Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lissock v R [2019] NSWCCA 282 Hearing dates: 12 June 2019 Decision date: 29 November 2019 Before: Payne JA at [1] Davies J at [2] Button J at [16] Decision: (1) Leave to appeal against sentence granted. (2) Appeal against sentence upheld. (3) The aggregate sentence imposed by Bright DCJ on 11 December 2017 is quashed. (4) In substitution, the applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, with a non-parole period of 9 years 4 months, each to commence on 8 September 2017. (5) The first date upon which the applicant appears to be eligible for release to parole pursuant to that sentence is 7 January 2027. Catchwords: CRIME — Appeals — Appeal against sentence — Child sex offences — Applicant diagnosed with terminal illness after sentence imposed — Whether sentence manifestly excessive — Whether applicant to be re-sentenced based upon fresh evidence — Sentence not manifestly excessive — Fresh evidence admitted — Discussion of principles relevant to subsequent development of illness taken into account at time of sentence — Held by majority that applicant be re-sentenced — Lesser aggregate sentence imposed Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M and 66A Crimes (Administration of Sentences) Act 1999 (NSW), ss 160, 160AD, and 270 Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA Cases Cited: Anastasiou v R [2010] NSWCCA 100 Dinsdale v the Queen [2000] HCA 54; 202 CLR 321 Facer (a pseudonym) v R [2019] NSWCCA 180 Gibbons (a pseudonym) v R [2019] NSWCCA 150 GS v R [2016] NSWCCA 266 Iglesias v R [2006] NSWCCA 261 Merkel v R [2019] NSWCCA 212 RH v R [2019] NSWCCA 64 Russell v R [2018] NSWCCA 115 R v Jacobs [2001] NSWCCA 212 R v Jones (1993) 70 A Crim R 449 R v Vachalec [1981] 1 NSWLR 351 Category: Principal judgment Parties: Stanley Lissock (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: N Carroll (Applicant) K Jeffreys (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2003/11705 Publication restriction: Pseudonym adopted to protect the identity of a victim of child sexual assault Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 December 2017 Before: Bright DCJ File Number(s): 2003/11705 Judgment 1. PAYNE JA: I agree with Button J. 2. DAVIES J: I agree with Button J in relation to his Honour's determination of ground 1 of the appeal and with his reasons for that determination. 3. In relation to ground 2 I agree with his Honour's conclusion that the further medical evidence should be admitted and that the Court should consider the sentence imposed in the light of that medical evidence. 4. I respectfully disagree with his Honour's conclusion that the sentence should be reduced by reason of the applicant's medical condition. Since mine is a minority position, my reasons will be brief. 5. In R v Jones (1993) 70 A Crim R 449 Carruthers J (Sheller JA and Sully J agreeing) indicated a two step process in such cases. The first question to be determined is whether, independently of the applicant's medical condition, the sentence imposed was within the sentencing discretion available to the sentencing judge. The second question is whether the additional evidence should lead to the imposition of a sentence different from that imposed by the sentencing judge. 6. I agree with Button J that the first question in the present case should be answered in the affirmative, namely, that the sentence imposed was appropriate based on the information the sentencing judge had. 7. In relation to a determination of the second question, the principles were summarised by Rothman J (McLellan CJ at CL and James J agreeing) in Anastasiou v R [2010] NSWCCA 100 at [22]-[23]: [22] The state of health of an offender and the effect of imprisonment of that state of health is a relevant consideration in the determination of an appropriate sentence. Because it is relevant as a consideration, it is always a factor that must be taken into account in order to exercise properly the discretion reposed in a sentencing court. The manner that it is taken into account was expressed by the South Australian Supreme Court in a passage on which this Court and other courts have often relied: "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." (R v Smith (1987) 44 SASR 587, per King CJ, at 589.) [23] The approach that the Court ought properly take, consistent with flexibility in sentencing, was summarised in R v Sopher (1993) 70 A Crim R 570 in the following passage: "Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the Department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age this would be a relevant matter to take into account." (R v Sopher (1993) 70 A Crim R 570 at 573-574, per Smart, Allen and Levine JJ.) 1. The question to be asked is whether the medical condition will render the applicant's period of incarceration more onerous than was appreciated when he was sentenced: Anastasiou at [32]; Iglesias v R [2006] NSWCCA 261 at [10]. However, a genuinely held fear by the applicant that he may die in custody is not such as to justify a reduction in sentence: Iglesias at [15]. 