Hoang v R

[2020] NSWCCA 324

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hoang v R [2020] NSWCCA 324

Hearing dates:

18 September 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Before:

Payne JA; Beech-Jones J; Fagan J

Decision:

(1) Time for filing the application for leave to appeal is enlarged so far as necessary to permit the application to proceed.

(2) Leave to appeal granted.

(3) Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against sentence – supply prohibited drug – deal with proceeds of crime – participate in criminal group – fresh evidence of health and treatment in custody – applicant 67 year old woman – principle of totality given effect in aggregate sentence imposed – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Agnew (a pseudonym) v R [2018] NSWCCA 128

Iglesias v R [2006] NSWCCA 261

Khoury v R [2011] NSWCCA 118

R v Bailey (1988) 35 A Crim R 458

R v Munday [1981] 2 NSWLR 177

R v Smith (1987) 44 SASR 587; 27 A Crim R 315

Springer v R [2007] NSWCCA 289; 177 A Crim R 13

Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402

Category:

Principal judgment

Parties:

Thi Hoa Hoang (applicant)
Regina (respondent)

Representation:

Counsel:
S Buchen SC with E Sullivan (applicant)
G Newton (respondent)

Solicitors:
Korn MacDougall Legal Pty Ltd (applicant)
The Solicitor for the Director of Public Prosecutions (respondent)

File Number(s):

2015/113876

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 February 2018

Before:

Buscombe DCJ

File Number(s):

2015/113876

Judgment

1. THE COURT: The applicant seeks leave to appeal against a sentence passed on her in the District Court by Buscombe DCJ on 2 February 2018. She was sentenced for the following offences upon pleading guilty to each matter:

1. Between 1 and 4 February 2015, supply a prohibited drug in an amount not less than the large commercial quantity (methyl amphetamine, 1.0946kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty life imprisonment, standard non-parole period 15 years.

2. Between 25 and 28 November 2014, deal with the proceeds of crime ($200,000) knowing that it was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW). Maximum penalty 15 years imprisonment, no standard non-parole period.

3. Between 23 September 2014 and 17 April 2015, participate in a criminal group by directing the activities of the group, knowing that it was a group and that her participation contributed to the occurrence of criminal activity, contrary to s 93T(1A) of the Crimes Act. Maximum penalty 10 years imprisonment, no standard non-parole period.

2. On count 1 his Honour took into consideration pursuant to s 35 of the Crimes (Sentencing Procedure) Act 1999 (NSW) the following offence on a Form 1: Between 10 and 13 November 2014, supply one ounce of methamphetamine (indictable quantity) contrary to s 25(1) of the Drug Misuse and Trafficking Act (maximum penalty 15 years).

3. On count 2 his Honour took into consideration the following offence on another Form 1: On 13 November 2014, deal with $38,700 cash being the proceeds of crime, namely, sale of prohibited drugs, contrary to s 193B(2) of the Crimes Act (maximum penalty 15 years).

4. The applicant was arrested on the above charges on 16 April 2015. The sentence was backdated to commence on that date. His Honour nominated indicative sentences, allowing a 15% discount for the applicant’s late pleas of guilty, and imposed an aggregate sentence, as follows:

Count 1:   indicative sentence of 10 years and 6 months with a non-parole period of 7 years and 4 months.

Count 2:   indicative sentence of 3 years.

Count 3:   indicative sentence of 4 years.

Aggregate   13 years imprisonment commencing on 16 April 2015 and expiring on 15 April 2028 with a non-parole period of 9 years expiring on 15 April 2024.

Grounds

5. The applicant requires an extension of time which is not opposed. Leave will be granted to the extent necessary to overcome the late filing. The grounds of appeal for which leave is sought are as follows:

1   The applicant’s sentence should be reduced having regard to the fresh evidence regarding her poor health and inadequate treatment in custody.

2   The learned sentencing judge failed to give effect to the principle of totality in the aggregate sentence imposed.

The agreed facts of the offences

6. In September 2014 police identified the applicant as the head of a syndicate supplying prohibited drugs in Sydney and Perth. On 9 November 2014 she and a male co-offender, Ba Vu, travelled to Perth to meet a potential customer. On 11 November 2014 a meeting took place and the potential customer purchased one ounce of methamphetamine (first Form 1 offence). This supply was followed by an exchange of text messages between the applicant and the customer about the possibility of a larger supply.

