New South Wales Court of Criminal Appeal CITATION: Mihail v R [2010] NSWCCA 104 HEARING DATE(S): 23 April 2010 JUDGMENT DATE: 25 May 2010 JUDGMENT OF: Allsop P at 1; Grove J at 2; Hislop J at 3 DECISION: (1) Grant leave to appeal; (2) Appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentence appeal - escape from custody - consideration of claim for discounts for remorse, assistance and ill health. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED : MJ v R [2010] NSWCCA 52 PARTIES: Alexander MIHAIL v R FILE NUMBER(S): CCA 2009/8879 COUNSEL: S. Beckett (Applicant) S. Dowling (Respondent) SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/8879 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 25 September 2009 IN THE COURT OF CRIMINAL APPEAL 2009/8879 ALLSOP P GROVE J HISLOP J Tuesday 18 May 2010 ALEXANDER MIHAIL v REGINA Judgment 1 ALLSOP P: I agree with Hislop J. 2 GROVE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to a charge that on 26 November 2008 at Malabar NSW, being an inmate at the Long Bay Correctional Facility, he did escape from lawful custody in breach of s 310D(a) of the Crimes Act 1900. The maximum penalty for the offence was ten years imprisonment. No standard non parole period was prescribed. 4 On 25 September 2009 the applicant was sentenced in the District Court in respect of the offence to imprisonment for a non parole period of eighteen months commencing on 14 March 2009 and expiring on 13 September 2010 with a balance of term of six months expiring on 13 March 2011. 5 The facts, shortly stated, were as follows: on 15 September 2008 the applicant was convicted of a number of offences at Burwood Local Court. He was sentenced to two years imprisonment with a non parole period of six months commencing on 15 September 2008 and expiring on 14 March 2009. During the afternoon of 26 November 2008, whilst serving that sentence, he was conducting work duties as a welder in the minimum security area 3 at Long Bay Correctional Facility. At 3.15 pm a muster was called and the applicant was not accounted for. The applicant had escaped by unknown means from lawful custody. He had not been given permission or any other authorisation to leave the facility by any means. Ultimately, on 7 December 2008, he was located and arrested without incident. 6 The applicant claimed that he had escaped after being stood over by other inmates for money. His Honour concluded that the applicant's evidence on oath was extremely unconvincing and he did not accept the reason advanced for the escape. His Honour did, however, accept his medical history and his circumstances of incarceration, the applicant being in restricted custody. 7 His Honour accepted the description of the offence as "an unremarkable escape" and held that the offence fell within the lower range of objective seriousness. 8 The applicant was born in 1958. He had an extremely lengthy criminal history, commencing in the Children's Court in 1969. His record included offences in relation to prohibited drugs and utensils, break enter and steal, receiving, stealing, enter inclosed lands, assaulting police, possession of house breaking implements, illegal use of conveyances and a number of offences relating to the use of motor vehicles, and goods in custody. 9 He also had two previous offences, one of escaping lawful custody in 1987 which related to him escaping lawful custody by not returning from work release, and a further escape from lawful custody in 1992. In respect to the escape in 1987 he received a sentence of one month hard labour. In respect to the offence in 1992 he received a minimum term of 12 months with an additional term of 12 months. 10 His Honour found no special circumstances but allowed the applicant a 15 percent discount for his plea of guilty. 11 The applicant sought leave to appeal against sentence on the two grounds referred to and discussed below. Ground 1: That the sentencing judge erred in not taking into account in assessing the applicant's contrition and remorse, or alternatively pursuant to s23 of the Crimes (Sentencing Procedure) Act 1999, his power to reduce the penalty imposed as a result of the applicant's assistance to law enforcement authorities, in the prevention detection or investigation of the offence concerned, namely escape from custody. Additionally, his Honour erred in failing to impose a lesser penalty as a result of this assistance. 12 His Honour held that the applicant "did not indicate any remorse or contrition in relation to having committed the offence." 13 Although the applicant gave evidence at his sentencing hearing, that evidence did not indicate remorse or contrition on his part nor did his counsel make any submission in that regard. 