2. The principal evidence relied upon by the applicant is a report from Professor Andrew Lloyd, a consultant infectious diseases physician, of 30 June 2019. Professor Lloyd sets out the details of the applicant's condition. He then goes on to say this: The potential treatment options for HCC in this context have been discussed with Mr [Lissock] - particularly Trans-arterial chemo-embolisation (TACE), which is primarily a disease control strategy for HCC (i.e non-curative), as well as orally-administered chemotherapy with an agent called sorafenib (which is also palliative). He has declined both options. As he has only mild and intermittent pain in the region of the liver, he is currently receiving no therapy, but is under regular review. The prognosis for untreated survival from the HCC, given his generally good health and preserved liver function is approximately 18 months. 1. Counsel for the applicant submitted that the applicant's medical condition will inevitably result in a continuous decline in his health during the 18 month period that Professor Lloyd expects him to live. Counsel submitted further that a life expectancy of 18 months would have had a real significance on the sentencing discretion, had the sentencing judge known that fact at the time. Counsel submitted that, in the light of the medical evidence, the case was not an appropriate one for deterrence, both general and specific, nor for denunciation, relying on Russell v R [2018] NSWCCA 115 at [37]. 2. There is nothing in Professor Lloyd's report to suggest that incarceration will be significantly more onerous for the applicant. Professor Lloyd says that his cirrhosis is clinically asymptomatic and that the liver lesions were evident but smaller in size than had previously been identified, indicating small growing hepatocellular carcinoma. Professor Lloyd noted that the applicant has only mild and intermittent pain in the region of the liver. There is no evidence from the applicant concerning his incarceration, and how his medical condition was impacting upon it. 3. Whilst I agree that specific deterrence ceases to have much, if any, relevance, I do not agree that the applicant is not an appropriate vehicle for general deterrence and denunciation. The case differs from those where the illness (usually mental illness) is causally related to the offending. I consider that Russell is distinguishable by reason of the need of the applicant in that case for immediate release for his care in his dying days. 4. On the present medical evidence, no reduction in the applicant's sentence that could properly be made is likely to result in his being released to parole in the ordinary course prior to the expiration of the assessed life expectancy. 5. The authorities are clear that it is the responsibility of the Executive to provide for the care and treatment of prisoners, and the prerogative of mercy, preserved in s 102 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the powers to release to parole in exceptional circumstances contained in s 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) are sufficient to deal with any decline in the health of a prisoner: R v Vachalec [1981] 1 NSWLR 351 at 353-4; R v Jacobs [2001] NSWCCA 212 at [36]-[38]. 6. The present offending was serious, as was accepted by the applicant's counsel, and for the reasons summarised by Button J at [87]. No lesser sentence is warranted than that which was imposed on the applicant. 7. BUTTON J: Introduction 1. This application for leave to appeal against sentence relates to the aggregate sentence imposed upon Mr Stanley Lissock (a pseudonym for the applicant) in the District Court of New South Wales at Newcastle by Bright DCJ on 11 December 2017. 2. That sentence was imposed after the delivery of verdicts of guilty at the conclusion of a trial by jury of allegations that the applicant had committed many offences of child sexual assault against his stepdaughter, to whom I shall simply refer as the complainant. 3. The first count averred sexual intercourse with a child aged under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). At the time of the commission of the offence, the applicable maximum penalty was imprisonment for 20 years, with no standard non-parole period. 4. Six further counts alleged aggravated indecent assault, contrary to s 61M(1) of the Crimes Act. At the time of their commission, the maximum penalty was imprisonment for 7 years, and there was no standard non-parole period. 5. Finally, seven counts averred aggravated sexual assault upon a person under the age of 16 years, contrary to s 61J(1) of the Crimes Act. At the time of the commission of those offences, the maximum penalty was imprisonment for 20 years. Again, there was no standard non-parole period in force at the time of the commission. 6. In the event, the learned sentencing judge imposed an aggregate head sentence of imprisonment for 18 years, along with an aggregate non-parole period of 12 years, to commence on 18 September 2017 (a slip appears in the remarks on sentence with regard to the commencement date but the intended outcome is clear). 