7. On 13 November 2014 the applicant phoned an associate in Vietnam to arrange an importation of drugs into Australia. On the same day the applicant requested a female associate, Hai, to attend the applicant’s home at Millers Point to collect money. Hai and two other females duly attended, after which they drove to Parramatta and made four separate deposits each of under $10,000 into a particular account. The total amount deposited was $38,700 which had been derived from the sale of drugs (second Form 1 offence).

8. On 26 and 27 November 2014 the applicant made a series of telephone calls to her son and to a female, Mai, to arrange the transfer of $200,000, derived from drug sales, to the applicant’s bank account. On 26 November 2014 $100,000 was transferred in and the second $100,000 was credited on 27 November 2014 (count 2).

9. The principal offence, count 1, was committed between 1 and 2 February 2015. The applicant made arrangements to meet with a supplier in Lidcombe to purchase methamphetamine. On 2 February 2015 she drove to Lidcombe with a male associate and received delivery of a quantity of the drug, which they took back to the applicant’s residence. Later that day the applicant requested Ba Vu to attend her home as she had work for him to do. He arrived with another male co-offender, Fang. The applicant discussed the quality of the drug with these two and said she expected to sell it in Perth for $240,000. Ba Vu and Fang departed from the applicant’s residence but returned the next day. They left from there, in a taxi, for the airport where they were arrested. Each of two suit cases in the boot of the taxi contained a vacuum sealed bag of methamphetamine wrapped in Gladwrap and carbon. The total quantity was 1.0946kg with a purity of 79%.

10. The facts of count 3 comprise the matters already referred to in relation to counts 1 and 2, together with dealings and communications on 27 and 28 November 2014 between the applicant, a woman named Hoa who was an illegal money remitter and an unknown male to whom the applicant owed money in connection with drug transactions.

Ground 1 – fresh evidence of health and treatment in custody

Medical evidence in the sentence proceedings

11. In the sentence proceedings the applicant’s counsel read an affidavit affirmed by her son on 15 January 2018, in which he deposed that she suffers from a long-standing heart condition and diabetes type 2. As is commonly known, diabetes is a disorder in which the body does not adequately absorb glucose from the blood stream, resulting in elevated blood glucose levels (hyperglycaemia), generally treated with injections of insulin to promote absorption and balance the blood levels. The son deposed that the applicant was “subject to ongoing health complications”, requiring regular consultations with general practitioners and specialists and frequent tests and observations. He set out a short chronology of this medical history up to the date of arrest. The main entries are paraphrased as follows:

20 April 2007: cardiologist Dr Patel reported “vascular risk factors are worrying and include long-standing hypertension over the last 5 years” and “her family history is significant for that of a son who collapsed and died suddenly at the age of 13”.

4 May 2007: the cardiologist noted “concerning vascular risk factors as well as potentially serious cardiac symptoms, and needs appropriate cardiac follow-up”.

22 June 2007: cardiologist noted the early death of her son raised “the possibility of an inherited gene defect for sudden cardiac death”.

19 February 2008: a general practitioner recorded dizziness and unstable high blood pressure.

26 March 2008: the general practitioner recorded “numbness/weakness of arm and slurred speech - taken by ambulance ”.

4 October 2011: the general practitioner recorded that the applicant was discharged after hospitalisation for a stroke.

2 February 2012: the general practitioner noted the applicant’s discharge after hospitalisation the previous week for a stent, having had four stents in 2004 and two in 2011

26 January 2014: episode of atrial fibrillation, attendance at hospital with chest pain.

1 July 2014: general practitioner noted “palpitations, waiting to see her cardiologist next 2 weeks”.

12. By the date of the sentence proceedings the applicant had been on remand for 2 years and 10 months. The son’s affidavit included a recitation of information that he had gleaned from Justice Health records in respect of the applicant’s medical condition and treatment in custody during her remand. There was tendered on behalf of the applicant a chronology drawn from the records. The following is a paraphrase of the events in this second chronology:

16.04.2015   En route to prison the applicant was examined at St Vincent’s Hospital Emergency Department due to irregular heartbeat. This was controlled with medication and she was discharged on 17.04.15 “with a discharge plan to include medication and a follow-up appointment”

24.04.15   the applicant was taken by ambulance from prison to Auburn Hospital with chest pain. “No further pain upon admission”. She was discharged on 25.04.15

15.11.15   The applicant attended the prison clinic feeling “faint and dizzy”. On the same day: “Emergency response to cell. Found lying down. Taken to clinic and administered insulin”.

