Dudgeon v R - [2014] NSWCCA 301

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dudgeon v R [2014] NSWCCA 301
Hearing dates: 25/08/2014
Decision date: 10 December 2014
Before: Beazley P at [1];
Hidden J at [8];
Fullerton J at [9]
Decision:
1. The sentences imposed in the District Court on 13 May 2013 are quashed.
2. In lieu thereof and after taking into account the offences on the Form 1 on the first count the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years to date from 8 November 2012 and, on the second count, to imprisonment for a period of 4 years with a non-parole period of 2 years to date from 8 November 2013.
3. The applicant is eligible to be considered for release to parole on 7 November 2015.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break, enter and steal - applicant has a terminal illness
Legislation Cited: Crimes Act 1900 (NSW), s 112(2)
Crimes (Administration of Sentences) Act 1999 (NSW), s 160
Cases Cited: Iglesias v R [2006] NSWCCA 261
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
Category: Principal judgment
Parties: Adam Jason Dudgeon (Applicant)
The Crown (Respondent)
Representation: Counsel:
D Carroll (Applicant)
V Lydiard (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/348987
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-05-13 00:00:00

Before:

Maiden DCJ

File Number(s):

2012/348987

Judgment

BEAZLEY P: The applicant in this matter has terminal cancer and, on the latest information available to the Court, has a very short time to live. Fullerton J, whose draft reasons I have had the opportunity of reading and with which I agree, has found that the applicant's medical condition pre-dated his sentence. The Court, therefore, was entitled to receive fresh evidence relating to his medical condition and is empowered to re-sentence the applicant on the medical evidence now before the Court.

As Fullerton J has explained in her judgment, on 13 May 2013, the applicant pleaded guilty of two counts of aggravated break, enter and steal contrary to the Crimes Act 1900 in the District Court. The offences were committed whilst the applicant was on parole for a series of armed robberies. The offences were, correctly, in my opinion, assessed by the sentencing judge as being above the mid-range of objective seriousness.

The sentencing judge imposed a total effective sentence of 7 years with a non-parole period of 5 years to date from 8 November 2012, the day of his arrest. Under the sentence imposed by the sentencing judge, the first date on which the applicant will be eligible for release is 7 November 2017. Fullerton J has described that sentence as "very lenient".

Giving its leniency, in normal circumstances there would have been no basis for this Court to interfere with the sentence imposed by the sentencing judge. The conduct involved in the offending was serious and the offences were committed whilst on parole for armed robbery offences. The applicant has a longstanding criminal record and a history of re-offending. However, the applicant's circumstances as they are now presented to the Court in the further evidence reveal that he is seriously and terminally ill and he may not survive into the new year. His treatment in his present custodial arrangements is far from optimum.

This has presented the Court with a difficult sentencing task. Had the sentencing task involved a free standing discretion, the Court may well have considered that it was appropriate that the applicant be immediately released to parole. However, the Court is required to sentence the applicant in accordance with proper sentencing principles. Whilst that task is appropriately evaluative, it does not entitle the Court to disregard, amongst other things, the seriousness of the offending conduct, including that it was committed whilst the applicant was on bail. Fullerton J's remarks at [25]-[26] give expression to this. For the reasons her Honour gives, I consider that the sentence she proposes is appropriate.

The views that the Court has expressed through Fullerton J's reasons does not preclude the applicant making an application to the Parole Board for his immediate release. Although the Parole Board did not see fit to release the applicant on his last application, his medical condition has since deteriorated. Fullerton J has helpfully set out by way of schedules to her judgment, a chronology and a summary of the material that was before the Court outlining the applicant's accommodation, treatment, care and support should he be released.

Should the applicant make a further application to the Parole Board, it might be presumed that the Parole Board would have before it material that was up to date at that time as to the applicant's condition and circumstances. However, Fullerton J's schedules could well be of considerable assistance and consideration should be given to providing the judgment and the schedules to the Parole Board, should a further application be made.

HIDDEN J: I agree with Fullerton J.

FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 13 May 2013 after pleading guilty in the Local Court to two counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. A further offence of goods in custody was taken into account on a Form 1 on the first of those counts.

After allowing a discount of 25 per cent for his pleas of guilty, and after a finding of special circumstances and an order of partial accumulation of twelve months, the applicant was sentenced to an effective sentence of 7 years with a non-parole period of 5 years to date from 8 November 2012, the date of his arrest. He will be first eligible for release to parole on 7 November 2017.

The first of the two offences of aggravated break, enter and steal was committed on 18 October 2012. The feature of aggravation in respect of that offending was constituted by the applicant tying the victim's wrists with a belt and ankles with a power cord and placing a bag over his head after entering his home through a window armed with a knife. Thereafter the applicant demanded money and threatened to slit the throats of the victim's housemates if they returned home. He then ransacked the house, looking for money and other valuables, and stole a large amount of property including $950 in cash together with jewellery and electronic goods to the value of $6,000.

The second offence was committed on 7 November 2012, again when the applicant entered the victim's home through a window. The victim of that offence returned home to find the applicant endeavouring to remove a portable safe. He was also armed with a knife on that occasion which he used to threaten the victim. The feature of aggravation in respect of that count was the infliction of physical violence when, in response to the victim calling out to neighbours to help, the applicant punched him to the face causing swelling and lacerations.