7. The following ground was relied upon at the commencement of the hearing before us: Ground 1: The aggregate sentence imposed was manifestly excessive. On 19 June 2019 the applicant filed the following further ground: Ground 2: The Court re-sentence the offender based upon the fresh evidence which was not available at the time of sentence. The latter ground led to the filing of a number of medical reports about the diagnosis and prognosis of the applicant, and further written submissions from both parties about their consequences. Because I understood the Crown ultimately to concede the correctness of ground 2, I shall be brief with regard to both grounds. Objective features 1. The following conspectus of objective matters is derived from the remarks on sentence. 2. The complainant was born in June 1989. The applicant met the mother of the complainant (I shall refer to her as Miriam) when the latter was in kindergarten and aged 4 or 5 years. The offender and Miriam commenced to live together. They moved a number of times before settling at an address in the Newcastle area in 1997, at which time the complainant was aged 7 or 8. 3. Count 1 occurred between the beginning of May and the end of June in 1997, at which time the complainant was 7 or 8 years of age. The complainant returned home from a birthday party across the road, and went to bed in the bed of her mother. The applicant returned from the party, got into bed with his stepdaughter, and began to touch her. He pushed one of his fingers into her vagina. That caused the sleeping complainant pain, and caused her to wake up. Afterwards, the applicant took the complainant into the kitchen and said to her, "I'll never do that again". 4. Counts 2 and 3 occurred about five years later. The complainant was 13 years of age. She was at home with the applicant. Whilst she was sitting on the lounge, the applicant approached her and touched her breasts with his hands over her clothing, thereby committing the indecent assault in count 2. 5. He then tried to put his hands down her pants, but the complainant held her legs together. He began to say that if she did not pull her pants down, he would do so. He then touched the complainant on the vagina, rubbing his fingers up and down underneath her clothing for a period of about 5 to 10 minutes. The complainant told him to stop, but he did not do so. That behaviour constituted the indecent assault in count 3. 6. Counts 4 and 5 occurred between 21 July 2002 and the end of that month. The complainant was 13 years of age, and in the family home with the applicant. He told her to go into his room; after she complied, he ordered her to get on her knees. After she complied again, he engaged in penile/anal intercourse with her. The penetration caused her pain. She said to the applicant "No. I don't want to. Stop, I don't like it." The penetration of her anus lasted about two minutes. Before the sexual intercourse occurred, the applicant had been rubbing his penis up and down her buttocks for about five minutes. After the offence had concluded, the complainant went to the toilet and observed that she was bleeding from the anus. The penile/anal intercourse constituted count 4. 7. During the same incident, the applicant penetrated the vagina of the complainant with his finger. That penetration did not occur simultaneously with the penile/anal penetration. It constituted count 5 on the indictment. 8. Counts 6, 7, 8, and 9 all occurred on the one occasion. Between 1 September 2002 and 17 October 2002, the complainant was at home with the applicant. She was 13 years of age. The applicant entered her bedroom, woke up, and asked her to accompany him to his bedroom. She refused. A short time later, he picked her up and bodily carried her into his room and removed her clothing. 9. He touched her on the vagina, and digitally penetrated her. That lasted for about 10 or 15 minutes. That conduct underpinned count 6. 10. The applicant then performed cunnilingus on his stepdaughter. She was saying "don't" and "stop". That form of sexual intercourse continued for about five minutes, and underpinned count 7. 11. During the incident generally, the applicant was bizarrely reciting verses from the Bible. 12. At one stage, the applicant rubbed his penis against the vagina of the complainant. His penis "slipped in" to her vagina, and the penetration occurred for a couple of seconds. The complainant described the penetration as "gross and it really hurt". Later, she went to the toilet and saw that she was bleeding from her vagina. This conduct on the part of the applicant underpinned count 8. 13. During the same incident, the applicant ordered the complainant to hold her vagina open. She complied. He touched her vagina whilst masturbating to ejaculation. That behaviour constituted aggravated indecent assault, and underpinned count 9. In the trial, the complainant gave evidence that some of the ejaculate "splurted on me", and the rest was captured by a sock. 14. Counts 10, 11 and 12 occurred on the one occasion during October 2002. As before, the complainant was 13 years of age, and at home with her stepfather. Miriam had left to go to the shops early in the morning. 15. The applicant woke the complainant up. He asked her to come into his room "so I can play with you". When she refused, he bodily carried her into his bedroom. The complainant said "No. I don't want to." When the two of them were in his bedroom, the applicant pulled her pants down and performed cunnilingus on his stepdaughter. That form of sexual intercourse underpinned count 10. 