19.11.15   “Emergency response to cell. Found lying down. Taken to clinic and administered insulin”.

28.01.17   “Emergency response … oxygen was administered”. Medication was administered for hypoglycaemia. The applicant was monitored and taken to the clinic.

24.03.17   The applicant was “found awake but unresponsive”. She was taken to the clinic.

7.05.17   The applicant’s cellmate reported finding her on the floor of the cell having wet the bed, unable to move or speak. This was recorded as “hypo episode”, apparently referring to hypoglycaemia. The applicant was reviewed in the clinic.

9.05.17   Hypoglycaemic episode.

11.05.17   Hypoglycaemic episode.

21.12.17   The applicant was taken to Westmead Hospital emergency department by ambulance. She was discharged next day with a recommendation for a reduction of frequency and dose of anti-hyperglycaemic medication. A cardiologist reviewed her “with consideration of titrating anti-hypertensives”.

3.01.18   The applicant collapsed in prison and was taken to Westmead Hospital emergency department. [It was agreed before the sentencing judge that the applicant was admitted at 11:30am on this day; she was discharged at 9:32pm and returned to custody].

13. The only medical practitioner from whom evidence was adduced on the applicant’s behalf in the sentence proceedings was Dr Tim Watson-Munro, a forensic psychiatrist. After providing one report on psychiatric issues, he was asked to review the Justice Health records and to provide a supplementary report. His supplementary report recited much of the above information. Dr Watson-Munro is not specialised in either cardiology or endocrinology and did not purport to express opinions in those fields based on the above data.

14. The applicant was born in 1953. It was common ground in the sentence proceedings that she has very little English. For practical purposes, including for medical consultations, she requires a Vietnamese interpreter. The above medical history commences at 2007, when the applicant’s hypertension and serious cardiac symptoms were already long-standing. In 2007 she was 54. She was 62 at the date of her arrest and 65 when sentence was passed. She is now 67.

15. The learned sentencing judge paraphrased the above evidence at length in his remarks on sentence, followed by these observations:

The medical records that are before me suggest that the offender has a significant heart condition and a diabetic condition. The full extent of both conditions cannot be determined on the material before me. The records suggest that her diabetes is not properly under control, given the number of collapses and the need for insulin to be provided.

Of course, it is the responsibility of the Department of Corrective Services, in accordance with its duty of care, to ensure that the offender receives appropriate medical treatment. There were some criticisms advanced on behalf of the offender of the treatment provided on the basis of the medical records. The records, in my opinion, however, show that Corrective Services have regularly provided the offender with medical treatment, and on a number of occasions, at facilities outside the prison environment.

I accept that the ability to treat the offender appropriately is no doubt on occasions hampered by her lack of English, as is no doubt the ability of the offender to know what treatment is being administered. The point was made in submissions that the medical records from Justice Health do not record the presence of a Vietnamese interpreter when the offender has been taken to the clinic within the jail or hospital.

Given the offender’s age, lack of English, and her medical conditions, I consider that her time in custody is likely to be more onerous than it is for a prisoner without such medical conditions. In making that finding I have not lost sight of the fact that it is the obligation of Corrective Services to provide the appropriate level of care to the offender while in jail, however the necessary rigidity of the prison system is also acknowledged in the making of that finding.

Principles for appellate intervention on fresh medical evidence

16. The applicant has tendered provisionally the medical evidence that she submits is fresh and upon which it is contended that the Court should intervene and resentence her. The evidence must be considered by the Court on a provisional basis in order to assess the following:

1. whether it is truly “fresh”, that is, evidence that was undiscoverable at the date of the sentence proceedings and could not have been adduced at that time and that is capable of affecting the outcome;

2. if so, whether the Court should act upon the evidence by way of exception to the general principle that the Court’s appellate function restricts it to a review of the sentencing decision on the basis of the facts as they existed when sentence was passed and

3. whether the evidence or any part of it is merely “new evidence”, that is, evidence that could with reasonable diligence have been adduced before the sentencing judge but was not so adduced.

