New South Wales Court of Criminal Appeal CITATION : Regina v Cocking [2000] NSWCCA 435 FILE NUMBER(S) : CCA 60305/98 HEARING DATE(S) : 14/2/00 JUDGMENT DATE : 14 February 2000 PARTIES : Regina v Keith Alan Cocking JUDGMENT OF : Sully J at 42; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0314 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : M Ierace (Appellant) C K Maxwell QC (Crown/Respondent) SOLICITORS : Legal Aid Commission of NSW (Appellant) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal - 12 counts of indecent assault of females under the age of 16 - fresh evidence that at the time of sentence the appellant was, unknown to the appellant, suiffering from cancer of the prostrate and other medical conditions - question whether the additional evidence should lead to a reduction in sentence LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 Regina v L (Unreported) NSWCCA 17 June 1996; CASES CITED: Regina v Jones (1993) 70 A Crim R 449; AB v Regina (1999) 73 ALJR 1385. DECISION : Appeal upheld - minimum term varied IN THE COURT OF CRIMINAL APPEAL CCA60305/98 SULLY J CARRUTHERS AJ Monday, 14 February 2000 REGINA v Alan Keith Cocking JUDGMENT 1 CARRUTHERS AJ: The applicant, Alan Keith Cocking, seeks leave to appeal against sentences imposed upon him by his Honour Judge Howie QC at the Newcastle District Court on 24 April 1998. The applicant had earlier pleaded guilty to twelve counts of indecent assault. 2 The offences were committed against twelve complainants being females under the age of sixteen years, who were all members of the applicant's extended family. Their ages ranged from five years to twelve years. The counts were pursuant to either s 76 or s 61E(1) of the Crimes Act 1900 as amended. Both sections are now repealed. 3 The maximum penalties prescribed were five years imprisonment for the former offence and six years for the latter. The offences occurred between 1 June 1955 and 31 December 1984. There were an additional 28 allegations of sexual assaults contained in the statements of the complainants which were tendered to the Court. The complainants were from two generations of the applicant's extended family and, indeed, included children of some complainants. 4 The applicant stood to be sentenced as a person who was in a position of trust and of authority in relation to each complainant. Over the period of the offences the applicant was aged between 25 and 55. He was born on 27 July 1929 and accordingly at the time of sentence he was aged 68. He had no prior convictions. Judge Howie effectively sentenced the applicant to an overall sentence of seven years with a minimum term of four years and six months. 5 In respect of count two, his Honour sentenced the applicant to eighteen months imprisonment to commence on 23 April 1998 and to expire on 22 October 1999. In respect of count ten, his Honour imposed a fixed term of 18 months to commence on 23 October 1999 and to expire on 22 April 2001. 6 In respect of count five, which, for sentencing purposes, is of particular significance, his Honour imposed a minimum term of 18 months to commence on 22 April 2001 and to expire on 21 October 2002, together with an additional term of two years six months to commence on 22 October 2002 and to expire on 21 April 2005. 7 In relation to counts one, three, four, six, seven, eight, nine, eleven and twelve his Honour imposed a fixed term of 12 months to commence on 23 April 1998 and to expire on 22 April 1999. 8 It is not necessary to note the detail of the objective and subjective matters dealt with by Judge Howie in his comprehensive remarks on sentence. In written submissions on behalf of the applicant there was an acceptance that the overall sentences in respect of the minimum terms, the additional term and the fixed terms were within the discretionary range available to his Honour. 9 In argument before us Mr Ierace of Senior Counsel for the applicant did, however, submit that there was a failure on the part of the learned sentencing judge to give due weight, in all the circumstances, to the pleas of guilty by the applicant. I shall return to that later. 10 On the basis of the then evidence his Honour said during his remarks on sentence: "Fortunately for the prisoner he is generally in good physical and mental health and therefore prison should not be a greater burden upon him than it would be upon other prisoners of his age and background." 11 However, in the four months following the imposition of his sentence the applicant began to experience symptoms which warranted medical investigation. These included angina and problems with an earlier diagnosed renal cyst, as well as a urinary complaint. 12 Professor Richard Millard, a specialist urologist, following a consultation on 9 September 1998, diagnosed the applicant as having a malignant cancer of the prostate. Professor Millard expressed the opinion that it is "highly likely" that the applicant had contracted the cancer prior to the date of his sentence and expected that the onset of symptoms would have occurred in about April 1998. 13 The treatment warranted by the cancer was initially hormone therapy followed by daily radiation therapy for a period of six to eight weeks. The applicant's prognosis depends upon whether the cancer responds to this treatment, so Dr Millard indicated in his first report dated 25 June 1999. If it did not, Professor Millard thought that he may not survive the balance of his minimum term. 14 Following the discovery of the applicant's health problems Dr Westmore, psychiatrist, concluded that the applicant "Psychologically is despondent and is best described as having an adjustment disorder with a depressed mood state. He finds imprisonment particularly stressful." Dr Westmore considered that if the applicant's cancer metastases then he will be at a significant risk of completing a self-harming act. Certainly his medical conditions would impose a greater burden on his ability to cope with his sentence. 