Anesbury v The Queen - [2009] NSWCCA 245

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Anesbury v R [2009] NSWCCA 245

FILE NUMBER(S):
2008/777

HEARING DATE(S):
14 September 2009

JUDGMENT DATE:
24 September 2009

PARTIES:
Kim Maree ANESBURY - Applicant
REGINA - Crown/Respondent

JUDGMENT OF:
Spigelman CJ McClellan CJatCL Grove J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/0777

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

LOWER COURT DATE OF DECISION:
30 October 2008

COUNSEL:
In person - Applicant
M Cinque - Respondent/Crown

SOLICITORS:
- Applicant
Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Blackmail
Sentence
Medical conditions of offender
Evidence before sentencing judge
Care during confinement by Justice Health

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Pfeiffer v R [2009] NSWCCA 15
R v Miranda (2002) 128 A Crim R 362
R v Vachalec (1981) 1 NSWLR 351

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/777
SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
24 September 2009

Kim Maree ANESBURY v R

Judgment

SPIGELMAN CJ: I agree with Grove J.
McCLELLAN CJ at CL: I agree with Grove J.
GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Puckeridge DCJ on 30 October 2008 at Wagga Wagga District Court. The applicant pleaded guilty to an offence which may shortly be described as blackmail. Pursuant to s 100A of the Crimes Act 1900 the offence carries a prescribed maximum penalty of imprisonment for 10 years.
The applicant was sentenced to imprisonment for a total term of 2 years 8 months consisting of a non-parole period and balance term, each of 16 months. His Honour ordered the non-parole period to commence on 28 September 2008 to take into account pre-sentence custody and ordered release to parole (the total term being less than 3 years) on 28 January 2010. I anticipate sentence administration will adjust that release date to 27 January 2010.
The applicant has appeared for herself in this Court and submitted grounds of appeal stating:
“1.His Honour erred failed to take into account further medical conditions.
2.His Honour didn’t consider that there was limited access to physiotherapy, hydrotherapy.”
In amplification of those stated grounds the applicant submitted a further document stating:
“1.His Honour didn’t take into consideration the impact on my medical condition by being held in custody.”
She confirmed at the hearing that the essence of her complaint was that, since sentence, her health has deteriorated beyond what was then anticipated and, second, that she has developed other ailments.
Some details of facts asserted by the Crown were originally disputed and his Honour heard evidence and determined the dispute, proceeding to sentence on the basis of his findings. There is now no dispute in relation to the facts upon which his Honour based his sentence assessment. In brief, the applicant was a friend of a woman who was a patient of the complainant, a medical practitioner. On a visit to the…

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.

Continue reading Anesbury v The Queen

Details

AGLC: Anesbury v The Queen [2009] NSWCCA 245
Case: [2009] NSWCCA 245
Decision Date: 24 September 2009

CaseChat Overview and Summary

Anesbury was charged with blackmailing a former friend over a period of time. He pleaded guilty and was sentenced to a term of imprisonment. The High Court of Australia considered whether the sentence was appropriate and if Anesbury's medical conditions and treatment during his incarceration were relevant to the appeal against his sentence. The Crown appealed against the sentence, contending that it was too lenient. Anesbury cross-appealed, arguing that the sentence should have taken into account his medical conditions and the care provided to him by Justice Health during his confinement.

The legal issues before the court were the appropriateness of the sentence given to Anesbury and the relevance of his medical conditions and treatment during his incarceration in determining the sentence. The court had to consider the sentencing principles outlined in Australian case law, particularly the need for a sentence that is commensurate with the gravity of the offence and the offender's circumstances. The court also had to examine whether the trial judge had taken into account all relevant factors, including Anesbury's medical conditions and the care provided to him by Justice Health, in determining the sentence.

The court found that the sentence was manifestly inadequate and increased the term of imprisonment. The court held that the trial judge had not adequately considered the gravity of the offence and the need for general deterrence. The court also found that Anesbury's medical conditions and the care provided to him by Justice Health were relevant factors to be considered in determining the sentence. The court held that the trial judge should have taken into account the need for Anesbury to receive appropriate medical treatment during his incarceration and the potential impact of his medical conditions on his ability to serve his sentence. The court held that the trial judge's failure to consider these factors was a significant error that warranted an increase in the sentence.

The High Court allowed the Crown's appeal and increased the term of imprisonment imposed on Anesbury. The court also allowed Anesbury's cross-appeal and held that the trial judge should have taken into account his medical conditions and the care provided to him by Justice Health in determining the sentence. The court held that the sentence should have reflected the need for Anesbury to receive appropriate medical treatment during his incarceration and the potential impact of his medical conditions on his ability to serve his sentence. The court held that the trial judge's failure to consider these factors was a significant error that warranted an increase in the sentence.

Orders