17. Any part of the medical evidence tendered by the applicant that is truly “fresh” can only form a basis for intervening if the applicant can bring her case within an exception to the constraints upon sentence appeals to this Court. The nature of such an appeal was described in R v Munday [1981] 2 NSWLR 177 by Street CJ (Moffitt P and Lee J agreeing):

It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court.

18. In the Court of Criminal Appeal of South Australia, where a sentence appeal is of the same nature as in New South Wales, the above principle was recognised (without citation of R v Munday) in R v Smith (1987) 44 SASR 587 at 588; 27 A Crim R 315 at 316, but was qualified. The offender in that case had been diagnosed with antibodies to the AIDS virus six months before he was sentenced. On application for leave to appeal evidence was given that he had the potential to progress “to a disease stage” if he should be “subjected to any extended period of stress”. This was accepted as fresh evidence. King CJ (Cox and O’Loughlin JJ agreeing) said this (citations omitted):

The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him. […] While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the applicant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. […] I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the appellant was in when he was sentenced. The evidence which proves the occurrence of those events and which bears generally upon the extent and implications of the AIDS condition for which the appellant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal.

19. In Khoury v R [2011] NSWCCA 118 Simpson J (as her Honour then was) gave detailed consideration to the principle explained in R v Munday. By the date of her Honour’s judgment in Khoury v R that principle had been significantly qualified. Simpson J identified the constraint upon adducing fresh evidence in sentence appeals, as follows, before addressing the exceptions:

[109] It may be thought that […] evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both critera [ie, undiscoverable at first instance and capable of having affected the outcome]. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The powers of the Court are spelled out in s 6(3) which is in the following terms:

6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

[110]   A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday.

20. At [114]-[115] Simpson J referred to examples of post-sentence events of which fresh evidence has been admitted and acted upon notwithstanding the restriction identified in R v Munday. One example that her Honour cited was evidence of offenders’ medical status and treatment after sentence. Her Honour referred to Springer v R [2007] NSWCCA 289; 177 A Crim R 13, where assistance provided to authorities seemed to be of little utility when sentence was passed and fresh evidence was admitted on appeal to show that it had become very valuable and productive as a result of subsequent developments. In Springer v R at [3] McClellan CJ at CL had listed a number of other instances.

21. Since 1981 the fundamental limitation of sentence appeals, as enunciated in R v Munday, has been eroded for reasons explained by Basten JA in Agnew (a pseudonym) v R [2018] NSWCCA 128 in the following paragraphs:

[39]   The potential inflexibility of [the] approach [explained in R v Munday] has been ameliorated in various respects over the years, as demonstrated by the examples cited in Springer v R. In JM v R [2008] NSWCCA 254 at [26] Simpson J noted that “the authorities draw a distinction, not always clearly, between events or circumstances that did not exist at, or that post-date, sentencing, and events or circumstances relevant to, and casting new light on, circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing”.

[40]   In circumstances where the statute [ie the Criminal Appeal Act 1912 (NSW)] does not mandate a particular approach, a degree of flexibility is to be preferred. When Munday was decided, the role of the executive in releasing prisoners was well accepted and involved various forms. These included allowing early release by way of remission for a range of matters, including royal visits and industrial action by prison officers. Further, prisoners sentenced to life imprisonment were eligible for release on licence, at the behest of the executive. These practices have gone and there is now a culture which is antithetical to interference by the executive with respect to sentences imposed by courts. Accepting that such an attitude is not inappropriate, one consequence may be, pragmatically, to encourage appellate courts to take greater account of post-sentence events than had previously occurred.

22. Specifically with respect to fresh medical evidence, in Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402 at [65] Beech-Jones J cited the passage quoted above from R v Smith. With the agreement of the other members of the Court, Beech-Jones J said this (some citations omitted):

[66]   Three examples of the application of this principle [in R v Smith] are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (eg HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261; see Springer v R at [3] per McClellan CJ at CL). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer v R).