16. He also digitally penetrated her vagina, which constituted count 11. The complainant said to the applicant "I don't want to". 17. The applicant told the complainant to hold her legs together whilst he rubbed his penis up and down between them. He ejaculated onto her legs. That conduct constituted count 12, an aggravated indecent assault. 18. Finally, on 5 November 2002, when the complainant was 13 years of age, she was at home with the applicant. He planned for her to attend a Melbourne Cup function that day. Miriam was at home ironing in the lounge room. The complainant was in the bedroom of the applicant, and was half asleep. The applicant entered the bedroom and touched her breasts with his hands. For about two minutes, he squeezed her breasts over her shirt, an aggravated indecent assault that constituted count 13. 19. He then put his hand down the front of the pants of the complainant, underneath her underwear, and touched her vagina. The complainant described this offence as lasting for less than a second. That underpinned count 14, an aggravated indecent assault. The complainant punched his hand and left the bedroom and went out to her mother. 20. The sentencing judge made varying assessments of the objective gravity of the offending. They are not the subject of appeal, and I shall recount them concisely. 21. Count 1, sexual intercourse with a child under 10, "just below the mid-range of objective seriousness". 22. Counts 2, 3, 9, 12, 13 and 14 (the various aggravated indecent assaults) in order: "at the lower end of the range"; "mid range"; "at the mid range"; "at mid range"; "at the lower end of the range"; and "below mid range". 23. Counts 4, 5, 6, 7, 8, 10 and 11 (the various offences of sexual intercourse without consent with a person under the age of 16 years), again in order: count 4 "above mid range"; count 5 "just below the mid range"; count 6 "just below mid range"; count 7 "just below mid range"; count 8 "at mid range"; count 10 "just below mid range"; and count 11 "just below mid range". 24. Thereafter, her Honour remarked that "the facts that I have found consistent with the jury's verdict disclose very serious objective criminality". Her Honour also made observations about the harm generally caused by sexual assault upon children, and the community values that denounce such conduct. It was further found that the position of the applicant as the complainant's step-parent who lived with the complainant demonstrated a "reprehensible and grave breach of trust". Victim impact statement 1. The sentencing judge had regard to a victim impact statement written by the complainant, who was, by the time of the proceedings on sentence, an adult. The statement detailed the distress she endured as a child, her attempts at self-harm, the experience of being shunned by her family as a result of disclosing the conduct of the applicant, and the continued debilitating effects of the offences upon her adult life. The sentencing judge accepted that those effects included an inability to form stable relationships and the engagement in self-destructive behaviour. Subjective features 1. The following subjective matters are accepted in the remarks on sentence. 2. At the time of sentencing, the applicant was 58 years old. 3. He had a "very limited" criminal history of offensive behaviour, making false instrument and stealing a valuable security. 4. The applicant has six siblings and is Aboriginal. He grew up in Walgett and Coonabarabran on an Aboriginal mission. He had a good relationship with his mother, who was a teaching assistant and nurse, and his father, who was a shearer. His parents separated when he was five years old, and were both deceased at the time of sentencing. He relocated to Sydney at the age of 16, and has lived independently since then. 5. As for his schooling and employment, the applicant completed high school, was in the navy in his twenties, and completed a Bachelor of Teaching when he was 33 years old. In his thirties he was mostly unemployed, and in his forties he worked as a community support worker. After that, the applicant had been unemployed for the 9 years prior to the date of sentencing. 6. The applicant experienced two incidents of sexual abuse between the ages of 8 and 10. He denied to a psychologist that he had an interest in pornography, and denied ever watching child abuse material. 7. The applicant had a long-term partner between the time when he was 33 years of age until her death in 2012. 8. With regard to the health of the applicant, the sentencing judge observed the following: "In relation to his medical history, he reported to the psychologist that he has cirrhosis of the liver from years of alcohol consumption, and had a significant back injury in 2008. His current physical health was considered adequate." 1. In relation to alcohol and prohibited drug use, the applicant reported drinking alcohol excessively between 16 and 42 years of age. Between 34 and 56 years of age, the applicant was using cannabis three times a week, and between 52 and 54 years of age, he was using methylamphetamine daily. The applicant had not undertaken any formal rehabilitation program as at the date of sentence. 2. The applicant maintained his innocence in relation to the offending. 