The offence on the Form 1 concerned the applicant's possession of various goods suspected of being stolen, including a Pentax camera, camera lenses and a flash attachment.

The offences were assessed by the sentencing judge as being slightly above the mid range of objective seriousness.

Both offences were committed whist the applicant was on parole for a series of armed robberies for which he received an effective sentence of 9 years with a non-parole period of 6 years in 2006. He was released to parole on 20 December 2011. The State Parole Authority revoked his parole on 29 November 2012. The balance of parole expired on 26 October 2014. Given the date of commencement of the sentence imposed on the first count the balance of parole was served wholly concurrently with the effective sentence imposed for both counts.

The applicant gave evidence on sentence and relied upon a report from Laura Durkin, a forensic psychologist. It was on the basis of what his Honour described as Ms Durkin's detailed, objective and insightful clinical examination of the applicant that he made the finding of special circumstances, despite the applicant's lengthy criminal history and poor response to supervision in the past.

The following features of the applicant's subjective case were established by the evidence led on sentence.

The applicant was aged 39 at time of sentence. He had an extensive criminal record including lengthy periods of imprisonment, in addition to the armed robberies earlier referred to. The sentencing judge noted that since the age of 25 the applicant has been in continuous custody other than for short periods of time invariably in circumstances where he came to adverse notice.

The applicant has a chronic drug addiction extending from his mid-teens to the time of his offending. His past offending and the offending the subject of the sentence proceedings is drug-related. On his release from custody in December 2011 it would appear the applicant was abstinent for a period of time but that he struggled to adjust in the immediate post-release phase to community life which was complicated by his chronic depression and anxiety. The sentencing judge accepted he has a history of a depressive illness for which he has been medicated from time to time. The applicant's various and, it would seem, valiant attempts at extricating himself from drug abuse in the past have been compromised by what the reporting psychologist described as "numerous psychosocial stressors".

It would appear from the sentencing remarks that the sentencing judge was impressed by the applicant, and acceded to the applicant's request that he be given "one last chance" in his determination to avoid reverting to drugs by affording him some leniency in the fixing of sentence. His Honour was apparently satisfied that over the six months of the applicant's most recent remand he had taken concerted and sustained steps to remain abstinent from drugs, including electing to be housed on a limited association basis to avoid the risk of negative interaction with other prisoners.

The sole ground of appeal concerns what I am satisfied on the evidence led on the appeal, supplemented by evidence obtained at the Court's request after the hearing of the appeal, is the fact that the applicant is suffering from terminal cancer and is not expected to survive beyond a period measured in months as at the date of publication of these sentencing reasons. I am also satisfied, contrary to the Crown's submissions on the appeal, that his terminal illness was extant as at the date of sentence but that it was undiagnosed at that time and remained undiagnosed until 24 October 2013, that is, five months after he was sentenced.

For ease of reference I have attached a chronology of the accused's various dealings with Justice Health and other specialist physicians from 23 December 2012 to the most current report from a treating specialist in September 2014 which substantiates that finding (Schedule 1 to this judgment).

I am also satisfied, that the jurisdiction of this Court is properly invoked and it was appropriate to receive the full complement of the applicant's medical records as fresh evidence on the appeal (including the materials furnished after the hearing of the appeal) and to reopen the question of an appropriate sentence in light of that evidence, including evidence bearing upon the circumstances which will make the applicant's continued incarceration more burdensome than would be the case were he in good health (see Iglesias v R [2006] NSWCCA 261 at [1]-[13]). Were I not persuaded that the applicant's terminal illness predated the date of sentencing, this Court would have no jurisdiction to receive fresh evidence bearing on his medical condition or to move to re-sentence on the basis of that evidence. Where a terminal illness is diagnosed after sentence and cannot be shown on the available medical evidence to have been extant at the date of sentence, the custodial conditions a prisoner in that situation may have to endure is a matter for the executive (see R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at [124]-[126]).

Affording full weight to the evidence relied upon by the applicant in support of his immediate release (a summary of the evidence is annexed as Schedule 2 to these reasons), the remaining and critical question in exercising the re-sentencing discretion is whether sentences could properly be imposed for each of the two counts of aggravated break, enter and steal which would have the practical effect of allowing for the applicant's immediate release from custody either unconditionally or on parole, that is, by the imposition of sentence with a non-parole period of 2 years to date from 8 November 2012 or under another sentencing option. (I note that because a standard non-parole period attaches to an offence under s 112(2), it is not open to impose a fixed term of imprisonment.)

The difficulty that I am confronted with in considering that question is that, given that the balance of the unexpired term of the previous sentence for the armed robberies expired on 16 October 2014, any sentence structured in that way will mean the applicant will have served, to date, a period of less than two months attributed directly to the break, enter and steal offences.

In light of the applicant's terminal illness and the conditions of his custody, and other considerations pertaining to his need for palliative care, I am satisfied that the already very lenient sentence imposed by the sentencing judge should be moderated by a degree. However, given the gravity of his offending, replete as it was with the statutory features of aggravation under s 112(2), and the fact that the offences were committed whilst on parole for armed robberies, I am constrained to impose a sentence the effect of which will not result in the applicant's immediate release.

