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:

1. I invite McLeish JA to deliver the first judgment.

McLEISH JA:

1. 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.

1. 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.

1. 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.

1. 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. 

1. 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 for the applicant is a life expectancy of up to 12 months but that he could die from the metastatic cancer or complications of it at any time.  Associate Professor McLachlan further stated in a letter dated 2 March 2018 that the applicant’s life expectancy is now likely to be ‘measured in months’. 

1. The applicant’s illness was not diagnosed until January 2017.  As a consequence of the cancer and the side effects of treatment, he has suffered rectal pain, faecal incontinence, nausea and severe deep vein thrombosis in his right leg, among other things.  He has undergone surgery to create a permanent colostomy.  The applicant submits, and the Crown accepts, that the diagnosis increases considerably both the burden on the applicant of imprisonment and the serious risk of imprisonment having a gravely adverse effect on his health (at least because he is unable to access clinical trials which would form part of the standard treatment were he not in prison).

1. The Crown accepts also that the case falls within the principles allowing for the reception of fresh evidence on appeal, namely:

(a)               the new evidence must relate to events which occurred since the sentence was imposed;

(b)               the evidence must demonstrate the true significance of facts in existence at the time of the sentence;  and

(c)               the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive.[2]

[2]R v Nguyen [2006] VSCA 184 [36]; Eliasen v The Queen (1991) 53 A Crim R 391, 394.

1. It is plain that, had it been known that the applicant was suffering from rectal cancer at the time of sentencing, that fact would have been relevant to the sentencing process. 

1. The fresh evidence bears on the sentence especially because of the added burden that imprisonment will have on the applicant, by reason of his ill-health.  As Charles JA explained in R v Williams:[3]

That the applicant is terminally ill and with a life expectancy of approximately twelve months … produces the consequence that imprisonment will be more burdensome to the applicant than would be the case if he had remained in remission.  Specific deterrence becomes irrelevant to the sentence to be imposed on the applicant by reason of these factors.  He is, in my view, entitled therefore to be treated with greater leniency than would otherwise be the case … .

[3]R v Williams (Unreported, Supreme Court of Victoria, Court of Appeal, Charles JA, Crockett AJA and Southwell AJA, 18 September 1995), quoted with approval in Cardona v The Queen [2011] VSCA 58 [14].

1. On that basis, the fresh evidence should be received, and the sentencing discretion is re-opened as a result of it.  The question is whether on all the material now before the Court, a different sentence should be substituted to avoid a miscarriage of justice.[4]

   [4]R v Nguyen [2006] VSCA 184 [36]–[37]; Eliasen v The Queen (1991) 53 A Crim R 391, 396.

1. In my view, it is appropriate to grant the applications for extension of time and leave to appeal, to allow the appeal and to resentence the applicant in a manner that would make him eligible, should the Adult Parole Board see fit, for immediate release.  However, I would not vary the sentences on the individual charges or the orders for cumulation.  Without going into the specific details of the offending, the total effective sentence of four years’ imprisonment, with only two years to be served cumulatively upon the existing sentence, was at the lowest end of the available range.  Moreover, the prior sentence, in respect of which no appeal is sought, runs until 19 July 2019.  Counsel for the applicant understandably did not ultimately press for a reduction in the total effective sentence in these circumstances.  In my opinion, there is no need, in the circumstances, to modify the head sentence in order to avoid a miscarriage of justice. 

1. The orders that I propose would enable the Adult Parole Board, should it see fit, to allow the release of the applicant on parole.  Whether or not that step is taken is of course a matter for the Board and not for this Court.  However, the Court will ensure that the Board is made aware of its decision today so that the question of parole can be considered as a matter of urgency.

1. The orders I propose are as follows:

1.The application for an extension of time within which to seek leave to appeal against the sentence imposed on 29 May 2015 is allowed.

2.Leave to appeal against sentence is granted.

3.The appeal is allowed.

4.The sentence of his Honour Judge Parsons passed on 29 May 2015 is varied by substituting for the non-parole period of five years’ imprisonment a non-parole period fixed at 4 years and 10 months.

5.The sentence and orders for cumulation are in all other respects confirmed.

1. It should be declared that the applicant has served presentence detention of 1776 days, not including today.

WEINBERG JA:

1. I agree.

TATE JA:

1. I agree with McLeish JA for the reasons he has given.

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