3. The applicant did not have any significant psychological history and described himself at the time of sentence as "a little depressed". He was regarded as functioning adequately in prison. 4. The psychologist assessed the applicant's risk of re-offending as moderate, in the absence of treatment. Other matters 1. The sentencing judge took into account "to a moderate degree" the delay in the proceedings whereby the offender was initially charged in February 2002, but in October 2004 those charges were discontinued. An ex officio indictment was presented years later in December 2016. 2. In addition, the sentencing judge found that an assessment of the applicant's prospects of rehabilitation was not possible, because the applicant maintained his innocence. 3. Her Honour also made a finding of special circumstances, bearing in mind that this was the applicant's first time in custody, the partial accumulation of sentences, the fact that a custodial sentence would be harsher on the applicant due to his age, and that he would need supervision upon being released into the community. As can be seen, the ratio between the aggregate non-parole period and the aggregate head sentence is two thirds. Sentence imposed 1. As I have said, the sentencing judge imposed an aggregate sentence with a head sentence of imprisonment for 18 years with a non-parole period of 12 years, backdated to the date upon which the applicant came into custody. 2. The indicative sentences were as follows: "Count 1, a total term of six years; count 2, a total term of one year; count 3, a total term of two years; count 4, a total term of seven years; count 5, a total term of five years; count 6, a total term of five years; count 7, a total term of five years; count 8, a total term of six years; count 9, a total term of three years; count 10, a total term of five years; count 11, a total term of five years; count 12, a total term of three years; count 13, a total term of twelve months; count 14, a total term of three years." 1. For the convenience of the reader, a diagram that sets out the aggregate sentence and the many indicative sentences is annexed to this judgment. Grounds of appeal 1. As I have said, in support of the application for leave to appeal against sentence, ground 1 was originally notified and pressed at the hearing. During the hearing, the Court granted the applicant leave to file further medical evidence, and following that the Court granted the applicant leave to amend the grounds of appeal. The amended grounds requiring determination are therefore as follows: Ground 1: The aggregate sentence imposed was manifestly excessive. Ground 2: The Court re-sentence the offender based upon the fresh evidence which was not available at the time of sentence. ​​Ground 1: The aggregate sentence imposed was manifestly excessive. Submissions of the applicant regarding Ground 1 1. Counsel for the applicant made the following principal points in written submissions. 2. First, counsel conceded the serious nature of the offences, and the fact that they undoubtedly called for a lengthy term of imprisonment. Nonetheless, it was submitted that the aggregate sentence was too severe, in all the circumstances of the case. 3. Secondly, counsel for the applicant made clear that none of the indicative sentences, nor the assessment of objective criminality for each count, was the subject of criticism. 4. Thirdly, having regard to the JIRS statistics for sentences imposed for aggravated sexual offences (s 61J(1)) that pre-date the introduction of the standard non-parole period (SNPP) regime, it was said that the sentence of 18 years imposed on the applicant sits within the top 8% of the sentencing range. The aggregate non-parole period of 12 years sits within the top 10%. 5. Counsel submitted that the statistical ranking of the aggregate sentence imposed is inconsistent with the assessment of objective criminality, whereby the majority of offending was assessed as "mid range" or below. 6. Fourthly, counsel provided a table of cases in which the offenders received head sentences of over 15 years for s 61J(1) offences that were committed before the SNPP regime commenced. It was submitted that the features of those cases were more objectively serious than the offending of the applicant, and that those cases often involved multiple victims, offending over a much longer period, drugging of victims, and a higher frequency of sexual abuse. 7. Fifthly, counsel detailed a table of sentences that were imposed after the introduction of the SNPP regime for 61M(1), 61J and 66A offences, and that featured head sentences starting from 15 years. Counsel provided a further table of select sentences for 61J offences. It was said that these offences were similar to those committed by the applicant, as they involved a single victim and the offence occurred over shorter periods of time than the offences in the immediately preceding table. 8. Counsel made two concluding points: first, that the aggregate sentence imposed on the applicant was manifestly excessive, having regard to the sentences previously imposed for conduct involving one complainant, over a relatively short period of time, and for pre-SNPP offences. 