Medical evidence received provisionally on this application

23. The medical evidence tendered by the applicant includes a selection of primary health and treatment records extracted from 708 pages that were subpoenaed for the purposes of the appeal from the applicant’s file with Justice Health and from three hospitals, namely, Nepean, St John of God Hawkesbury and Westmead. In addition the applicant has tendered two reports of Associate Professor (Dr) Viardot, an endocrinologist, dated 22 November 2019 and 2 July 2020. The doctor’s academic standing is acknowledged but he will be referred to in these reason as “Dr”, for brevity. The records reviewed by Dr Viardot include the medical history of the applicant prior to her arrest, as well as the Justice Health and Hospital records of her condition and treatment since April 2015.

24. Dr Viardot’s reports are concerned, first, with the applicant’s diabetes. At times the insulin administered to the applicant has caused excessively low blood glucose (hypoglycaemia) and recalibration has been required. Secondly, Dr Viardot’s reports address complications of the applicant’s diabetes, namely, diabetic retinopathy (damaged to the blood vessels of light sensitive tissue at the back of the eyes) and diabetic nephropathy (damage to the kidneys caused by high blood glucose levels that results in leakage of protein into the urine, known as proteinuria). Finally, the reports provide a medical history, both from before the applicant’s arrest and since, with respect to her cardiac disorder, peripheral artery disease, dyslipidaemia (abnormal levels of triglycerides and/or cholesterol in the blood), dental complications, and anaemia.

25. Having regard to the legal principles limiting the permissible use of medical evidence tendered on this application, Dr Viardot’s reports may best be considered in stages, commencing with his evidence of the applicant’s medical history up to 2 February 2018 when she was sentenced, followed by events and developments in the applicant’s medical condition post-sentence and lastly the doctor’s opinion on the appropriateness of the treatment administered in custody to date and his view of her requirements for future medical care.

26. With respect to the period prior to sentence, Dr Viardot’s reports contain the following:

• Diabetes: The applicant had suffered this disorder for 20 years (since 1999, at age 46). Her average blood glucose level over the three months to May 2015, around the time of her arrest, was high “suggesting uncontrolled diabetes”. Further blood tests performed on 3 January 2018, one month before sentence was passed, were much lower “suggesting an excellent diabetes control”.

• Diabetes complications: Dr Viardot suspects that the applicant may have diabetic retinopathy. He bases this upon her having had laser treatment of her eyes not long before her arrest. She does not appear to have suffered diabetic nephropathy up to the date of arrest: her kidney function was normal on 20 May 2015. However by 21 December 2017 a test of her kidney filtration rate showed a decline in function.

• Cardiology: Dr Viardot says that the applicant suffers ischaemic heart disease (reduced blood supply to the heart muscle) and, while he does not record a date of onset of this condition, it is implicit in his report that it was present before 2011. The doctor states that in or about 2011 the applicant suffered a myocardial infarction (heart attack, caused by abrupt loss of blood supply to the heart muscle) and in 2011 and 2012 she had stents inserted (to open restricted arteries).

• Vascular disorders: Dr Viardot noted in his report of 22 November 2019 that the applicant had a cerebrovascular stroke “about six years ago” (2013) and that this led to a left sided residual hemiparesis (weakness of one side of the body). She has had peripheral artery disease since at least 2012 and had an external iliac artery repair in that year.

27. Dr Viardot provided the following assessment of the applicant’s medical status post-sentence, up to the date of his second report of 2 July 2020:

• Diabetes: The applicant was treated by Justice Health with Lantus insulin, 10 units daily, until about February 2019 and was hypoglycaemic at the end of that month. The insulin was then ceased and she was treated thereafter with oral medications. As at 22 November 2019 Dr Viardot considered that the applicant’s “diabetes control seems to be sufficient at the moment” and she had “no recent hypoglycaemias since her Lantus [insulin] was stopped back in February [2019]”.

• Diabetes complications: The applicant reported to Dr Viardot that she suffers blurry vision, which he regards as another indication that she may have diabetic retinopathy. He concluded from a blood test carried out on 31 August 2019 that the applicant had reduced kidney function and proteinuria, “highly suggestive of diabetic nephropathy”. She has been medicated for this but the medication had to be stopped due to a hypotensive episode.

