Anastasiou v R

[2010] NSWCCA 100

New South Wales
Court of Criminal Appeal

CITATION:	ANASTASIOU, Andrew v R [2010] NSWCCA 100 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 March 2010
JUDGMENT DATE:	13 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Rothman J at 3
DECISION:	(i) Leave to appeal be granted; (ii) Appeal be dismissed.

CATCHWORDS:	CRIMINAL LAW – sentence appeal – applicant suffering terminal illness – no other ground of appeal – mercy is the prerogative of the parole authority or the executive government – no basis in principle to allow appeal – applicant currently not suffering distress – appeal dismissed
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912 Drug Court Act 1998
CATEGORY:	Principal judgment
CASES CITED:	House v R [1936] HCA 40; (1936) 55 CLR 499 Iglesias v R [2006] NSWCCA 261 R v Bailey (1988) 35 A Crim R 458 R v Josef Mioduszewski [2004] NSWCCA 154 R v Maarbani [2001] NSWCCA 509 R v MJM [2004] NSWCCA 66 R v Smith (1987) 44 SASR 587 R v Sopher (1993) 70 A Crim R 570 R v Willard [2001] NSWCCA 6
PARTIES:	Andrew Anastasiou (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/232787
COUNSEL:	S Beckett (Applicant) S Dowling (Respondent)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S):	0021/2009
LOWER COURT JUDICIAL OFFICER:	Dive DCJ
LOWER COURT DATE OF DECISION:	26 June 2009

2009/232787

McCLELLAN CJ at CL
JAMES J
ROTHMAN J

13 MAY 2010

ANASTASIOU, Andrew v R

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 JAMES J: I agree with Rothman J.

3 ROTHMAN J: The circumstances of this appeal are a salient reminder, if one were needed, of one of the tragic results of the use of drugs. Mr Anastasiou is dying from a cancer developed from cirrhosis of the liver that was caused by chronic hepatitis C infection from the use of drugs. He seeks leave to appeal, and if leave be granted appeals, the sentence imposed because the fact of his terminal disease, while it existed at the time that Mr Anastasiou was sentenced, was unknown and not taken into account by the sentencing judge.

4 Andrew Anastasiou was initially charged with 16 offences, 14 of which were larceny offences, 1 of which was an attempted break and enter dwelling house with the intent to commit serious indictable offence and the sixteenth of which was possessing house-breaking implements. He was initially sentenced: for the larceny offences, to imprisonment for 9 months; for the attempted break and enter, to imprisonment for 18 months, commencing 4 months after the commencement of the larceny imprisonment terms; and for the possession of house-breaking implements, imprisonment for 9 months to be served wholly concurrently with the attempted break and enter. Each of these sentences was suspended pursuant to s 7(3) of the Drug Court Act 1998. The sentences were imposed (and suspended) by his Honour Senior Judge Dive on 2 March 2009.

5 On 16 April 2009, Mr Anastasiou was again before the Drug Court. This time his Honour Judge Barnett sentenced Mr Anastasiou for a further 10 larceny offences, for each offence Mr Anastasiou was sentenced to 12 months’ imprisonment to be served cumulatively on the sentence imposed on 2 March 2009 and the sentence was, once more, suspended pursuant to s 7(3) of the Drug Court Act.

6 On 26 June 2009, for the third relevant time, Mr Anastasiou was before the Parramatta Drug Court for sentencing for 2 further offences of larceny which were committed on 16 May 2009 and 27 May 2009 respectively. As a consequence of these further offences, and their timing, Barnett DCJ sentenced Mr Anastasiou for each of the suspended sentences and the final two charges. Judge Barnett imposed the following regime on Mr Anastasiou:

(1) Charges 1-14 (Larceny) (maximum penalty: imprisonment for 12 months and/or 20 penalty units) for each charge a total sentence of 9 months with a non-parole period of 4 months to date from 28 February 2009;

(2) Charge 15 (Attempted break & enter dwelling with intent to commit serious indictable offence) (maximum penalty: imprisonment for 10 years) a total sentence of 18 months with a non-parole period of 1 year to date from 28 June 2009;

(3) Charge 16 (Possess housebreaking implement) (maximum penalty: imprisonment for 12 months and/or 20 penalty units) a total sentence of 9 months with a non-parole period of 6 months to date from 28 June 2009;

(4) Charge 17 had been withdrawn and was not the subject of sentence;

(5) Charges 18-27 (Larceny) (maximum penalty: imprisonment for 12 months and/or 20 penalty units) a total sentence of 1 year with a non-parole period of 4 months to date from 28 December 2009;

(6) Charge 28 (Larceny) (committed on 16 May 2009) (maximum penalty: imprisonment for 12 months and/or 20 penalty units) a total sentence of 9 months with a non-parole period of 6 months to date from 28 April 2010 and expire on 27 October 2010;

(7) Charge 29 (Larceny) (committed on 27 May 2009) (maximum penalty: imprisonment for 12 months and/or 20 penalty units) a total sentence of 18 months with a non-parole period of 6 months to date from 28 April 2010 and expire on 27 October 2010.

