McInnes v The King

[2024] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McInnes v R [2024] NSWCCA 104

Hearing dates:

24 April 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Before:

Davies J at [1];
N Adams J at [2];
McNaughton J at [74].

Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - dishonestly obtaining financial advantage by deception - fresh evidence relied upon on appeal - heart condition - sentenced on expectation he wold receive particular level of medical care in custody - alleged failures by Justice Health - provision of medication - issues with heart transmission device - fresh evidence not indicative of a standard of medical care below expectation of sentencing judge - stable prognosis - appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Crimes Act 1900 (NSW), ss 178BA, 193E(1)(b)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

Betts v R (2016) 258 CLR 420; [2016] HCA 25

R v Keir [2004] NSWCCA 106

R v McInnes [2022] NSWDC 723

R v Smith (1987) 44 SASR 587

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

Category:

Principal judgment

Parties:

Paul McInnes (Applicant)(self-represented)
Crown (Respondent)

Representation:

Counsel:
E Wilkins SC (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2021/00277621

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

05 December 2022

Before:

Colefax SC DCJ

File Number(s):

2021/277621

JUDGMENT

1. DAVIES J: I agree with N Adams J.

2. N ADAMS J: On 7 July 2022, the applicant pleaded guilty in the Local Court to two counts of dishonestly obtaining a financial advantage by deception contrary to s 193E(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 10 years imprisonment. There is no applicable standard non-parole period. A further offence of dishonestly obtaining a financial advantage by deception contrary to the now repealed s 178BA of the Crimes Act was included on a Form 1. The charges followed the discovery that the applicant had defrauded his employer, Rheem Australia, of over $2 million over an eleven-year period from August 2007 to October 2018.

3. On 5 December 2022, Colefax SC DCJ sentenced the applicant in relation to these frauds to an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years commencing on that day. The applicant now seeks leave to appeal against that aggregate sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

4. The applicant was aged between 44 to 55 over the 11 years of his offending. By the time of this appeal, he was 60 years old. He was self-represented on his appeal and relied on the following sole ground of appeal:

“Failure by Corrective Services and Justice Health in adequately managing my health condition and treatment for my severe medical heart condition while in custody, despite the Judge in subjective facts on sentencing stating ‘The court was prepared to accept that the applicant had a heart condition; but that it could be satisfactorily dealt with in custody’. My condition has clearly not being [sic] managed correctly by the many serious errors by corrective services and justice health.”

Facts on sentence

5. The applicant was sentenced based on the Agreed Facts tendered at his proceedings on sentence. The sentencing Judge summarised the facts at [6]-[13] of the remarks on sentence as follows:

“[6] The offending involving sequences 1, 2 and 3 were all committed whilst you were a senior employee of Rheem Australia. You were relevantly the National Sales Manager or the General Manager, Sales.

[7] The offending took place over an 11 year period, from August 2007 to October 2018.

[8] The offending involved you making 53 individual fraud offences against your employer. The total amount of money that you (effectively) stole from your employer was a little over $2 million.

[9] The offending was carried out by a relatively sophisticated scheme whereby you submitted false invoices for services which were, in fact, never provided.

[10] The scheme went undetected for so long because of: the trust that was vested in you by your employer; and the senior level within the company that you occupied.

[11] It is agreed between you and the Crown that, of that very significant sum of money (a little over $2 million), some of it was misappropriated by you and directed in the following manner. Approximately $540,000 was used to carry out renovations to, and mortgage repayments for, your primary residence at Menai. An amount of almost $115,000 was used as a deposit and mortgage repayments for an investment property in Queensland. A little under $230,000 was used as a deposit and a mortgage repayments for a second investment property in Queensland. A little over $150,000 was used to buy a luxury boat. Almost $125,000 was used to buy a holiday home at Wiseman’s Ferry. In late December 2018, at about the time that you were made redundant with Rheem, an amount of a little over $400,000 was transferred to a bank account controlled solely by your then wife.

[12] Sequence 2 involves an amount of $889,350. Sequence 3 involves $795,300. And the matter on the form 1 involves $413,957.50. As I have said, the matter on the form 1 is to be taken into account with sequence 2. By having regard to the quantum of the amount, it will result in a meaningful increase in the sentence for that principal offence.

[13] You were arrested in relation to the offending on 29 September 2021.”

6. A report prepared by the external forensic accountant concluded that the total amount misappropriated by the applicant was $2,098,607.50.

