Albert Price (a pseudonym)[1] v The Queen - [2018] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0022

ALBERT PRICE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of victims, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WEINBERG, TATE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2018
DATE OF JUDGMENT:	7 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 54
JUDGMENT APPEALED FROM:	DPP v Price (a Pseudonym) (Unreported, County Court of Victoria, Judge Parsons, 29 May 2015)

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CRIMINAL LAW – Appeal – Sentence – Application to adduce fresh evidence – Applicant diagnosed with terminal cancer probably present at date of sentence – Life expectancy up to 12 months – Whether sentencing discretion re-opened – Added burden of imprisonment owing to ill-health – Appeal allowed – Non-parole period varied so that applicant eligible for immediate release – R v Nguyen [2006] VSCA 184; Eliasen v The Queen (1991) 53 A Crim R 391; R v Williams (Unreported, Supreme Court of Victoria, Court of Appeal, 18 September 1995) applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass with Ms H Canham	Victoria Legal Aid
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

I invite McLeish JA to deliver the first judgment.

McLEISH JA:

On the basis of fresh evidence, the applicant seeks leave to appeal against a sentence imposed on 29 May 2015 in the County Court. He also seeks an extension of time in which to make that application.

The applicant had pleaded guilty to four charges of indecent assault and one charge of sexual penetration of a child under 10 years. The four victims of the offending were aged between seven and 11 years at the time of the offending. The applicant had previously been sentenced to imprisonment in respect of other offences of a sexual nature, involving two other children. The earlier sentence was for a total effective term of six years and four months’ imprisonment.

On the offences the subject of the present application, a total effective sentence of four years’ imprisonment was imposed, with two years of that sentence imposed cumulatively upon the earlier sentence, giving an overall total effective sentence of eight years and four months’ imprisonment. The sentencing judge fixed a non-parole period of five years.

The Court has been informed that the earliest possible release date for the applicant is 19 March 2018 and that his sentence ends on 19 July 2021.

It is not in issue, and the material before the Court supports the conclusion, that the applicant is suffering from rectal cancer which was probably in existence at the time of sentencing on the present charges and which is now in a terminal phase. A prognosis given by Associate Professor Sue-Anne McLachlan, Director of Oncology and Cancer Services, St Vincent’s Hospital on 21 November 2017 states that the best scenario…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 54
Decision Date: 7 March 2018

CaseChat Overview and Summary

The Court of Appeal heard an appeal from Albert Price against the Crown, concerning the sentence imposed on him. The appellant, who was diagnosed with terminal cancer, likely present at the time of sentencing, argued that his life expectancy was limited to up to 12 months. He contended that this new evidence necessitated a re-examination of his sentencing discretion. The central legal question was whether the fresh evidence about his terminal illness warranted a re-opening of his sentencing discretion and consideration of the additional burden of imprisonment due to his poor health. The court had to decide if the appellant's circumstances met the criteria for re-opening sentencing discretion as established in previous cases such as R v Nguyen and Eliasen v The Queen.

The Court of Appeal acknowledged the significant weight of the fresh evidence regarding the appellant's terminal illness and its impact on his life expectancy. They considered whether this new information sufficiently altered the circumstances at the time of sentencing to justify a re-opening of the sentencing discretion. The Court noted that the appellant's ill health added a substantial burden to the imprisonment, which was a crucial factor in their decision. By referencing precedents such as R v Williams, the Court found that the appellant's situation did meet the threshold for re-opening sentencing discretion. Consequently, the Court allowed the appeal and varied the non-parole period to make the appellant eligible for immediate release.

The Court of Appeal's decision was grounded in the significant impact of the appellant's terminal illness on his ability to serve his sentence. By allowing the appeal and modifying the non-parole period, the Court ensured that the appellant could be released immediately, considering his health condition. The final orders of the court reflected a compassionate approach, recognising the appellant's limited life expectancy and the unjust burden of imprisonment on his health. This decision underscores the importance of considering the unique circumstances of each case when re-opening sentencing discretion.

Orders