15 Dr Westmore also commented on the fact that since the applicant, who was during his working life a miner, was buried in a mining accident as a young man, he has suffered from claustrophobia, and has experienced difficulty coping with being locked in a cell for extended periods. I am referring here of course to a report by Dr Westmore subsequent to the sentencing of the applicant. However there was an earlier report by Dr Westmore before the sentencing judge in which, interestingly, no reference was made to the claustrophobia. 16 Counsel for the Crown opposed this application and referred to certain aspects of the medical evidence. In his earlier report Professor Millard stated that appropriate treatment is available to the applicant at the Prince of Wales Hospital and the Long Bay Gaol. The treatment has a relatively low level of side effects. 17 In the earlier report Professor Millard stated that the applicant was "currently asymptomatic and will get little in the way of troublesome symptoms as a result of radiotherapy". Professor Millard further stated that it was quite difficult to predict whether the applicant's medical condition would impose a greater burden on his ability to cope with the sentence. He said "Clearly he may have a stormy time after his radiotherapy but this should only be transient". 18 Our attention was also drawn to the fact that Dr Westmore had expressed the view in his pre-sentence report that the applicant was despondent and probably depressed and, at that stage, Dr Westmore considered the applicant to be at some risk of self-harm. 19 During his remarks on sentence Judge Howie commented: "It is his first gaol sentence and it will no doubt have a severe and deleterious effect upon him. It seems to me that I should make some allowances for the contingencies and uncertainties created by his age and the length of the sentence which I must impose". 20 His Honour accepted Dr Westmore's assessment that a period of incarceration would be extraordinarily difficult for the applicant. His Honour referred to Dr Westmore's concern as to the prisoner's emotional state and the possibility of his being suicidal. 21 Today, further evidence has been by leave presented to the Court, including an up-to-date report by Professor Millard dated 9 February 2000, and certain material from the Department of Corrective Services dealing with the circumstances under which the applicant has thus far served his term of imprisonment. This includes reference to his medical treatment and the places in which he has been incarcerated, including the Long Bay prison hospital. 22 In summary, referring to Professor Millard's report of 9 February 2000, the doctor said that the applicant's current condition is that he has hormone and radiation controlled prostate cancer with clinical and biochemical response to the treatment. There has been remission of his condition as a result of treatment. 23 There is no evidence of cancer spread on CT scanning or bone scanning. There may be slow emergence of his prostate cancer over the next five to ten years. The degree of likelihood of the cancer spreading is high over a ten to fifteen year time frame. The degree of likelihood of the applicant dying before expiration of his minimum term in 2002 is small, probably less than five per cent. Ongoing hormone therapy may be needed. Metastatic disease may require further courses of radiotherapy. 24 Any treatment that is required for him will be available while he is in custody. And finally, it is only if the applicant needs radiation therapy that he will need to be close to the Price of Wales Hospital. 25 This latter conclusion is of much significance because the applicant is present confined at the Kirkconnel Correctional Centre where he is in light protection. Presumably, that is the most satisfactory centre in which he can be housed, and light protection is also probably the most satisfactory classification which he can have. 26 Thus it will only be if he needs radiation therapy that it will be necessary for him to be moved from Kirkconnel to Long Bay where he will have access to the Prince of Wales Hospital. The downside to him being confined at Long Bay is that he will there be in strict protective custody, the stressful demands of such custody being well known. 27 Mr Ierace for the applicant has carefully taken the Court through the chronology of events of the applicant's imprisonment from 24 April 1998 to 5 December 1999 which was a date shortly after the applicant's transfer to Kirkconnel. It is unnecessary, I feel for present purposes to relate here the detail of the difficulties and unpleasant aspects of the applicant's incarceration to date. It would seem however that the Corrective Services authorities have to, to the extent that they are able to do so, been assiduous to ensure that the applicant has received the medical treatment and hospitalisation which he has thus far required. 28 The cyst on the kidney has been removed. It would appear at the moment that, although there is evidence of ischaemic heart disease, that the applicant does not presently count that as a major health problem. 