9. Secondly, if the Court were to re-sentence the applicant, it should have regard to the various subjective circumstances detailed in the remarks on sentence, and the finding of special circumstances made by the sentencing judge. 10. In oral submissions, counsel made clear that no patent error was being asserted, but reiterated that the statistics demonstrate that the aggregate sentence imposed upon the applicant sits at the upper range of sentences of 17 to 22 years. It was emphasised that that upper range of sentences reflects very serious offending, such as multiple victims and drugging, each of which characteristic is distinguishable from the case of the applicant. 11. Counsel for the applicant then responded to the Crown's written submissions. 12. First, counsel resisted the Crown submission that the Court should take into account the subsequently applicable standard non-parole period in determining whether the sentence imposed is manifestly excessive. Counsel submitted that the offences occurred in 1997 and 2002, and therefore predate the commencement of the SNPP regime. 13. Secondly, in responding to the Crown's critique of the cases relied upon by counsel for the applicant, counsel submitted that the offending in this case is more similar to cases involving a single victim and a more limited period of time. Counsel accepted that the offending here did occur over a period of five and a half years, but made the point that the single incident in 1997 was isolated in time, and the next set of offences occurred years later, in 2002. Counsel nonetheless noted that the offending was "very serious", and conceded that there was a "double lack of consent", in the sense that the offending included sexual intercourse with the victim when she was under the age of consent, and without her consent to the knowledge of the applicant. 14. Thirdly, in discussing any possible effect of the recently commenced s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA), counsel for the applicant made it clear that it was not her submission that this was a case in which the sentencing judge had been called upon to replicate a previously existing pattern of past sentencing. 15. Fourthly, she also made it clear that none of the indicative terms was impugned in itself; rather, it was simply the degree of implicit cumulation leading to the aggregate head sentence and non-parole period that was the subject of criticism. Determination regarding Ground 1 1. Turning to my determination of this ground – which is, in any event, not dispositive, because of the Crown concession with regard to the other ground – I do not propose to engage in a conspectus of sentences imposed for penetrative child sexual assault yet again, bearing in mind that I recently did so in the decision of Gibbons (a pseudonym) v R [2019] NSWCCA 150, Leeming JA recently did so in the decision of Facer (a pseudonym) v R [2019] NSWCCA 180, Schmidt J recently did so in RH v R [2019] NSWCCA 64, and Wright J recently did so in Merkel v R [2019] NSWCCA 212. 2. Nor, in light of the explicit concession of counsel for the applicant that this is not a case that called for replication of a past pattern of sentencing, need I explore any possible difference between sentencing patterns at the time of the offending and the time of the imposition of sentence. 3. For the same reason, nor do I need to explore the parameters of the operation s 25AA of the CSPA. 4. Finally, nor shall I engage in a statistical analysis; quite apart from the well-known limitations on that exercise, I think there comes a point in the context of multiple offending by way of a variety of offences at which the analysis simply becomes too refined to be useful. 5. I think it is sufficient to say that this case featured penetrative sexual intercourse on multiple occasions; "double lack of consent"; physical injury to intimate parts of the body of a young girl; undoubted long-standing psychological trauma; a gross abuse of trust; and a complete lack of remorse, or even grudging acceptance of responsibility. Whilst it is true that all but one offence was contained within a reasonably limited period of time, and that the applicant possessed a reasonably strong subjective case, I cannot accept that this aggregate head sentence or non-parole period sits outside the discretion reposed in the sentencing judge. In particular, one does not instinctively recoil from the sentence imposed as erroneous in the way discussed by Gleeson CJ and Hayne J in Dinsdale v the Queen [2000] HCA 54; 202 CLR 321. 6. In short, I think that the sentence should be characterised as stern, but not manifestly excessive. 7. I would not uphold ground 1. Ground 2: The Court re-sentence the offender based upon the fresh evidence which was not available at the time of sentence. Submissions regarding Ground 2 1. At the oral hearing, counsel for the applicant informed the Court that on the morning of the hearing, the applicant had told her that he had been diagnosed with a terminal illness. Clearly enough, that was an unsatisfactory evidentiary basis upon which the question of his medical condition could be taken into account, and leave was granted to file further evidence about the topic. 2. On 29 June 2019 the applicant filed amended grounds of appeal, an affidavit of his solicitor with annexures, and written submissions. 