Proceedings on sentence

7. The Crown tendered a bundle of documents including a Sentencing Assessment Report dated 18 October 2022 and a criminal history which recorded that this this was not the applicant’s first offending of this nature. He was sentenced to three years imprisonment in 1993 for making false statements with intent to obtain a financial advantage, corruptly receiving benefits, and attempting to obtain money by deception. His appeal to this Court against the severity of that sentence was unsuccessful. His only other two offences were driving with the mid-range PCA in 2000 and driving with the low range PCA in 2012.

8. The applicant tendered a character letter from his brother dated 16 November 2022 and two letters from his cardiologist Dr Bruce Walker dated 22 December 2015 and 4 May 2022. The applicant gave evidence at the proceedings on sentence.

Medical evidence on sentence

9. The sole issue on this appeal concerns the extent to which the applicant’s heart condition should ameliorate his sentence. This means that it is necessary to refer to the medical evidence that was before the sentencing Judge in some detail. The following medical history comes from evidence from the applicant, the applicant’s written submissions and the reports of Dr Walker.

10. On 16 December 2015, the applicant suffered a ventricular fibrillation arrest whilst shopping. He was successfully resuscitated at the scene and underwent surgery on 21 December 2015. A dual chamber implantable cardioverter-defibrillator (“ICD”) was implanted at that time. Following this procedure, the applicant’s condition remained “reasonably stable” until a subsequent episode of ventricular fibrillation in June 2016, which was treated through a 35J shock administered by the ICD.

11. After the June episode, the applicant was commenced on antiarrhythmic treatment that comprised twice daily dispensation of flecainide and metoprolol medication. In cross-examination, he accepted that he had not suffered any episodes of ventricular fibrillation since June 2016. His evidence was that he had experienced “some sort of arrhythmias” but he agreed that he had not experienced any subsequent episodes which required the ICD to shock his heart.

12. The applicant gave evidence about his external portable heart device which is configured to download data from his implanted ICD and communicate it to the applicant and his treating cardiologist at St Vincent’s Hospital. He described the purpose of this communication to St Vincent’s as being to permit his cardiologist’s team to adjust the ICD in line with the data received by the external monitor when necessary. He gave evidence that he needed to keep the external heart device monitor on his person, particularly at night as this was the time that the device downloaded most of its data.

13. The applicant expressed concern before the sentencing Judge that the prison officers did not have sufficient training to equip them to react quickly to his condition were he to suffer another episode. He stated that his heart device monitor would not work if he did not have access to his phone because of the need to maintain constant communication with St Vincent’s Hospital.

14. Dr Walker’s 2015 report recorded that whilst it was not possible to identify the exact cause of the applicant’s cardiac arrest, it appeared most likely that the applicant has a primary arrhythmia syndrome. That report was provided one day after a dual chamber ICD was implanted successfully.

15. Dr Walker’s 2022 report recorded normal left ventricular function, normal left ventricular wall thickness and normal other valves and chambers. The report noted that the applicant would require regular ECG and ICD monitoring with consultations to review his condition. Dr Walker estimated that the remaining battery life of the applicant's ICD sat at approximately 1.6 to 2.5 years. The applicant was advised to return to Dr Walker for regular biyearly catchups. Dr Walker also opined that the applicant’s medications (flecainide and metoprolol) had been “very effective” at preventing further episodes.

The applicant’s submissions on sentence

16. In written submissions, the applicant’s counsel submitted (at [5.7]):

“Enquiries with the treating cardiologist, Dr Bruce Walker, and senior medical officers within Justice Heath, have revealed that the offender’s condition can be adequately managed within the custodial environment. The Manager of Nursing Unit Operations at Justice Health has confirmed that nursing staff at the MRRC have been briefed on the offenders’ condition, and that he is likely to be marked as a ‘Patient of Concern’. Apparently, Justice health have the necessary technology to enable the daily download of the offender’s pacemaker.”

17. During oral submissions, the sentencing Judge referred to this paragraph of the written submissions and the following exchange took place with the Crown:

“HIS HONOUR: … Well, 5.7, I suppose, is an admission against interest, Mr Crown? Paragraph 5.7 is in fact evidence which at face value is not consistent with what the offender was trying to say in the witness box. But does the Crown accept that I can proceed on the basis of what is put in paragraph 5.7, or not?

[CROWN]: Your Honour, with the abundance of respect to all, [applicant’s counsel] [is] an experienced counsel—

HIS HONOUR: If you’re saying you accept?

[CROWN]: I accept what he says.

HIS HONOUR: What [applicant’s counsel] has written?

[CROWN]: I don’t have any information to the contrary, your Honour.