29 Professor Millard's latest report is rather heartening, particularly in the light of his earlier report to which I have already made reference. There is now a significant line of authority for the proposition that a medical condition which impacts adversely on a prisoner's ability to serve his or her sentence, and which existed, but was unknown at the time the sentence was handed down is a relevant consideration when assessing the severity of the sentence. 30 The authorities are referred to in the relevantly recent judgment of this Court in Regina v L. Unreported NSWCCA 17 June 1996, Gleeson CJ, Badgery-Parker and Hidden JJ. The authorities establish that, generally speaking, ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his or her state of health or where there is serious risk of imprisonment having a gravely adverse effect on the offender's health. 31 In Regina v Wayne Peter Jones (1993) 70 A Crim R 449. which was referred to by this Court in L, the principle of law to be applied by this Court, when a question such as that which is presently before the Court arises, was stated (1993) 70 A Crim R at 456. as follows: "The first question is whether independently of the applicant's medical condition, which as I have indicated was not known to the judge or the parties, the sentences imposed were within the sentencing discretion available to the judge. In my view this question must be answered in the affirmative. I consider the sentences imposed by the judge were perfectly appropriate in the circumstances. The second question is whether the additional evidence should lead to the imposition of a sentence different from that imposed by the judge. See Elliasen (1991) 53 Aust Crim R 391 at 394." 32 Mr Ierace has put to this Court an interesting argument that that principle has now been superseded by the judgment of the High Court in AB v The Queen (1999) 73 ALJR 1385. however I am not, speaking for myself, satisfied that that is so and I would apply the Jones test. It would probably in the end lead to the same result in any event. Both Jones and L made the point that it must be remembered that it is the responsibility of the executive to provide for the care and treatment of its prisoners. 33 If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds the executive is empowered to deal with the situation. Section 53 of the Sentencing Act, 1989 preserves the Royal prerogative of mercy and s25A(1) of that Act enables the Offenders Review Board to grant parole at any time if the prisoner is dying or if there are other exceptional extenuating circumstances. 34 In L the Court said that where illness is seen to be relevant to the determination of sentence its weight must be assessed in the light of all the circumstances of the case. Obviously one of those circumstances will be the seriousness of the offence. 35 Turning then to the two questions posed in Jones with the approval of L, the answer to the first question is in my view clearly that on the material before Judge Howie the sentences imposed by him were perfectly appropriate in the circumstances, and, in that regard, I give full weight to the argument addressed to this Court this morning by Mr Ierace in relation to the pleas of guilty. The offences extended over some 29 years, adversely affected 12 young girls at sensitive stages of their lives, and the deterrent aspect was of much significance to his Honour. 36 Turning then to the second question, I am of the view that the additional evidence which has been put before this Court should lead to a variation of the sentences imposed by the judge. The difficulty, of course, is, in the light of all the material that has now been put before this Court, as to the extent to which the sentences imposed by Judge Howie should be modified. 37 One continually gets back, of course, to the serious objective circumstances and the necessity to balance the subjective circumstances, as we now know them, including not only the medical problems and illnesses of the applicant but also the difficulties that he has experienced in the period of incarceration to date. 38 Giving full weight to all the relevant matters I am of the view that the overall sentences imposed by his Honour should be reduced by one year. With the exception of the sentences on counts ten and five the sentences have expired. As I have already indicated, a fixed term of 18 months was imposed in relation to count ten and that is to expire on 22 April 2001. 39 I would propose that the minimum term be reduced by one year in relation to count five but that the additional term remain at two years and six months. 40 That would have the effect then that the sentences imposed in relation to counts one, two, one, three, four, six, seven, eight, nine, ten, eleven and twelve would be confirmed, but in relation to count five the sentence imposed by Judge Howie would be varied to the extent that a minimum term of eighteen months imprisonment to commence on 22 April 2000 and to expire on 21 October 2001 would be imposed together with an additional term of two years and six months to commence on 22 October 2001 and to expire on 21 April 2004. That would have the effect that the applicant would be eligible for parole on 21 October 2001. 41 To give effect to these proposals I would propose that the application for leave to appeal be granted and that the appeal be upheld to the extent that I have indicated. 42 SULLY J: I entirely agree. The orders of the Court will be as announced by his Honour. 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.