The orders I propose are as follows:

(1) The sentences imposed in the District Court on 13 May 2013 are quashed.

(2) In lieu thereof and after taking into account the offences on the Form 1 on the first count the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years to date from 8 November 2012 and, on the second count, to imprisonment for a period of 4 years with a non-parole period of 2 years to date from 8 November 2013.

(3) The applicant is eligible to be considered for release to parole on 7 November 2015.

For my part, I would wish also to note (as reflected in Schedule 1) that on 24 April 2014 the applicant applied to the State Parole Authority for a parole order to be issued pursuant to s 160 of the Crimes (Administration of Sentences) Act 1999 (NSW). That section expressly allows for a grant of parole where an offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional or extenuating circumstances. The medical evidence current as at that date was provided to the Authority as it was to this Court.

On 15 July 2014 the Parole Board refused to exercise the statutory power under s 160. It gave no reasons for so doing.

On enquiring of the applicant's solicitors, the Court has been informed that as at 24 November 2014 no further application has been made to the State Parole Authority based upon the updated medical reports the Court invited the applicant to submit for the Court's further consideration after judgment was reserved in August 2014, which included a revised estimate of the applicant's life expectancy. Were a further application to be made, I consider it appropriate for the decision of this Court, and the annexed schedules, to be provided to the Parole Authority for their further consideration.

