of page 12, third paragraph, under the heading 'Integrated Care Services' as follows: 'Where patients require surgery, bookings are prioritised as for patients in the general community.' 1. Any such surgery, if ordered, would as I have already said, take place at the nominated hospital, a public hospital. The court takes judicial notice, and can take judicial notice, of the fact that surgery for public patients in the general community, not in custody, at any time, and particularly in the present circumstances because of the impact of the COVID-19 pandemic on the provision of services within public hospitals, occurs in circumstances where there is considerable delay in accessing surgical treatment as a public patient in public hospitals in Sydney. 2. I accept the submission overall that there is almost no possibility that the offender would be able to access the surgical treatment required to deal with his prostate cancer, either on 20 September or at any time soon after that. The evidence as I have said does not allow me to make a finding of when that is likely to occur if he is incarcerated in the New South Wales prison system but again the Court's experience is that the general population at present has difficulty accessing surgery in public hospitals and the Court's experience of prisoners accessing surgery or attempting to access surgery is at least the same if not somewhat more delayed. 3. I accept that it is the genuine aim of the Justice Health Network that all prisoners are monitored for chronic and complex diseases, including cancer, and that from the time they are received into custody and for a period following their release into the community, it is the aim of the network to ensure that they receive '…seamless, timely, appropriate and effective health care'. I also accept however that their resources are overstretched and that in particular the impact of the COVID-19 pandemic has placed even greater strains on staff working within that system. This is not a criticism of the system, simply a statement of the realities. 4. Therefore, I accept that this offender is highly unlikely to receive the surgical treatment that he apparently requires, according to his surgeon, if he is in custody, certainly not by 20 September and nor in a period reasonably quickly thereafter. 5. I further accept that his health circumstances are not likely to improve if this surgery is delayed and I make that finding in circumstances where a recognised and properly qualified surgeon has already recommended this form of treatment for his condition. His health circumstances, I accept, are likely to deteriorate if he goes into custody because he will not have immediate access to this surgery. 6. The issue on this adjournment application is therefore whether or not it is in the interests of justice for this sentence to be delayed so that this can occur. The Crown opposes the adjournment application. As it is, the sentence will not be completed today. There is a likelihood that the earliest time this Court could deliver a reasoned and reserved judgment is early September which is just before the scheduled surgery. The outcome of the surgery and more detailed evidence about the offender's prognosis following that surgery, and for that matter any other test that he might undertake between now and the final sentence, are relevant considerations in determining the appropriate sentence. 7. The Crown argues that it is not in the interests of justice to adjourn the proceedings, as I understand it for two reasons: 1. It is argued that there has been no evidence provided that the surgery required by the offender is likely to be delayed. I do not accept that that is made good for the reasons I have already outlined. 2. The Crown argues that the victims of the offences would benefit from a degree of closure by knowing the outcome. I accept that that is probably the case. 1. Presumably the victims are comforted to an extent by the fact that the offender was convicted by the jury for the offences involving them and the fact of findings made by me as long ago as 2 June 2022, and reiterated by His Honour Bellew J in the detention application, that a period of full-time custody is inevitable for at least the bulk of these offences. Presumably, they are also comforted by the fact that the offender himself acknowledged this to be the case in his evidence tendered on the detention application in the Supreme Court. No doubt they would be further benefitted if they know the final outcome of these proceedings. The only issue however left for them to know is the length of the gaol term. 2. I take all of that into account in considering the Crown's submission that their desire to have closure from the completion of these proceedings is a factor to take into account in considering the interests of justice, and I do so. It is however a balance to be undertaken by the Court and whether or not any adjournment application is granted depends on whether it is in the interests of justice to do so. 3. When making this determination I also take into account the fact that the Supreme Court, when the Crown's detention application was before it, was on notice that this adjournment application was a possibility and in fact went so far as to say it was envisaged that it was such a possibility. The Supreme Court did not in the circumstances however envisage that to be a barrier to continuing his bail and dismissing the detention application. 4. On balance, it seems to me that it is in the interests of justice that the offender be able to undergo his necessary cancer surgery as soon as possible which on the evidence before me is to take place on 20 September this year, if he is in the community. It is likely to be much longer into the future if he were in custody. It is in the interests of justice that the Court has proper evidence about his health status and his prognosis so that that factor can be taken into account, together with the many other factors which are relevant for any sentencing judge, before finalising these sentences and indicating the appropriate length of the terms of imprisonment that will inevitably be set for at least six of the matters before the Court. 5. For that reason, I am satisfied that the application for adjournment should be granted. I will not however extend it to 1 November 2022. The matter will be listed before me for sentence on Monday 24 October 2022, the first date that I am back in the registry after a period of leave. By that stage he will have had five weeks following surgery and he should be well enough at that stage to come to court and for his legal representatives to have whatever evidence is required of his prognosis. Five weeks post-surgery of this type is sufficient for that material to be before the Court. ********** Amendments 10 August 2022 - First name of offender included in title in error - title amended to reflect only offenders sir name. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2024