New South Wales Court of Criminal Appeal CITATION : Regina v BEG [2001] NSWCCA 341 revised - 25/10/2001 FILE NUMBER(S) : CCA 60390/00 HEARING DATE(S) : 2 July 2001 JUDGMENT DATE : 7 September 2001 PARTIES : Regina v BEG JUDGMENT OF : Adams J at 31; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3332 LOWER COURT JUDICIAL Ford ADCJ OFFICER : COUNSEL : (A) Applicant in person (C) L M B Lampratti SOLICITORS : (A) Applicant in person (C) S E O'Connor CATCHWORDS : Sentencing - Health problems in existence at time of sentencing but effect of dealing with them in custody not sufficiently appreciated - need for intensive care and treatment LEGISLATION CITED : Nil R v Munday (1981) 2 NSWLR 177 CASES CITED: R v Vachalec (1981) 1 NSWLR 351 R v Ehrenburg CCA unrep 14/12/90 DECISION : Appeal against term of imprisonment of 5 years on each count dismissed - Vary the non-parole period on each count from 3 years to 2 years 3 months so that it commences on 19 May 2000 and ends on 18 August 2002 IN THE COURT OF CRIMINAL APPEAL 60390/00 ADAMS J SMART AJ Friday 7 September 2001 NOT FOR PUBLICATION REGINA v "BEG" JUDGMENT 1 SMART AJ : BEG seeks an extension of time and leave to appeal against two concurrent sentences of imprisonment of 5 years with a non-parole period of 3 years in respect of each of two counts of aggravated sexual intercourse without consent. The sentences commenced on 19 May 2000. The applicant pleaded guilty to each count at the first opportunity. The circumstances of aggravation are that each of the two children involved was under 16 and under the applicant's authority. 2 The statement of facts prepared by the Crown reads: "On a day between 9 April 1998 and 13 April 1998 AB, age 10, (DOB 27/3/88) went to stay at the house of her friend JG, age 10 (DOB 26/6/87) at … Fairfield. JG lived with her mother, step-father (the accused) and siblings. About 6am one morning, JG awoke AB and they went to a bedroom where the accused was. The accused told both girls to take their clothes off, which they did. The accused was wearing only a gown, which he later removed. Both children lay naked on the bed. The accused licked JG on the vagina. He then licked AB on the vagina, parting the labia with his tongue. JG then got on top of the accused while he rubbed his penis up and down on the outside of her vagina. She then got off the accused. She then got some cream from a cupboard, applied it to the accused's penis and masturbated him until he ejaculated. JG then licked some of the semen,. The accused applied the same cream to the vagina of both children. The accused then rubbed his penis against the vagina of AB. He attempted to push his penis into the vagina of AB. AB struggled and pushed the accused off her. She then left the room." The offences occurred at a time when the applicant's wife had gone to the markets. 3 The applicant was born on 28 May 1944. He had two convictions, one in 1961 and one in 1964. They can safely be disregarded and the applicant given the benefit of a good record. 4 The judge took an approach favourable to the applicant by excluding the previous history he had given to his general medical practitioner of his relationship with JG. 5 The judge attached considerable weight to the applicant's health, particularly his very severe back pain. He noted the opinion of the orthopaedic surgeon that it was important that the applicant finish his treatment. The judge said: "… you will be subject to considerable discomfort and pain in your back for an indefinite period … and … in serving a sentence in custody you will endure a much more severe regime than would ordinarily be available if you were not afflicted by this back condition. It is apparently essential that upon being received into custody, a medical assessment be made by the authorities". The judge envisaged that this assessment would include an assessment of what medication should be administered. 6 The judge also accepted Dr Westmore's opinion that the applicant had a range of medical and psychological problems which would make his term in custody particularly difficult. Further, the applicant would be an at risk prisoner, not only because of his age and physical problems, but because of the nature of his offence. 7 The judge concluded by saying that it was a matter of considerable importance that the prison authorities cause a prompt medical assessment of the applicant to be made. The judge directed that his remarks on sentence be forwarded to the Director of Corrective Services together with all medical certificates (ie, reports). 8 The applicant's written submissions stress that he is suffering severe back pain and that he cannot obtain more than minimal pain medication. The applicant has written: "The doctor at Junee Correctional Centre was quite concerned at the seeming failure of my operation and he arranged for me to be transferred to the medical wing at Long Bay. He also signed a certificate that advised against transporting me by prison truck which was ignored. A long trip from Junee to Malabar was very painful. I have spent most of my time in the last 10 months in my cell in bed. For me to be vertical (sitting, standing) is to be in very much pain. I get pain killers that work for an hour or so after taking them as long as I am laying down". 9 The applicant has further written that the surgeon he saw after arriving at Long Bay told him that he would have to wait until he was released before he could be operated on for corrective or salvage surgery. 10 The applicant has stated that before entering custody he was taking a mixture of drugs and a lot of drugs in total on a daily basis. The prison authorities are understandably cautious about placing drugs in the hands of the applicant. 