SCHEDULE 1

Date
Event
23 April 2001
Applicant convicted of aggravated armed robbery. Received an effective sentence of 7 years with a non-parole period of 5 years and 6 months.
10 July 2005
Released on parole.
6 October 2005
The applicant committed four armed robberies, and assault of a police officer.
8 August 2006
Sentenced to imprisonment for 9 years with a non-parole period of 6 years and 2 months.
7 October 2011
Earliest date of his eligibility for parole for the four armed robberies and assault committed in 2006.
20 December 2011
The applicant was released to parole.
18 October 2012
Committed aggravated break, enter and steal (Count 1).
2 November 2012
Possession of goods reasonably suspected of being stolen (Form 1).
7 November 2012
Committed aggravated break, enter and steal (Count 2).
8 November 2012
The applicant was arrested and made 'immediate admissions' to all 3 offences.
Remanded in custody at Cessnock CC. Bail refused.
20 November 2012
Transferred from Cessnock CC to Metro Remand Centre ("MRRC").
29 November 2012
The State Parole Authority revoked the applicant's parole, effective from 18 October 2012.
6 December 2012
Transferred from MRRC to Bathurst CC
8 December 2012
Transferred from Bathurst CC to Lithgow CC.
23 December 2012
The applicant completed a patient request form citing 'my skin cancer spots needed checking and my mental health needed to be reviewed'.
January 2013
The applicant noticed a lump on his left cheek which he thought was a boil in this month.
15 January 2013
The applicant was examined by a GP, Dr John Dearin. There was no mention of any skin problems according to Dr Forstner's report but no direct evidence from Dr Dearin was tendered on the appeal.
4 February 2013
The applicant was examined by an unidentified medical practitioner without any specialist designation. There is no mention of a skin condition (again, according to Dr Forstner's report but no direct evidence of from the medical practitioner was tendered on the appeal).
20 February 2013
The applicant entered limited association, or 'Protective Custody'.
30 March 2013
Transferred from Lithgow CC to MRRC.
1 April 2013
A registered nurse saw the applicant and noted, 'pt states he has no problems with his skin' (again, as noted by Dr Forstner but without direct evidence from the nurse).
2 April 2013
Transferred from MRRC to Cessnock CC.
15 April 2013
Transferred from Cessnock CC to MRRC.
16 April 2013
The applicant was seen at the MRRC clinic.
23 April 2013
Pre-sentence report prepared by Laura Durkin, psychologist (she does not mention the applicant's lesion).
24 April 2013
Transferred from MRRC to Parklea CC.
9 May 2013
Transferred from Parklea CC to Cessnock CC.
10 May 2013
The applicant gave evidence during the sentencing proceedings.
13 May 2013
The sentencing judge sentenced the applicant to an effective head sentence of 7 years with a non-parole period of 5 years.
Sentence to commence on 8 November 2012 and expire on 7 November 2019.
19 May 2013
The applicant made a request to see the nurse as 'the sore' on his cheek 'had returned and was oozing fluid'. (clinical records exist)
1 June 2013
The applicant went to the clinic and had his 'boil' treated and dressed (clinical records exist)
3 June 2013
The applicant again went to the clinic and had his 'boil' treated and dressed (clinical records exist).
22 June 2013
The applicant requests assistance, 'please do something to heal the boil on my left cheek'. (clinical records exist)
26 June 2013
Dr Badami examines the applicant's face and describes the lesion. The doctor queried whether it was cancer and made a clinical note to follow up.
(Dr Forstner opines that this assessment was 'reasonable and the most likely differential diagnosis was documented' - clinical records exist)
1 July 2013
Transferred from Cessnock CC to Parklea CC. Did not receive the tests ordered by Dr Badami.
12 July 2013
The applicant requested treatment medical treatment for the 'sore on side of cheek which has been there for 5-6 months'. (clinical records exist)
22 July 2013
Dr Yehia examines the applicant and notes the lesion to his face, and arranges an appointment with a surgeon. (clinical records exist)
7 August 2013
Transferred from Parklea CC to Long Bay Hospital.
8 August 2013
Dr Hibberd examined the applicant at Prince of Wales Hospital, diagnoses the lesion as "cancerous" and advises that it be removed.
Consultation with Dr Keogh (surgeon). A possible diagnosis was basal cell carcinoma (BCC). The treatment plan was to excise the lesion and subject it to cell analysis (cytology).
The surgery was listed as priority to be done within '90 days'. Dr Forstner's opinion is that a 90 day priority is reasonable in the circumstances. (clinical records exist)
13 August 2013
Transferred from Long Bay Hospital to South Coast CC.
21 August 2013
Dr Mayer issued an urgent referral to plastic surgery to follow up on Dr Hibberd's recommendation that the lesion be excised (with or without flap repair) and to arrange for a cytology technician to perform a fine needle aspiration in theatre. (clinical records exist)
22 August 2013
Transferred back to Long Bay Hospital from South Coast CC
The applicant noticed a lump in his neck 'the size of a pea'. No medical records to substantiate this.
23 August 2013
Chest x-ray conducted and revealed no metastases in the applicant's lungs.
5 September 2013
Transferred to South Coast CC from Long Bay Hospital.
11 September 2013
The applicant requested medical treatment in relation to the lesion on the left cheek and the lump under his jaw.
12 September 2013
Dr Mayer examined the applicant. He asked to be advised if no appointment for surgery was made in the next month.
1 October 2013
Dr Mayer detected an obvious lymph node.
5 October 2013
The applicant consulted a nurse who recorded a clinical note of the pain experienced by the applicant near the 'ear and jaw'.
Multiple clinical notes record the applicant complaint of pain near the ear, jaw and neck (rather than the cheek) on 6 October and 8 October 2013. According to the applicant, by this time the lump had grown to the size of a 'golf ball'.
9 October 2013
Dr Mayer examined the applicant and documented that the tumour had significantly increased in size and had developed a left submandibular node. Dr Mayer emailed Justice Health and advised that the applicant 'requires urgent surgical management'.
16 October 2013
Dr Mayer referred the applicant for further CT scans.
17 October 2013