14 The applicant now submits that his Honour should have inferred remorse and contrition from the answer given to Q 375 in an electronically recorded interview between the applicant and Corrective Services officers. The relevant section of the interview reads: "Q373 … A Look, I know there's a lot of flack over this privatisation of security, everything and I'm caught in the middle of it. Q374 Mm. A And I know that I'm going to get really badly hit--- Q375 Mm. A ---over this matter, I've embarrassed a lot of people, I apologised to everybody, Don Rodgers, another officer, Don Rodgers and, I apologised face-to-face with them the day we done the interview. The other officer's name was---" 15 Remorse is defined in the Macquarie Dictionary as "deep and painful regret for wrongdoing." The comment in answer to Q 375 in its context, and in circumstances where the applicant had no defence to the charge, does not, in my opinion, demonstrate remorse or contrition on the part of the applicant. 16 The applicant participated in a video walkthrough with investigating detectives during which he showed officers where and how he scaled the perimeter fences at the complex. On 16 December 2008 he took part in an audio interview with officers of the Department of Corrective Services, at that time providing details as to how he had escaped. The applicant declined to give the authorities any information concerning the people who harboured and assisted him during his time at liberty. According to what he told the officers, his escape involved him making his way to a set of incinerators at the rear of the prison complex, scaling an internal fence and then climbing a gap in the razor wire of the outer fence. 17 The applicant submitted that the video walkthrough explaining how he had escaped amounted to assistance for the purpose of s 23 of the Crimes (Sentencing Procedure) Act 1999 in respect of which the applicant should have been afforded a discount. It was also submitted it was evidence of remorse. 18 These submissions were never put at the sentencing hearing. Had they been made, an evaluation of the "assistance" could have been carried out by the authorities (s 23(1)(b)) and evidence thereof presented to the sentencing court. The applicant did not name those who had assisted him during his escape. In my opinion, it has not been demonstrated that these matters, even if accepted, would justify a lesser sentence. Ground 2 The final sentence proceedings miscarried as evidence, which should be admitted by this Court as fresh evidence concerning the extent of the applicant's ill-health, was not known, appreciated or available to the sentencing Court at the time of sentence. 19 Medical evidence, being three reports of Professor Lloyd dated respectively 12 March 2007, 22 June 2007 and 19 November 2007 and a report of the general practitioner, Dr Senior, dated 24 June 2009 were tendered at the sentencing hearing. The reports of Professor Lloyd established that the applicant was suffering from hepatitis C, gastro-oesophageal reflux disease and chronic liver disease. The report of Dr Senior stated: "[The applicant] is reported to have prostate cancer, heart condition, gall bladder disease/anxiety and depression. He has a long documented history of hepatitis C and gastro-oesophageal reflux." 20 The applicant gave evidence at the sentencing proceedings that a mass had been found in his liver and a further mass in his bowel and that investigative procedures were being carried out. He also gave evidence of the unsatisfactory nature of the annexe which was the Corrective Services side of the Prince of Wales Hospital. 21 His Honour stated: "…there is no other evidence before the Court that the [applicant] in fact suffers from any of those conditions [referred to in Dr Senior's report], other than his own evidence given during the sentencing proceedings…It is at the least unusual that no effort has been made to place any corroborative before the Court as to any actual condition that he is suffering from, rather than being matters that on his evidence he appear to be still being investigated or having medical investigations carried out in relation to. Any possible medical conditions of course do not provide any explanation for the offence of escape. It may however be relevant to the conditions in which he is held and any prospect of ongoing ill health. However as I have said, there is nothing before the Court to confirm that he is suffering from any debilitating disease which will affect his longevity or comfort within the prison system." 22 The applicant sought to rely upon fresh evidence as to his medical condition. The Crown did not object to the tender of this evidence. 