7 Further, in relation to charges 23 and 28, Barnett DCJ ordered compensation of $250 to Australia Post at Dapto and $1,177 to Myers at Hornsby, respectively.

8 The overall sentence imposed by Barnett DCJ was a non-parole period of 1 year and 8 months commencing on 28 February 2009 and expiring on 27 October 2010 as part of an overall sentence of 2 years and 8 months expiring on 27 October 2011.

9 As earlier stated, Mr Anastasiou seeks leave to appeal against the final sentence imposed by Barnett DCJ in the Drug Court, but does not appeal against charges 1-14, the sentence for which has already expired. The applicant relies on only one Ground of Appeal, namely, the applicant’s ill health and life expectancy, which was not taken into account by the sentencing judge, because its extent was not, at that stage, known, appreciated or available.

10 It is, on the evidence that has been adduced on appeal, apparent that the medical issues suffered by Mr Anastasiou were likely to have been present (albeit undiagnosed) at the time of his sentencing in 2009, but, because they had not yet been diagnosed, were not matters that were adduced before the sentencing judge.

11 As already stated, Mr Anastasiou is dying. The expert medical evidence, which is uncontested, is that he suffers from cirrhosis and liver failure secondary to chronic hepatitis C infection. He has been diagnosed, recently, with incurable hepatocellular cancer, which is a common complication of cirrhosis. The tumour is too advanced for surgical removal and has already spread outside the liver, making liver transplantation non-feasible. He is being managed with orally-administered palliative chemotherapy, but is losing weight and deteriorating steadily. The expert opinion estimates that, on any reasonable basis, he has approximately an 80% likelihood of death by the end of December 2010. As already stated, the tumour was likely to have been present (albeit undiagnosed) at the time of his sentencing hearing in 2009.

12 Plainly, the sentencing judge did not take into account his medical condition, because the judge was not made aware of his medical condition. Nor, it should be added, was anyone, at that time, aware of his medical condition.

13 The appeal, otherwise, makes no complaint about the sentence imposed. There is no complaint as to the process adopted by his Honour the sentencing judge, his Honour’s findings of fact, the principles applied by his Honour or any other aspect of the hearing and sentence. In those circumstances, the Court must deal with two obvious issues: the first, is the extent to which the Court is entitled to take into account the medical evidence that is now provided; and, secondly, if the Court were able to take into account the medical evidence adduced, what then is the relationship between the present sentence imposed upon Mr Anastasiou (or to be imposed) and the treatment for his medical condition.

Admissibility of medical evidence on appeal

14 Usually, evidence of events or conditions that occur after a sentence has been imposed are not a basis for disturbing the sentence. The Court is, as is made clear by the terms of the Criminal Appeal Act 1912, a court that is confined, in dealing with a sentence below, to the correction of error, identifiable or manifest, and in that regard error of the kind that would allow an appellate court to intervene in the exercise of a discretion: House v R [1936] HCA 40; (1936) 55 CLR 499. As a consequence, the general principle is that a sentencing judge has not been involved in error by declining to take into account that which was not before the sentencing court or that which did not exist at the time that the discretion was being exercised: R v Willard [2001] NSWCCA 6; R v MJM [2004] NSWCCA 66.

15 That general principle gives way to circumstances that existed at the time that the sentencing discretion was exercised, but were unknown at that time, or their seriousness unknown, and, as a consequence, the sentencing judge was unable to take account of that material. Relevantly, and most frequently, the additional information of that kind concerns an undiagnosed medical condition of the offender to be sentenced. This has occurred, in the past, for example, in the situation where persons were suffering from AIDS.

16 The receipt of fresh evidence on medical conditions that are said to have been in existence at the time that the sentencing discretion was exercised was dealt with by this Court in R v Josef Mioduszewski [2004] NSWCCA 154.