A CT scan was scheduled but cancelled due to staff shortage.
24 October 2013
CT scan showed pulmonary nodules consistent with metastases.
In Dr Forstner's opinion, from this date, it was clear the applicant had a 'gross metastatic disease' and that he was 'likely [to have] had smaller volume metastatic disease for at least 4-8 weeks prior and maybe even longer'.
25 October 2013
Dr Kenneth Landers referred the applicant for further assessment urgently.
29 October 2013
Transferred back to Long Bay Hospital.
5 November 2013
A biopsy was conducted on the excised part of the lesion on the applicant's cheek.
7 November 2013
Dr Sandy Kershaw consulted with the Applicant and noted that the 'applicant was not aware of the possibility of metastatic cancer and is shocked'.
Dr Hibberd also reviewed the applicant and noted that the lesion had increased in size and was now 3cm (according to Dr Forstner).
11 November 2013
Applicant admitted for surgery at Prince of Wales Hospital.
12 November 2013
Surgery cancelled because the cancer had progressed too far. PET scan and biopsies were conducted instead.
15 November 2013
CT guided biopsy of a right lung mass was performed. Dr Smee informed the applicant that his condition may be terminal.
18 November 2013
Associate Professor Robert Smee diagnosed the applicant with stage IV (metastatic) pleomorphic spindle cell sarcoma. Alternatively described as Squamous Cell Carcinoma (SCC).
In Dr Forstner's view, the appropriate diagnosis is a 'sarcoma and not a carcinoma'. This is a rare high grade sarcoma and, in Dr Forstner's opinion, spreads quickly to the lungs.
19 November 2013
Discharged from Prince of Wales Hospital.
26 November 2013
Assessed by Dr Simonelli, a psychiatrist, who noted the applicant was 'distressed' and 'devastated' by the spread of the cancer.
2 December 2013
The applicant received further surgery and had the left facial skin lesion removed together with 32 lymph nodes in his neck.
9 December 2013
The applicant was readmitted to Long Bay Hospital.
22 January 2014
The applicant consulted with Dr Siobhan O'Neill, Senior Staff Specialist, Department of Medical Oncology at the Prince of Wales Hospital.
The applicant was also prescribed Avanza 60mg by a psychiatrist for his depression.
26 January 2014
The applicant collapsed from an unknown cause.
2 February 2014
The applicant had a Portacath inserted in his chest.
3 February 2014
Chemotherapy commenced and was to continue every three weeks.
9 February 2014
The applicant developed a Golden Staph infection from the Portacath and was hospitalised for two weeks.
18 February 2014
Dr O'Neill confirms the diagnosis and estimated the applicant's life expectancy could range from a few months up to around two years (Dr Forstner disagrees. In his view, survival is usually less than 9 months for a cancer of this kind).
A PICC line is inserted into the applicant.
26 February 2014
Dr Lewis, in his capacity as the applicant's treating medical oncologist, wrote to Dr Kershaw (of the Medical Surgical Unit of Long Bay Jail) to confirm the diagnosis. He estimated the applicant had 6-12 months to live.
4 March 2014
Dr Lewis wrote to Dr Kershaw again and described the applicant as 'well' and having regained lost weight.
10 April 2014
Dr Lewis wrote to Dr Kershaw again and noted:
● the applicant had made a full recovery from his Golden Staph infection;
● '[t]here is no evidence of recurrence over the previously resected left cheek lesion or in the left neck. His lungs are clear to auscultation';
● several lung metastases 'have definitely reduced in size' but a 'solitary metastasis in the right lung has increased slightly by about 2mm';
● there was 'no evidence of any new lung metastases and no evidence of metastatic disease outside of the chest';
● the applicant's left lung lower lobe consolidation has been completely resolved.
These results were 'better than [Dr Lewis] had expected'.
15 April 2014
Dr Lewis wrote to the applicant's legal representatives and confirmed his estimate that the applicant had 6-12 months to live.
24 April 2014
The applicant made an application for early release to parole under s 160 of the Crimes (Administration of Sentences) Act 1999.
28 April 2014
The applicant's psychological report was updated by Laura Durkin, Forensic Psychologist, for the purposes of the appeal (see Schedule 2 to this judgment).
30 April 2014
The psychiatric report of Dr Richard Furst, Consultant Forensic Psychiatrist, diagnosed the applicant with:
1. substance use disorder (opiate and amphetamine dependence);
2. depression secondary to a general medical condition (cancer);
3. chronic pain disorder; and
4. personality deferred, likely antisocial traits.
(see Schedule 2 to this judgment)
15 May 2014
In Dr Forstner's initial report, he states that 'the tumour is not very responsive to treatment and [the applicant's] survival is likely to be months'.
He concluded that the applicant's 'care by justice health was reasonable but there was a significant delay [in arranging for] biopsy and definitive diagnosis....however, the greater reason for his poor prognosis was the aggressive nature of the tumour'.
10 June 2014
In Dr Forstner's supplementary report, he states that 'there is only one lump on the cheek that has been referred to and this is entirely consistent with it being the primary cancer'. This opinion is based on three reasons:
1. There is no other primary site identified.
2. That region of the left cheek contains very few lymph nodes and hence it is a highly unusual area to develop metastatic lymphadenopathy.
3. Multiple different nursing and medical reviews document the lesion as being consistently on the left side of the face, suggesting that it was a single continuously present lesion.
Dr Forstner states that, 'on the balance of probabilities the sarcoma was present prior to 13th May 2013'.
15 July 2014
The State Parole Authority refused the application for parole.
28 August 2014
Professor Lewis wrote to Ms Fisher, Nurse Manager at Long Bay Jail, with concerns that his previous correspondence to them was not received. Prof Lewis recommends the applicant receives palliative radiotherapy for the right lung dominant metastasis.
17 September 2014
Prof Lewis emails the applicant's legal representatives and estimates the applicant has 4-6 months left to live.
6 October 2014
Expiration of the sentence imposed in 2006.
7 November 2017
Non-parole period imposed in May 2013 will expire.
7 November 2019
Sentence will expire.