3. In short, the uncontested evidence shows that the applicant has developed liver cancer in the background of cirrhosis; that it has spread to other parts of his body; that his condition is terminal; that only "non-curative" or palliative care is available; that the applicant has decided to reject even that; and that his life expectancy is approximately 18 months. 4. In written submissions for the applicant about that evidence, it was said that that subsequently developed medical condition is of real significance, and would have led to a lesser sentence if the sentencing judge had known of it. It was said that this Court should intervene and resentence, including on the bases that specific deterrence is no longer relevant, the risk of further offending is insignificant, and the applicant may no longer be regarded as an appropriate vehicle for general deterrence or denunciation. 5. Once the medical position had been made clear, the Crown accepted that the condition was present (at least to some degree) at the time of sentence, and that its significance was not fully appreciated until further investigations were conducted months later in 2019. 6. I did not understand the Crown to resist the proposition that the Court could and should, in its discretion, admit the subsequent medical evidence. Nor did I understand the Crown to resist the proposition that resentence should at the least be considered. 7. On the other hand, the Crown submitted that, on the evidence, there is little to suggest that the custodial conditions of the applicant are more onerous than they would be if he were quite well, at least at this stage. It was also submitted that, despite the existence of a very grave medical condition, it remains incumbent upon this Court to ensure that any sentence appropriately reflects the objective gravity of the offending. Determination regarding Ground 2 1. In my opinion, the principles relevant to the determination of Ground 2 are as follows. 2. In exceptional circumstances, where at the time of sentencing the offender had an existing medical condition, and subsequently fresh evidence comes to light indicating that the condition has worsened during incarceration, this Court will receive such fresh evidence: Iglesais v R [2006] NSWCCA 261 at [10]. 3. Following the receipt of the fresh evidence, this Court must then consider the following question in determining whether to intervene: "The question thus arises whether the applicant's period of incarceration would be more onerous than it was considered to be when he was sentenced and, if so, whether any reduction in his sentence or, at least the non-parole period, is justified." (Khoury v R [2014] NSWCCA 272 at [25]) 1. This Court in Iglesias v R stated that this question "requires consideration of his [or her] physical condition, the availability of medical facilities and whether he [or she] can be adequately treated within the prison system". 2. Recent decisions of this Court exemplify the refusal to intervene in circumstances where no error is otherwise established and where the offender may apply for the prerogative of mercy or early release by the State Parole Authority (SPA): R v Jones (1993) 70 A Crim R 449; R v Jacobs [2001] NSWCCA 212; Iglesias v R [2006] NSWCCA 261; Anastasiou v R [2010] NSWCCA 100; GS v R [2016] NSWCCA 266. 3. To expand a little upon the above broad statements, in R v Jones (1993) the applicant contracted HIV whilst incarcerated and awaiting sentence, but was only discovered to be HIV-positive after he was sentenced. Accordingly, the infection was unknown to the sentencing judge or anyone else at the time of sentencing. On appeal, this Court refused to reduce the applicant's sentence, in light of the "perfectly appropriate sentence"; the responsibility of the Department of Corrective Services to provide medical treatment and care; and the powers vested in the then-Offenders Review Board to release the applicant on humanitarian grounds. 4. In R v Jacobs, the applicant was in a motor vehicle accident around 11 months before the date of imposition of sentence. As a result of the accident, the applicant suffered from poor physical health, requiring surgery and post-operative treatment, ongoing care, physiotherapy and hydrotherapy sessions. 5. Fresh evidence was subsequently admitted on appeal indicating that "treatment had not been available in the prison system as the sentencing judge had understood that it would be", and that the conservative treatment that was available in prison had not been successful in treating the applicant: R v Jacobs at [27]. The fresh evidence also indicated that surgical amputation was the only alternative within the gaol system, but that there was another surgical procedure in the private health system that offered good prospects of alleviating the condition of the applicant: R v Jacobs at [27]. 6. This Court was not persuaded to reduce the sentences, but also noted that, if there were a significant deterioration in the applicant's condition, he could apply to the Parole Board for compassionate release. 