17 The Court, in that judgment, expressed the view that the Court may only quash a sentence and pass a fresh sentence, if the Court were satisfied that the sentence which had been passed was not warranted in law and should not have been passed (Criminal Appeal Act, s 6(3)). Subsequent events involving medical treatment were the responsibility of the executive government, both as to the provision of care and treatment of prisoners and in relation to the exercise of executive mercy and/or leniency, and not a matter for the Court on appeal: per Dunford J at [30], with whom Grove and Howie JJ agreed. His Honour expressed the exceptions to the rule as including

“cases where subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing: R v Bradley [2004] NSWCCA 88, R v Spagnolo [2000] VSCA 126 ; (2000) 114 A Crim R 98, or where the circumstances demonstrate that the sentence is being served in conditions much more onerous than, or sufficiently different in nature from, those which were expected: R v Jenkins (unrep – CCA – 14 July 1993)”. ( Mioduszewski , per Dunford J at [31].)

18 In concurring with the judgment of Dunford J in Mioduszewski, supra, Howie J referred and recited the judgment of the Court in R v Ashton [2002] NSWCCA 498; (2002) 137 A Crim R 73 in the following terms:

“10. ‘The basis of the application made to this Court is what is said to be fresh evidence relating to the applicant’s psychiatric state at the time of sentence. In this regard reliance is placed upon the decisions of this Court in Bailey (1988) 35 A Crim R 458 and R v Ehrenberg (NSWCCA, unreported, 14 December 1990). There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. In Bailey the material related to the applicant having been diagnosed with the AIDS virus, a fact that was unknown at the date of sentence. In Ehrenberg it was the birth of a deformed child to the applicant as a result of complications of her pregnancy. In both cases the fresh material indicated that prison would impact more harshly upon the applicant than was thought to be the case when the applicant was sentenced.

11. However, this Court must be careful to maintain a principled approach in dealing with appeals before it. The Court should be scrupulous to ensure that there is a proper basis for receiving evidence of events that occurred after sentence where there is no error established in the sentence imposed. In Ehrenberg , the Court emphasised the special and unusual circumstances that would permit such evidence to be received and acted upon in order to reduce an otherwise appropriate sentence. Loveday J, with whom Gleeson CJ agreed, stated:


It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177).

Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant.’”

19 As a consequence of the foregoing, and given that the medical evidence establishes that the condition now suffered by Mr Anastasiou existed at the time that the sentence was imposed upon him, albeit unknown to any of the participants in the sentencing process, the medical evidence is admissible under one of the exceptions and able to be utilised by the Court.

20 Thus, the Court is entitled to receive fresh evidence for the purpose of reconsidering the sentence, in circumstances such as the present, where the relevant medical condition was present at the time of sentencing (although unknown) and subsequently became known: see also R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458; R v Maarbani [2001] NSWCCA 509 at [17]; and Iglesias v R [2006] NSWCCA 261 at [10], per McClellan CJ at CL.

21 Nevertheless, the mere fact that the Court may take into account the evidence does not necessarily result in a different sentence and does not necessarily warrant the overturning of the sentence below. The care to ensure the integrity of the sentencing process, to which Gleeson CJ, Samuels JA and Loveday J referred, as repeated above, requires the Court to ensure that all of the circumstances are taken into account, including the capacity of the executive to exercise its discretion to account for any sympathy which no doubt may arise.

Relationship between present sentence and medical condition

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.)

24 The evidence before the Court is that, because of his now evident condition, Mr Anastasiou is in Long Bay Hospital, a medical facility that forms part of the corrective services facilities. During part of his stabilisation process he spent six weeks in Prince of Wales Hospital, during which time he was prescribed morphine. From time-to-time, at Long Bay Hospital, he has also been prescribed morphine. The morphine, as may be obvious, is for the purpose of controlling the pain. One of the medical practitioners at Long Bay Hospital has been reluctant to prescribe morphine, possibly because of Mr Anastasiou’s drug addiction, and prescribes methodone and other pain relief. As Mr Anastasiou describes it, the medical treatment at Long Bay is reasonable and no one suggests that medical treatment being provided by Corrective Services is otherwise than appropriate.

25 Is Mr Anastasiou’s incarceration more onerous because of his medical condition? Undoubtedly, Mr Anastasiou is, from time-to-time, in pain. When he is not in pain, as he describes it, he is able to socialise, walk around the wards and is unaware of the pain. Had he not been in hospital he would have served his sentence, it seems, at a low security gaol, possibly at a camp, and his conditions are therefore more restrictive than they might otherwise have been. However, it is not his incarceration which requires greater restriction. His restriction is caused by his illness and medical treatment and, on the material before the Court, would occur whether or not Mr Anastasiou was in the prison system.