SCHEDULE 2

The applicant's mother, her husband and daughter, will provide him support should he be released from custody (affidavit of Elaine Dudgeon, [8]); Durkin's updated report, [28]).

It appears that the support the applicant will receive from his two daughters, Maddison (aged 18 as of April 2014) and Mackenzie (aged 17 as of April 2014), will be limited.

Maddison was homeless on day of sentencing (13 May 2013, ROS 3.9) and had recently given birth (Sarah Anne) who was born 13 weeks premature. They do not appear to communicate frequently because 'money is tight' (applicant's affidavit, [103]). She does not know the full extent of the severity of the applicant's illness (applicant's affidavit, [104]).

Mackenzie is also unaware of the applicant's diagnosis, although the applicant has informed her through a birthday card that he is 'unwell', and the applicant is not intending to tell her because she is currently preparing for the HSC (applicant's affidavit, [107]).

The applicant has successfully arranged for accommodation five minutes from his parents' residence in Newcastle (Durkin's updated report, [28]). No further evidence to substantiate this was tendered.

A Parole Officer inspected the applicant's parents' home and deemed it a 'suitable place for [the applicant] to serve a parole order' (affidavit of Elaine Dudgeon, [6]).

The only evidence shedding light on the parents' financial capacity to support the applicant is the fact that they've had to sell their house to pay for the applicant's legal fees, and that they are currently occupying premises under a lease.

'[I]ncarceration is having a significantly adverse effect generally on [the applicant's] quality of life at this time...his health continues to be adversely affected by the lack of control he has over aspects of his care, such as his diet' (Durkin's updated report, [33]).

'[H]e will benefit from support and interventions that may ease his mental health concerns. Little other treatment is recommended. As such, the best intervention psychologically for Mr Dudgeon now, should focus on enhancing the connection with his family, enable him to gain some physical comfort and encourage him to stay in contact with a psychologist and a psychiatrist' (Durkin's updated report, [34]).