7. In Iglesias v R, the presence of cancer had been detected in the applicant shortly after he was sentenced. The applicant underwent surgery and the cancer was removed. On appeal, fresh evidence was admitted indicating that the surgery would have adverse effects on the "applicant's quality of life reflected in a reduction in exercise tolerance, the extent of that reduction being dependent upon on whether or not he continues to smoke". There was no fresh evidence that the cancer had returned. 8. This Court was not satisfied that the non-parole period of the applicant should be reduced. It was also said that, should the applicant develop a further tumour, it was conceivable that an adequate level of care could not be provided within the prison system. Nonetheless, it was said that the applicant could apply for compassionate release by the SPA, or apply for the exercise of the prerogative of mercy. 9. In Anastasiou v R, at the time of the appeal, the applicant was "dying from a cancer developed from cirrhosis of the liver". It was likely that the applicant had been suffering from this illness at the time of sentencing, but it had not been diagnosed at that stage. The applicant appealed against the sentence imposed on the basis that the sentencing judge did not take into account his ill-health and life expectancy, because those details were simply not known at that stage. 10. This Court held that the sentence imposed was towards the lower end of the range of sentences that were available, and that it would have been "extraordinary" if the applicant had not been sentenced to a full-time term of imprisonment, even with the evidence of the applicant's ill-health. 11. This Court further considered whether the period of incarceration was to be more onerous than was appreciated when the applicant had been sentenced. It was held that the applicant was being appropriately treated and accommodated in gaol. This Court also observed that if the applicant were to become worse he would be entitled to apply to be released on parole or apply for the exercise of the prerogative of mercy. 12. In GS v R, the applicant was aged 67 years at the time of sentence and was a "frail inmate" suffering from chronic kidney disease, a recurrent serious infection (cerebral aspergillosis), diabetes, a history of ischemic heart disease, strokes, and epilepsy. In addition, the estimated life expectancy of the applicant was significantly reduced, with only a few years remaining to him at the time of sentencing in 2011. 13. This Court found that the sentencing judge was aware of the ill health of the applicant, and that the sentencing judge took that into account when sentencing the applicant. In particular, N Adams J observed that "it is not for this Court to intervene in a sentence that is otherwise appropriate and not affected by error in order to give an ill or elderly applicant hope of release before his or her death." Her Honour then concluded that it was open to the applicant to apply to the SPA for early release on parole on compassionate grounds, pursuant to s 160 of Crimes (Administration of Sentences) Act 1999 (NSW) (CASA). 14. Applying those principles to this matter, and bearing in mind the concession of the Crown, I think it appropriate to admit the medical evidence obtained since the hearing of the application, on the basis that it is compelling evidence of a serious medical condition that was not apparent at the time of the imposition of sentence. 15. I would thereafter uphold ground 2, and re-sentence the applicant, at the least on the basis that his terminal illness will make his time in custody more difficult physically and psychologically than it would be if he were completely well, or even if he were simply suffering from cirrhosis of the liver. As well as that, it is clear that the applicant will never again be able to enjoy life in the community as a healthy person, and that in itself will make incarceration more difficult. 16. Having said those things, I agree with the submission of the Crown that the objective gravity of the offending remains a matter that must reflected in the sentence. 17. I would not interfere with the indicative sentences provided by her Honour. I would, however, provide a greater measure of implicit concurrence between all of those indicative sentences. I would reduce the aggregate head sentence from 18 years to 14 years. I would maintain the ratio of two thirds between the non-parole period and the head sentence. With minimal rounding down, that leads to an aggregate non-parole period of 9 years 4 months. 18. Patently, on the evidence of his life expectancy, that reduced sentence provides no actual relief to the applicant in terms of spending any portion of his remaining time at liberty. But the solution in that regard lies in ss 160, 160AD, and 270 of the CASA, not in this Court imposing a manifestly inadequate sentence on resentence. Proposed orders 1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence upheld. 3. The aggregate sentence imposed by Bright DCJ on 11 December 2017 is quashed. 4. In substitution, the applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, with a non-parole period of 9 years 4 months, each to commence on 8 September 2017. 5. The first date upon which the applicant appears to be eligible for release to parole pursuant to that sentence is 7 January 2027. Lissock Diagram (10.3 KB, pdf) 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: 29 November 2019