11 In his report of 4 May 2000 Dr Westmore wrote: "Mr G suffers alcohol abuse and substance abuse and he currently has an adjustment disorder with a depressed mood state. He appears to have a chronic pain syndrome. The reported amnesia related to the alleged offending behaviour is likely to have been caused by the combination of alcohol and prescribed medication used in large quantities. It is also possible that normal mental defence mechanisms such as repression and suppression are playing some role in his memory difficulties, this due to the nature of the alleged offending behaviour. He may also be feigning memory problems". and "Despite the nature of the offending behaviour he does not in my view suffer from the condition paedophilia, he does not represent a risk to the general community in a sexual sense. His misuse of drugs and alcohol probably occurred in part due to his unemployment and the psychological impact that had on him and the subsequent depression he probably experienced due to unemployment and chronic pain. This man would benefit from attending a pain management specialist and a drug and alcohol specialist. In one or other of those settings he is likely to have contact with a psychiatrist and his mood state needs to be monitored periodically. He also needs assistance to understand more fully the nature of his offending behaviour, how it arose and the potential impact it had on the victims". 12 These applications came on for hearing on 2 July 2001. The applicant did not appear personally but asked the Court to deal with the matter on the papers. With his stated pain levels he may not have been able to cope with coming to Court and addressing it. In view of his submissions and the fact that he was reluctantly representing himself the Court requested a report from the Corrections Health Service. 13 In his reply of 19 July 2001, the Director, Primary Health advised that the applicant was seen at the Pain Clinic at Prince of Wales Hospital on 13 June 2001. This referral was made to obtain specialist opinion as to how to best deal with G's pain. The Director continued: " At this assessment it was noted that G has persistent right lower back pain which has not been relieved by previous discectomy and laminectomy in 1998 and fusion operations in 1999 … the operations had relieved his sciatica but … lumbar spinal pain has been similar to that experienced preoperatively and has been persistent. The pain centres around the lower lumbar spinal area with somatic radiation to the upper buttocks bilaterally. On the day of assessment … his pain severity was noted as being rated as 10 out of 10 … at times the pain could reduce to between 6 and 7 out of 10". 14 The Director, in answer to the question whether any other steps could be taken to alleviate G's pain wrote: "This assessment recommended trialling a sustained release preparation of Oxycodone such as Oxycontin. It was suggested that the Oxycontin be started at a dose of 20mg twice a day, and the dose increased if necessary. It was also suggested that Endone 10mg per day could be used for breakthrough pain. Supplementing these medications with Celebrex from time to time was noted as being possibly worthwhile. In addition to medication, physiotherapy for back and abdominal muscle strengthening was suggested. …authority has been sought and approved for prescription of Oxycodone sustained release formulation and Endone. Mr G's case has also been discussed with the physiotherapist at the Long Bay site and a referral to this service will be made". 15 The Director advised that his report had been prepared from an examination of the file and that he had not personally examined G. The Court appreciated the Director's report. It has been assumed that the authority referred to is that of the Commonwealth Health Authorities. 16 In his submissions of 30 July 2001 in reply G has stated that when he was in 9 Wing the doctor for that wing only prescribed and would only prescribe panadeine forte. This does not give him any relief. G has written "in the months I spent in 9 Wing, the MO would only give me one certificate to be sick in cell and told me he would not give me any more. As a result I would spend 6 hours a day laying on a blanket on the concrete of the exercise yard". 17 G has also written that 14 months after being gaoled he still spends most of his time in bed and that standing sitting or walking is still a very painful affair. 18 G has written in his reply of 30 July 2001 that he has been taking Endone for a long time and that it has very little effect on his pain unless he remains lying down in bed. Celebrex works well on arthritic fingers but does not help him otherwise. G continued: "The pain specialist told me to start by trialing the Oxycodone, Oxycontin. At the time of writing … I have still not begun the new medication trial. Six weeks have passed and still no relief in sight … The pain specialist also told me if the medication didn't work he would have a hard time installing a block because of the instrumentation on my spine. Regarding physiotherapy, my surgeon prescribed swimming and exercising in a warm pool. This I have been unable to do since I entered the system. My only exercise is to walk up and down in the wing for 10-15 minutes a day. I regulate my weight by missing meals. My bed is standard for prisons, weldmesh and sponge mattress. I cannot sleep without medication as my back pain will not let me. Mornings are very painful. Any time I become vertical is painful. The most I carry is the electric jug". 