'His past history of relapsing into drug use and offending in the community is of concern; however, he has had extensive counselling in this respect through psychologists attached to the VOTP and Long Bay Hospital. The treatment plan outlined above [see below] should minimise his risk of relapse into drugs is given a compassionate release from custody on medical grounds, especially if he has ongoing specialist drug and alcohol input, a mental health care plan and is provided Methadone in addition to his antidepressant medication.' (Furst p. 9)

'Accessing of all treatments is likely to be complicated and potentially delayed by his incarceration which makes access to care more difficult. Provision of specialist palliative care services out of hospital setting is likely to be difficult whilst he is in custody. It will likely be impossible to address his psychosocial terminal care needs whilst he is incarcerated. I would strongly support consideration of his release from custody give his very poor prognosis from this aggressive malignancy'. (Dr Forstner's initial report, p. 9)

'I would strongly support this application for early/compassionate release from prison'. (Dr Lewis, 26 February 2014)

If the applicant is released to conditional liberty, Dr Furst recommends at p.8:

1. He is referred to his local GP with a view to providing ongoing medical and psychiatric care, pursuant to a mental health care plan.

2. He attends appointment with his treating doctor, as allocated, at a frequency as directed, probably fortnightly in the first instance.

3. He is placed under the care of Oncology treatment services in Newcastle, probably through the John Hunter Hospital, to continue his chemotherapy.

4. He attends appointments with a treating psychiatrist, as allocated, at a frequency is directed, probably monthly in the first instance, to review his mental health care plan, depression and need for antidepressant medication.

5. He accepts medication as directed by his treating doctor, probably of trial of Endep (Amitriptyline) 100-150mg orally at night in addition to his analgesic medications.

6. He is referred to local drug and alcohol treatment service, probably at his local community health centre, with the likely prescription of Methadone pursuant to the Opioid Substitution Program (OSP). Relapse prevention and drug and ongoing alcohol counselling are also indicated given his addiction issues.

7. He engages in specific psychological counselling to address his chronic pain issues, terminal illness, and adjustment to his cancer, probably through a clinical psychologist in the community as part of his mental health care plan and/or through counsellors working for the oncology service of the Hunter New England Health Service in Newcastle.

**********

Decision last updated: 11 December 2014

Medium Neutral Citation:	Dudgeon v R [2014] NSWCCA 301
Hearing dates:	25/08/2014
Decision date:	10 December 2014
Before:	Beazley P at [1]; Hidden J at [8]; Fullerton J at [9]
Decision:	1. The sentences imposed in the District Court on 13 May 2013 are quashed. 2. In lieu thereof and after taking into account the offences on the Form 1 on the first count the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years to date from 8 November 2012 and, on the second count, to imprisonment for a period of 4 years with a non-parole period of 2 years to date from 8 November 2013. 3. The applicant is eligible to be considered for release to parole on 7 November 2015.
Catchwords:	CRIMINAL LAW - appeal against sentence - aggravated break, enter and steal - applicant has a terminal illness
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Crimes (Administration of Sentences) Act 1999 (NSW), s 160
Cases Cited:	Iglesias v R [2006] NSWCCA 261 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
Category:	Principal judgment
Parties:	Adam Jason Dudgeon (Applicant) The Crown (Respondent)
Representation:	Counsel: D Carroll (Applicant) V Lydiard (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/348987
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-05-13 00:00:00 Before: Maiden DCJ File Number(s): 2012/348987