• Cardiology: The applicant suffered a non-ST segment elevation myocardial infarction (“NSTEMI”) in January 2019; that is, a partial blockage of blood supply to the heart muscle. She has persisting unstable angina (chest pain due to reduced blood supply to the heart) that has led to multiple hospital admissions in 2019. Dr Viardot says that the applicant currently suffers paroxysmal atrial fibrillation (rapid erratic heart rate that commences suddenly and stops of its own accord after hours or days), hypertension and dyslipidaemia, all of which are cardiovascular risk factors.

• Mobility: Dr Viardot says that the applicant complains she is not able to walk by herself and needs help to get on her feet. He was not able to assess whether she has any current claudication (compromised blood flow to the extremities).

• Dentition and diet: The applicant informed the doctor that she had lost most of her teeth and that she does not tolerate well the denture that has been made for her during custody. She told Dr Viardot that the discomfort of the denture restricts her to soft food and she said that her weight had reduced from 63kg to 51kg in the year to November 2019. The applicant exhibited iron deficiency in blood tests carried out on 27 August 2019 and 6 December 2019. Dr Viardot is unable to say whether this is nutritional.

28. Dr Viardot made these observations on the adequacy of the applicant’s medical care in custody:

• Diabetes: “Her diabetes is currently well controlled, documented with [a blood glucose test result] on 6 December 2019. There are no more hypoglycaemias occurring since the insulin treatment was stopped in February 2019.”

• Diabetes complications: In Dr Viardot’s opinion “previously insufficient diabetes control will definitely have contributed to her multiple diabetes complications” as at November 2019. As noted at [26] above, he found that blood glucose levels around the time of the applicant’s arrest suggested “uncontrolled diabetes”, indicating poor medication management from before the commencement of the remand. Although the doctor refers to instances of hypoglycaemia in custody and adjustments to medication that have been necessary in order to correct this, he makes no suggestion that Justice Health’s management of the condition has fallen short of reasonable medical standards. On the contrary, in this respect she appears to have been much better cared for in custody than when she was managing the medication herself prior to arrest. The only additional aspect of treatment recommended by Dr Viardot with respect to the complications of diabetes is that the applicant should see an ophthalmologist to check whether she has diabetic retinopathy and whether it is progressing.

• Cardiology: Dr Viardot does not suggest that there has been any deficiency in the monitoring, management or treatment of the applicant’s cardiovascular disorders. He records that she is already seeing a cardiologist regularly.

• Mobility: The doctor makes no criticism of the attention paid by Justice Health to the plaintiff’s lack of mobility. She receives physiotherapy. He recommends that she should also be reviewed by a vascular specialist “to ensure that she has adequate blood flow in her legs” and by a podiatrist for “preventive foot care to avoid any foot ulcers”.

• Dentition and diet: Dr Viardot recommends that the applicant should be advised by a dietician familiar with the management of diabetes. This suggestion arises from his concern about the applicant’s weight loss. With respect to a recent manifestation of anaemia, he recommends an investigation to ascertain whether it is due to gastrointestinal blood loss.

Medical evidence tendered by the Crown on this application

29. In response to the reports of Dr Viardot the Crown tendered reports from Dr Jacques Ette, a Staff Specialist in Primary Care, within Justice Health Network, and Dr Gary Nicholls, the Clinical Director in Primary Care. From their own examination of Justice Health records the two doctors describe the applicant’s medical condition in terms that substantially accord with Dr Viardot’s summaries. Dr Ette states that “services available to those in custody are commensurate with those available to the wider community”. That appears to be borne out by the description, in all of the medical reports before the Court, of the medical care provided to the applicant. Further, Dr Ette states:

All the resources of the State’s public health system, including its Hospital inpatient, diagnostic, outpatient, allied health and public health services are available to the use of [Justice Health] Network at no cost to the patient, the Network or Corrective Services NSW.