23 That evidence, in short, was that: (a) The applicant has complained of significant abdominal pain since July 2009; (b) In August 2009 an ultrasound revealed the appearance of a suspicious lesion in the liver. This was supported by an abdominal CT. However, serum levels were not elevated, making hepatocellular carcinoma less likely; (c) In February 2010 an MRI scan revealed a 2 cm primary hepatocellular carcinoma in the liver with possible spread to adjacent lymph nodes; (d) Further investigations were completed and showed no evidence of spread of the cancer into the lungs or bones. The applicant is awaiting a PET scan (and possibly laparoscopic surgery) to further resolve whether the tumour has spread outside the liver to the adjacent lymph nodes. It is not known when the further investigations will be performed; (e) Professor Lloyd, who continues to treat the plaintiff, has stated (report 18 March 2010): "If spread outside the liver is confirmed the prognosis is extremely poor – approximately an 80% one year mortality. If the lesion is confined to the liver and remains small in size, then Mr Mihail may be considered for liver transplantation which is the only curative option – this carries a 20% 5 year mortality." The professor does not provide a prognosis if the lesion is confined to the liver, remains small in size and there is no liver transplantation; (f) Professor Lloyd concluded in his report dated 18 March 2010: "At present, Mr Mihail is in reasonable health and functional status, but he has developed chronic pain associated with the liver lesion, which is now controlled only with regular use of narcotic analgesics. Mr Mihail is receiving appropriate investigations for his liver diseases. There are no barriers to him obtaining proper treatment. There are no disadvantages to his treatment and care in custody. The liver transplant unit does consider psycho-social circumstances in their assessment of subjects for transplantation (as liver transplantation is both highly expensive and donor organs are scarce), but imprisonment is not a contra-indication for access to the transplant list." 24 The respondent, without objection, tendered a report of Dr Stephen Hampton dated 20/4/2010, the clinical director of Primary and Women's Health. He reported: "'The Annexe' is the secure unit at the Prince of Wales Hospital. It is actually a wing in the hospital and as such there is access to all facilities in the Prince of Wales Hospital. Should a person be too unwell and require intensive monitoring they would be moved to the appropriate section of the hospital with corrective services providing security consistent with their level of classification. The patients who are served by Justice Health have a high prevalence of Hepatitis C and Hepato Cellular Carcinoma presents occasionally. These patients are attended by suitably qualified specialists which in this case is Prof Lloyd. Investigations and interventions would be carried out at Prince of Wales hospital as required. Should a liver transplant be indicated then the patient is assessed according to the usual protocols. In regard to the two scenarios: 1. That he deteriorate relatively rapidly and not be deemed suitable for a liver transplant . In this case he would receive investigations and treatment as required and if higher care was required [than] that available at his usual location he would be transferred to the Medical Surgical Unit at the Long Bay Hospital. The annexe would be required if he was acutely unwell or required specific interventions. 2. That he requires a liver transplant In this case he would be assessed according to the usual protocols and if deemed suitable this would be performed at the Prince of Wales Hospital (POW). He would be cared for in the annexe until he was stable enough for transfer to the Medical Surgical Unit." 25 In a later letter dated 22 April 2010, Dr Hampton stated: "I believe that incarceration should neither accelerate nor exacerbate Mr Mihail's condition. He has access to nurses on a daily basis, visiting general practitioners and specialist medical officers as well as outpatient and inpatient services at the Prince of Wales Hospital as required. His conditions are likely to progress similar in either environment and incarceration will not bias decisions made in regard to suitability for treatment programs." 26 The applicant in his affidavit sworn 23 March 2010 gave evidence of his pain medication and its impact on him. 27 In MJ v R [2010] NSWCCA 52 this court said at [64]: " In R v Smith (1987) 44 SASR 587 King CJ said, at 589, in a passage in his judgment which has been frequently quoted or referred to in this court: 'How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. 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 state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.'" 28 The expert evidence before this Court does not establish any serious risk of imprisonment having a gravely adverse effect on the applicant's health or that imprisonment will be a greater burden on the applicant by reason of his state of health. Accordingly, I do not consider there is any adequate basis for the Court to reduce the applicant's sentence having regard to his medical condition. Whilst I would grant leave to appeal, I would dismiss the appeal. 29 I propose the following orders: 1. Grant leave to appeal; 2. Appeal dismissed ********** 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.