Date	Event
23 April 2001	Applicant convicted of aggravated armed robbery. Received an effective sentence of 7 years with a non-parole period of 5 years and 6 months.
10 July 2005	Released on parole.
6 October 2005	The applicant committed four armed robberies, and assault of a police officer.
8 August 2006	Sentenced to imprisonment for 9 years with a non-parole period of 6 years and 2 months.
7 October 2011	Earliest date of his eligibility for parole for the four armed robberies and assault committed in 2006.
20 December 2011	The applicant was released to parole.
18 October 2012	Committed aggravated break, enter and steal (Count 1).
2 November 2012	Possession of goods reasonably suspected of being stolen (Form 1).
7 November 2012	Committed aggravated break, enter and steal (Count 2).
8 November 2012	The applicant was arrested and made 'immediate admissions' to all 3 offences. Remanded in custody at Cessnock CC. Bail refused.
20 November 2012	Transferred from Cessnock CC to Metro Remand Centre ("MRRC").
29 November 2012	The State Parole Authority revoked the applicant's parole, effective from 18 October 2012.
6 December 2012	Transferred from MRRC to Bathurst CC
8 December 2012	Transferred from Bathurst CC to Lithgow CC.
23 December 2012	The applicant completed a patient request form citing 'my skin cancer spots needed checking and my mental health needed to be reviewed'.
January 2013	The applicant noticed a lump on his left cheek which he thought was a boil in this month.
15 January 2013	The applicant was examined by a GP, Dr John Dearin. There was no mention of any skin problems according to Dr Forstner's report but no direct evidence from Dr Dearin was tendered on the appeal.
4 February 2013	The applicant was examined by an unidentified medical practitioner without any specialist designation. There is no mention of a skin condition (again, according to Dr Forstner's report but no direct evidence of from the medical practitioner was tendered on the appeal).
20 February 2013	The applicant entered limited association, or 'Protective Custody'.
30 March 2013	Transferred from Lithgow CC to MRRC.
1 April 2013	A registered nurse saw the applicant and noted, 'pt states he has no problems with his skin' (again, as noted by Dr Forstner but without direct evidence from the nurse).
2 April 2013	Transferred from MRRC to Cessnock CC.
15 April 2013	Transferred from Cessnock CC to MRRC.
16 April 2013	The applicant was seen at the MRRC clinic.
23 April 2013	Pre-sentence report prepared by Laura Durkin, psychologist (she does not mention the applicant's lesion).
24 April 2013	Transferred from MRRC to Parklea CC.
9 May 2013	Transferred from Parklea CC to Cessnock CC.
10 May 2013	The applicant gave evidence during the sentencing proceedings.
13 May 2013	The sentencing judge sentenced the applicant to an effective head sentence of 7 years with a non-parole period of 5 years. Sentence to commence on 8 November 2012 and expire on 7 November 2019.
19 May 2013	The applicant made a request to see the nurse as 'the sore' on his cheek 'had returned and was oozing fluid'. (clinical records exist)
1 June 2013	The applicant went to the clinic and had his 'boil' treated and dressed (clinical records exist)
3 June 2013	The applicant again went to the clinic and had his 'boil' treated and dressed (clinical records exist).
22 June 2013	The applicant requests assistance, 'please do something to heal the boil on my left cheek'. (clinical records exist)
26 June 2013	Dr Badami examines the applicant's face and describes the lesion. The doctor queried whether it was cancer and made a clinical note to follow up. (Dr Forstner opines that this assessment was 'reasonable and the most likely differential diagnosis was documented' - clinical records exist)
1 July 2013	Transferred from Cessnock CC to Parklea CC. Did not receive the tests ordered by Dr Badami.
12 July 2013	The applicant requested treatment medical treatment for the 'sore on side of cheek which has been there for 5-6 months'. (clinical records exist)
22 July 2013	Dr Yehia examines the applicant and notes the lesion to his face, and arranges an appointment with a surgeon. (clinical records exist)
7 August 2013	Transferred from Parklea CC to Long Bay Hospital.
8 August 2013	Dr Hibberd examined the applicant at Prince of Wales Hospital, diagnoses the lesion as "cancerous" and advises that it be removed. Consultation with Dr Keogh (surgeon). A possible diagnosis was basal cell carcinoma (BCC). The treatment plan was to excise the lesion and subject it to cell analysis (cytology). The surgery was listed as priority to be done within '90 days'. Dr Forstner's opinion is that a 90 day priority is reasonable in the circumstances. (clinical records exist)
13 August 2013	Transferred from Long Bay Hospital to South Coast CC.
21 August 2013	Dr Mayer issued an urgent referral to plastic surgery to follow up on Dr Hibberd's recommendation that the lesion be excised (with or without flap repair) and to arrange for a cytology technician to perform a fine needle aspiration in theatre. (clinical records exist)
22 August 2013	Transferred back to Long Bay Hospital from South Coast CC The applicant noticed a lump in his neck 'the size of a pea'. No medical records to substantiate this.
23 August 2013	Chest x-ray conducted and revealed no metastases in the applicant's lungs.
5 September 2013	Transferred to South Coast CC from Long Bay Hospital.
11 September 2013	The applicant requested medical treatment in relation to the lesion on the left cheek and the lump under his jaw.
12 September 2013	Dr Mayer examined the applicant. He asked to be advised if no appointment for surgery was made in the next month.
1 October 2013	Dr Mayer detected an obvious lymph node.
5 October 2013	The applicant consulted a nurse who recorded a clinical note of the pain experienced by the applicant near the 'ear and jaw'. Multiple clinical notes record the applicant complaint of pain near the ear, jaw and neck (rather than the cheek) on 6 October and 8 October 2013. According to the applicant, by this time the lump had grown to the size of a 'golf ball'.
9 October 2013	Dr Mayer examined the applicant and documented that the tumour had significantly increased in size and had developed a left submandibular node. Dr Mayer emailed Justice Health and advised that the applicant 'requires urgent surgical management'.
16 October 2013	Dr Mayer referred the applicant for further CT scans.
17 October 2013	A CT scan was scheduled but cancelled due to staff shortage.
24 October 2013	CT scan showed pulmonary nodules consistent with metastases. In Dr Forstner's opinion, from this date, it was clear the applicant had a 'gross metastatic disease' and that he was 'likely [to have] had smaller volume metastatic disease for at least 4-8 weeks prior and maybe even longer'.
25 October 2013	Dr Kenneth Landers referred the applicant for further assessment urgently.
29 October 2013	Transferred back to Long Bay Hospital.
5 November 2013	A biopsy was conducted on the excised part of the lesion on the applicant's cheek.
7 November 2013	Dr Sandy Kershaw consulted with the Applicant and noted that the 'applicant was not aware of the possibility of metastatic cancer and is shocked'. Dr Hibberd also reviewed the applicant and noted that the lesion had increased in size and was now 3cm (according to Dr Forstner).
11 November 2013	Applicant admitted for surgery at Prince of Wales Hospital.
12 November 2013	Surgery cancelled because the cancer had progressed too far. PET scan and biopsies were conducted instead.
15 November 2013	CT guided biopsy of a right lung mass was performed. Dr Smee informed the applicant that his condition may be terminal.
18 November 2013	Associate Professor Robert Smee diagnosed the applicant with stage IV (metastatic) pleomorphic spindle cell sarcoma. Alternatively described as Squamous Cell Carcinoma (SCC). In Dr Forstner's view, the appropriate diagnosis is a 'sarcoma and not a carcinoma'. This is a rare high grade sarcoma and, in Dr Forstner's opinion, spreads quickly to the lungs.
19 November 2013	Discharged from Prince of Wales Hospital.
26 November 2013	Assessed by Dr Simonelli, a psychiatrist, who noted the applicant was 'distressed' and 'devastated' by the spread of the cancer.
2 December 2013	The applicant received further surgery and had the left facial skin lesion removed together with 32 lymph nodes in his neck.
9 December 2013	The applicant was readmitted to Long Bay Hospital.
22 January 2014	The applicant consulted with Dr Siobhan O'Neill, Senior Staff Specialist, Department of Medical Oncology at the Prince of Wales Hospital. The applicant was also prescribed Avanza 60mg by a psychiatrist for his depression.
26 January 2014	The applicant collapsed from an unknown cause.
2 February 2014	The applicant had a Portacath inserted in his chest.
3 February 2014	Chemotherapy commenced and was to continue every three weeks.
9 February 2014	The applicant developed a Golden Staph infection from the Portacath and was hospitalised for two weeks.
18 February 2014	Dr O'Neill confirms the diagnosis and estimated the applicant's life expectancy could range from a few months up to around two years (Dr Forstner disagrees. In his view, survival is usually less than 9 months for a cancer of this kind). A PICC line is inserted into the applicant.
26 February 2014	Dr Lewis, in his capacity as the applicant's treating medical oncologist, wrote to Dr Kershaw (of the Medical Surgical Unit of Long Bay Jail) to confirm the diagnosis. He estimated the applicant had 6-12 months to live.
4 March 2014	Dr Lewis wrote to Dr Kershaw again and described the applicant as 'well' and having regained lost weight.
10 April 2014	Dr Lewis wrote to Dr Kershaw again and noted: ● the applicant had made a full recovery from his Golden Staph infection; ● '[t]here is no evidence of recurrence over the previously resected left cheek lesion or in the left neck. His lungs are clear to auscultation'; ● several lung metastases 'have definitely reduced in size' but a 'solitary metastasis in the right lung has increased slightly by about 2mm'; ● there was 'no evidence of any new lung metastases and no evidence of metastatic disease outside of the chest'; ● the applicant's left lung lower lobe consolidation has been completely resolved. These results were 'better than [Dr Lewis] had expected'.
15 April 2014	Dr Lewis wrote to the applicant's legal representatives and confirmed his estimate that the applicant had 6-12 months to live.
24 April 2014	The applicant made an application for early release to parole under s 160 of the Crimes (Administration of Sentences) Act 1999.
28 April 2014	The applicant's psychological report was updated by Laura Durkin, Forensic Psychologist, for the purposes of the appeal (see Schedule 2 to this judgment).
30 April 2014	The psychiatric report of Dr Richard Furst, Consultant Forensic Psychiatrist, diagnosed the applicant with: 1. substance use disorder (opiate and amphetamine dependence); 2. depression secondary to a general medical condition (cancer); 3. chronic pain disorder; and 4. personality deferred, likely antisocial traits. (see Schedule 2 to this judgment)
15 May 2014	In Dr Forstner's initial report, he states that 'the tumour is not very responsive to treatment and [the applicant's] survival is likely to be months'. He concluded that the applicant's 'care by justice health was reasonable but there was a significant delay [in arranging for] biopsy and definitive diagnosis....however, the greater reason for his poor prognosis was the aggressive nature of the tumour'.
10 June 2014	In Dr Forstner's supplementary report, he states that 'there is only one lump on the cheek that has been referred to and this is entirely consistent with it being the primary cancer'. This opinion is based on three reasons: 1. There is no other primary site identified. 2. That region of the left cheek contains very few lymph nodes and hence it is a highly unusual area to develop metastatic lymphadenopathy. 3. Multiple different nursing and medical reviews document the lesion as being consistently on the left side of the face, suggesting that it was a single continuously present lesion. Dr Forstner states that, 'on the balance of probabilities the sarcoma was present prior to 13th May 2013'.
15 July 2014	The State Parole Authority refused the application for parole.
28 August 2014	Professor Lewis wrote to Ms Fisher, Nurse Manager at Long Bay Jail, with concerns that his previous correspondence to them was not received. Prof Lewis recommends the applicant receives palliative radiotherapy for the right lung dominant metastasis.
17 September 2014	Prof Lewis emails the applicant's legal representatives and estimates the applicant has 4-6 months left to live.
6 October 2014	Expiration of the sentence imposed in 2006.
7 November 2017	Non-parole period imposed in May 2013 will expire.
7 November 2019	Sentence will expire.