30. Dr Nicholls states that the applicant has been provided with the services of an interpreter for cardiology and other specialist appointments and for a number of her appointments with Justice Health personnel where necessary. The Crown also tendered a letter from the Governor of the correctional centre in which the applicant is held. This confirms that the services of an interpreter are made available for medical consultations, to enable the applicant to maintain confidentiality, and that her other communications with Corrective Services staff are through her own basic English or with the assistance of other inmates.

Conclusion regarding the additional medical evidence

31. The substance of Dr Viardot’s evidence concerning the applicant’s medical history to the date of the sentence proceedings, summarised at [26] above, does not materially differ from what was provided to the learned sentencing judge through the son’s affidavit. The gravamen of the son’s evidence, which his Honour accepted and took into account, was that the applicant had for many years suffered from two chronic disorders: cardiac disease and diabetes. Significantly for sentencing purposes, it was apparent to his Honour that those disorders would require ongoing tests, medication and other management and treatment. In particular, the son’s chronological extracts from Justice Health’s records relating to the remand period identified difficulties in managing the applicant’s diabetes control medication. The extracts described the effects of hypoglycaemic events. To the extent that Dr Viardot’s reports contain any additional detail concerning the period up to the passing of sentence, that detail does not significantly qualify the picture that was presented to the learned judge.

32. Dr Viardot states that the applicant had received laser treatment for her eyes before her arrest and had exhibited decline in kidney function in December 2017. Those events were not in evidence before the sentencing judge. Dr Viardot considers that they may be indicative of damage caused by the diabetes. He also refers to left-sided weakness that he attributes to the applicant’s stroke, which Dr Viardot understood had occurred in 2013 but which took place in October 2011 according to the evidence before the sentencing judge. The residual left-sided weakness does not appear to have been referred to in the sentence proceedings. Such additional detail would have been readily discoverable at the time of the sentence proceedings and amounts merely to “new” evidence, according to the generally accepted classification. The applicant was represented in the District Court by experienced counsel. He evidently made what appears to the Court to have been, with respect, a sound judgment that the son’s affidavit amply informed his Honour of the medical circumstances so far as they could have a bearing upon the length of the sentence to be imposed.

33. Dr Viardot’s evidence of post-sentence events in the applicant’s medical history, summarised at [27], describes nothing more than continuing manifestations of the diabetes and heart disease that existed at the sentence date. Intermittent hypoglycaemic events since the sentence was passed, in some cases leading to collapse, and ongoing adjustment of medication are aspects of the diabetes that were known to Buscombe DCJ from the evidence of the applicant’s medical history during remand. Possible diabetic retinopathy and nephropathy are, if confirmed, further aspects of the same disease. Continuing angina and a myocardial infarction in January 2019 are incidents of heart disease; his Honour knew of the heart disease. Those further symptoms of cardiac disorder are consistent with the pre-sentence medical history that was given through the son’s affidavit, being a history of hypertension from at least 2002, family history of heart disease, vascular risk factors, atrial fibrillation and hospitalisation in 2004 and 2011 for stents and in 2014 for chest pain.

34. Some aspects of the applicant’s post-sentence medical history may be characterised as a decline in health. Such a decline was necessarily within the contemplation of the sentencing judge. At sentence, the applicant was known to be a 65-year-old woman who had been affected by two serious progressive disorders, diabetes and heart disease, since she was in her 40s. It would go without saying and would have been obvious to his Honour that her health would, in these and possibly in other respects, likely decline over the period of the sentence that he imposed.

35. The post-sentence medical events described by Dr Viardot do not provide an explanation of the extent, implications or significance of symptoms the applicant had at the sentence date but that were not then fully understood. The doctor’s post-sentence medical evidence regarding the applicant’s cardiac disease, diabetes and diabetes complications is not made admissible by the approach taken in R v Smith, R v Bailey (1988) 35 A Crim R 458 and Iglesias v R [2006] NSWCCA 261. Dr Viardot’s evidence concerning the applicant’s reduced mobility, problems with her dentition and possible anaemia is of purely post-sentence developments. Those developments throw no light upon her medical condition at the date of sentence and evidence of them cannot be accepted or acted upon in support of the application for leave to appeal.