19 When sentencing the applicant the judge appreciated that the applicant's time in gaol would be hard because of his medical condition. However, the judge could not and would not have appreciated how hard it would be. The judge would have anticipated that the applicant would have been assessed and treated promptly and effectively. The pain levels are high. In the space of a couple of years G had had a number of operations on his back. G's back problems and the resultant pain had presented major problems to his surgeon necessitating re-grafting and re-instrumentation. Having regard to G's history I can understand the reluctance of other surgeons to intervene. 20 It is apparent from the material that he needs prompt and sustained medical attention and treatment. By treatment I include medication and physiotherapy. Considerable trialling of drugs may be required. This needs close and timely monitoring. It is not clear why there was a delay of over 12 months in referring G to a pain specialist and why, six weeks after seeing a pain specialist, the drug trial had not commenced. These are essentially matters for the prison authorities. 21 The Crown submitted correctly that this Court is essentially concerned with the question whether the sentencing judge erred in imposing the sentences earlier mentioned and that it is not a matter of the Court reviewing the sentence imposed in the light of subsequent events. The Crown submitted that this was a matter for the executive government and not for the Court: R v Munday (1981) 2 NSWLR 177 at 178. It further submitted that, as an appeal court, this Court does not have the function nor is it equipped to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter essentially involves administrative considerations and remedial action involves essentially an exercise of administrative power that the Court does not possess: R v Vachalec (1981) 1 NSWLR 351 at 353. 22 As was pointed out in Vachalec at 353-354 this Court has no power or authority to give administrative directions as to the treatment of prisoners nor to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. Street CJ, speaking for this Court, also said at 354: "There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court in finding error in the sentencing decision of the first instance court. Such cases will be rare … The responsibility to provide adequate and proper medical treatment for prisoners rests squarely on the shoulders of the prison authorities". 23 Earlier in Vachalec at 353 Street CJ said: "It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and this is a proper consideration to be taken into consideration by a sentencing judge." I am bound by the Court's decision in Vachalec. 24 I would not seek to give any directions to the prison authorities nor to impinge on their field of operations. A simple question arises. Did the judge err by failing to give sufficient weight to the plaintiff's medical condition when he was assessing G's subjective circumstances. The judge took into account that the applicant would be subject to considerable discomfort and pain in his back for an indefinite period and that he would endure a much more severe regime than if he did not have the back pain. That statement is correct as far as it goes. The materials before the judge went further. They indicated as at November 1999 the applicant was unfit to sit through a three or four day trial but should be fit to attend court for two or three hours at a time. Dr Giblin expected that by March 2000 the applicant would be in a better position to attend Court for a longer period of time. It is apparent that the applicant's back pain was intense and disabling. 25 Both Dr Giblin and Dr Westmore noted G's history of chronic back problems. Dr Westmore wrote that the applicant would benefit from seeing a pain specialist. Dr Westmore thought that the applicant's term in custody would be particularly difficult. 26 The effect of the post sentence events is to underline what was not fully appreciated at the time of sentencing, namely that it would be difficult, if not practically impossible, to manage the applicant's condition adequately in gaol. 27 In R v Ehrenburg, CCA unrep, 14 December 1990 this Court held that where subsequent events can be seen as a manifestation of something that was present but either unknown or not fully appreciated at the time of sentencing those events can be taken into account and lead to this Court re-sentencing if in all the circumstances the sentence is regarded as excessive. That was a case where the sentencing judge was aware that the accused was pregnant and that there might be complications. However, the significance of the material was not and could not have been known at that time. The complications which occurred were very severe. While the facts of the present case differ markedly from those in Ehrenburg the principle which it affirms is applicable. 28 The offences themselves are serious and in a case where the prisoner was not afflicted by major health problems involving intense pain the sentences would be regarded as very lenient. They reflect the applicant's health problems in part. 29 Not without considerable doubt I have concluded that in the exceptional circumstances of this case, namely, the applicant's health problems and his pain levels, the non-parole period should be reduced to two years three months. Despite the applicant's pain and suffering which he will have to continue to endure no lesser sentence is possible bearing in mind his criminality. 30 I propose the following orders: 1. Extend the time in which to seek leave to appeal. 2. Leave to appeal granted 3. Appeal against term of imprisonment of 5 years on each count dismissed. 4. Vary the non-parole period on each count from 3 years to 2 years 3 months so that it commences on 19 May 2000 and ends on 18 August 2002. 31 ADAMS J: I agree. The orders are as proposed by Smart AJ. ******** 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.