26 The medical evidence also includes a report from Justice Health which describes Mr Anastasiou’s condition. It says:

“on examination he showed no signs of distress. He moved freely, his blood pressure and pulse were normal and he had no abdominal tenderness. He did have signs of advanced liver disease; gynecomastia, oedema and palmer erythema.”

This examination occurred in circumstances where Mr Anastasiou had been on methadone since 1996 and was prescribed 100mg per day which, over the last few months, had increased to 120mg twice per day. He is also prescribed oxychodone, 40mg twice per day and ibuprofen 400mg three times per day.

27 The alternative, suggested at appeal, to remaining in prison and treatment by Justice Health, is placement at the Salvation Army’s facility, Foster House. There is written confirmation, before the Court, of accommodation being available at those premises. There is no evidence, other than the evidence adduced in relation to his treatment while in the care of Corrective Services by Professor Lloyd at Prince of Wales Hospital, of the availability of medical treatment and the capacity of Mr Anastasiou to both arrange and afford the kind of medical treatment that would be required. Further, there is some doubt (see paragraph 7 of the Affidavit of Ms Witmer of 22 February 2010) that Foster House would be able to continue to offer accommodation once Mr Anastasiou’s illness became more problematic and more incapacitating. The suggestion is that, ultimately, facilities at a hospice would be required.

Conclusion

28 The sentence imposed upon Mr Anastasiou cannot be described as harsh. It is at the lower end of the range of sentences that were available to be imposed upon him. As already stated, no complaint is made as to the sentence that was imposed.

29 It would have been extraordinary, even with the knowledge that the Court now has of Mr Anastasiou’s health, for Mr Anastasiou to have escaped incarceration, given the circumstances of his offending and the breaches of the Drug Court arrangements that had occurred.

30 There is no suggestion that Mr Anastasiou’s incarceration will aggravate his illness. Indeed, on the evidence before the Court, it is plain that, as tragic as are the circumstances of Mr Anastasiou, he is being treated appropriately by Justice Health. His preference for morphine as a painkiller, as distinct from methadone, may be understandable, but there is no evidence that the restrictions on the prescription of morphine will necessarily continue.

31 Further, the treatment that he is currently prescribed seems to be, on examination, such that he is not experiencing distress, beyond the obvious distress of suffering from an illness of this kind. It cannot be suggested that, even with the illness, if it were known at the time of sentencing, Mr Anastasiou would have escaped the imposition of a full-time custodial sentence.

32 Critical to the question of whether this Court should intervene is whether Mr Anastasiou’s medical condition, as we now understand it, will render his period of incarceration more onerous than was appreciated when he was sentenced. In one sense that is so. In another sense, his incarceration may be providing him with medical care that is otherwise not available. A consideration of these issues requires a consideration of Mr Anastasiou’s physical condition as it now is, the availability of medical facilities within the prison system and whether those facilities can provide adequate treatment for his condition.

33 I have no doubt that Mr Anastasiou can be adequately treated in prison. There are available medical facilities conducted by Justice Health, which, on all the evidence, is at the very least reasonable and appropriate. It has been shown in this case that, in the past, he has been provided medical attention at Prince of Wales Hospital by leading specialists where more specialised attention is required.

34 There is no doubt that the terminal illness of the applicant, Mr Anastasiou, is one which evokes great sympathy, not least from the Court. But sympathy is not the test that this Court must apply. The Court must apply principle.

35 Mr Anastasiou is currently appropriately accommodated within the prison system. He will, of course, get worse (or at least that is the expectation of the medical experts). When he does (and even now), he is entitled to apply for and be granted parole or subject to the prerogative of mercy.

36 The terms of s 160(1) of the Crimes (Administration of Sentences) Act 1999 provide that, although not eligible for parole, “if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances”, the Parole Authority could release him from prison. Further, s 270 of the aforesaid Act preserves the prerogative of mercy available in the Executive Government.

37 No doubt, there will come a time when it will be essential for Mr Anastasiou to be released from prison. His release from prison, at this stage, would be as a result of sympathy, not principle, and such sympathy is the province of Executive Government, either through the Parole Authority or the prerogative of mercy; not by the grant of the appeal.

38 In all of the circumstances, and notwithstanding the sympathy for the applicant, I would propose that the Court make the following orders:

(i) Leave to appeal be granted;

(ii) Appeal be dismissed.

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08/06/2010 - Error identified in relation to the date of the hearing - Paragraph(s) Coversheet