36. Dr Viardot’s evidence of post-sentence medical treatment, summarised at [28], provides no support for the applicant’s argument that the standard of her care in custody has fallen short of an expectation on the part of the sentencing judge that formed a basis of his decision. His Honour’s expectation was expressly set out in his remarks, quoted at [15]. As discussed in the bullet points under [28] above, Dr Viardot’s reports do not show that the provision of care by Justice Health has been in any respect deficient. Insofar as Dr Viardot’s reports are tendered as fresh evidence of a shortfall in medical care, taken at their highest they do not prove such a shortfall and cannot, on that basis, be received and acted on by the Court in support of ground 1.

37. Dr Viardot makes specific suggestions for supplementation of the applicant’s care and his suggestions have been responded to in the reports of the two Justice Health doctors as follows:

• “She should see a number of specialists on a regular basis”: Dr Viardot acknowledges that the applicant is seeing a cardiologist regularly. Dr Ette says that she has been referred to a nephrologist for further advice and management concerning diabetic nephrology, while in the meantime her kidney function is monitored and has improved; the applicant’s weight loss is currently under investigation, her iron deficiency has been addressed with supplements and she will be referred to a gastroenterologist; she is on the waiting list to see an ophthalmologist with respect to investigating and monitoring possible diabetic retinopathy.

• The applicant should have “a review from a podiatrist to ensure she receives optimal preventive foot care to avoid any foot ulcers”. Dr Nicholls notes that to date there has been no “reported diabetic foot disease” but that the applicant is “regularly reviewed by Network staff and referral to podiatry can be made as necessary”. Dr Ette notes that there is no record of the applicant suffering a mobility disorder connected with her legs and that chronic back pain, which may affect mobility, is treated with physiotherapy.

• “Another concern is [the applicant’s] weight loss.” Dr Nicholls states that the starting point of 63kg referred to by Dr Viardot was documented by St Vincent’s Hospital on 28 November 2012. He says that for her height she was overweight at 63kg. The reduction to 51kg “is likely due to reduced dietary intake” and has resulted in her having “a normal healthy BMI (body mass index)”. Dr Ette’s report describes the careful attention that is paid by Corrective Services to providing a healthy diet for inmates.

38. For these reasons the Court rejects the additional evidence of the applicant’s medical status and treatment that was tendered in support of ground 1. Leave to appeal will be granted but ground 1 is unsupported and will be rejected.

Ground 2 – failure to give effect to the principle of totality

39. Ground 2 does not involve a contention that the aggregate sentence imposed by his Honour was manifestly excessive. The applicant’s written submissions expressly disclaim any such contention or a contention that any of the indicative sentences, if they could be considered separately, would be regarded as manifestly excessive. For the most serious offence, count 1, the indicative sentence was 10 years and 6 months. There was a notional accumulation of 2 years and 6 months for the other two offences. The complaint under this ground is, essentially, that the aggregate sentence involves too much notional accumulation, fails to allow sufficiently for overlap of criminality between the respective offences, results in a total sentence that exceeds a proper relationship to the totality of criminal conduct and is “crushing”.

40. It is apparent from the conversation between the applicant, Ba Vu and Fang on 2 February 2015 that the $240,000 expected to be derived from sale of the drugs concerned in count 1 had not yet been received at that date. The $200,000 that was the subject of count 2 was banked more than two months earlier. Count 2, therefore, concerns the proceeds of an entirely separate drug transaction from that which was comprehended in count 1. The second Form 1 offence, taken into consideration on count 2, concerned $38,700 from yet another drug sale, possibly the one ounce sample supplied by the applicant in Perth two days before this money was banked. Viewed in that light, counts 1 and 2, coupled with the additional dealings and communications of 27 and 28 November 2014 regarding money from drug transactions, covered a spread of activity in which, as acknowledged by the applicant’s plea of guilty to count 3, she directed the activities of a criminal group. The aggregate sentence was not a disproportionate penalty for the totality of this criminal activity. It is not crushing in any sense that is relevant to evaluation of the relationship between the sentence and the overall criminal conduct.

Orders

41. The orders of the Court will be:

1. Time for filing the application for leave to appeal is enlarged so far as necessary to permit the application to proceed.

2. Leave to appeal granted.

3. Appeal dismissed.

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Decision last updated: 14 December 2020