HIS HONOUR: Then you’re saying I can accept what [applicant’s counsel] has said, in the sense that it is, in effect, an admission against interest?

[CROWN]: Yes, your Honour.”

Remarks on sentence

18. Given the narrow issue in dispute, it is not necessary to summarise the sentencing reasons in detail; it is reported on Caselaw as: R v McInnes [2022] NSWDC 723. Colefax SC DCJ found that the objective seriousness of each of the principal offences were above the mid-range for an offence of their kind, and that it was difficult to assess the applicant’s prospect of rehabilitation given that there was no clear explanation, other than greed, for his actions. His Honour was not satisfied that the applicant was remorseful.

19. Relevantly to the sole complaint in this appeal, the sentencing Judge noted the following in relation to the medical evidence at [25]:

“It is said by you (a person with a history of dishonesty) that you have a heart condition. I am prepared to accept that on the balance of probabilities, not least because I have some evidence from Dr Walker (a treating cardiologist) that you do have some form of heart condition. But I do now know from your counsel’s helpful written submissions that, whatever that condition is, contrary to the impression you tried to convey in the witness box, it can, in fact, be satisfactorily dealt with in custody.”

20. The sentencing Judge made a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) on a number of grounds which included the applicant’s heart condition and varied the ratio between the non-parole period and the head sentence such that he was only required to serve 57% of the sentence in custody. The discount of 25% for the early pleas of guilty was applied to the indictive sentences. The indicative sentence for the sequence 2 offence, which included the Form 1 offence (formerly sequence 1), was 5 years and 3 months imprisonment. The indicative sentence for the sequence 3 offence was 4 years and 6 months imprisonment.

The evidence on appeal

21. The applicant relied on his affidavit sworn on 15 February 2024 in support of his sole ground of appeal. In that affidavit, he made a number of complaints over a range of topics. He did not annex any documentation from Justice Health; rather, he annexed a schedule he had prepared himself from his own observations.

22. The Crown filed an affidavit of Yeabee Kim, DPP solicitor, sworn on 15 April 2024, in response to the allegations made by the applicant. Numerous Justice Health reports were annexed to that affidavit which contradicted most of the applicant’s allegations. Given the large volume of Justice Health records generated in relation to the applicant, the annexures were limited to documents directly contradicting the specific allegations made by the applicant in his affidavit.

23. After the applicant was served with Ms Kim’s affidavit, he prepared an (unsworn) affidavit in reply dated 18 April 2024. He deposed that it was true at the commencement of the hearing. Annexed to this affidavit was a photocopy of an empty plastic bag (to show his medication was not given to him one day) and two Medtronic document texts from 21 and 28 July 2023. A significant portion of the applicant’s second affidavit comprised submissions rather than evidence.

24. At the hearing, the Crown submitted that, assuming the court were to accept the fresh evidence of the applicant on a provisional basis for the purpose of ascertaining its admissibility, the Crown would rely on its affidavit in reply. The Crown submitted that portions of the applicant’s affidavit expressing the applicant’s belief should be taken as submissions.

25. Significantly, the Crown also noted that the applicant had referred in his second affidavit to numerous Justice Heath records that were not otherwise before the court. It was ultimately agreed that the Crown should tender further material from the Justice Health files in response to the applicant’s affidavit dated 18 April 2024. That material was marked as an exhibit on the appeal and comprised email correspondence with Mr Darren Barlow from Geoffrey Pearce Correctional Centre dated 27 March 2024, email correspondence with Ms Alysha Bock from the Mary Wade Correctional Centre dated 10 April 2024, email correspondence with Ms Bernadette Cases from Metropolitan Remand and Reception Centre dated 9 April, and further Justice Health materials. The Crown also produced screening notes from Justice Health from 10, 12 and 17 December 2022. Significantly, the Justice Health records also included two further reports from Dr Walker dated 13 February 2024 and 15 August 2023.

26. At the hearing of the appeal, the Crown also briefly cross-examined Mr McInnes on some of his allegations.

The factual disputes

27. The nub of the applicant’s complaint is that contrary to the sentencing Judge’s expectation Justice Health has failed to provide “optimal or even adequate” treatment for his “severe medical condition”. The applicant submitted that this suboptimal level of care has caused him stress and anxiety. The applicant has been in custody in facilities in Parklea, Silverwater (Metropolitan Remand and Reception Centre (“MRRC”)), Windsor & Nowra. He provided a large number of examples where, it was submitted, his condition was inadequately managed by Justice Health.

28. The Crown, on the other hand, submitted that based on the available evidence, the applicant had not established that the sentencing Judge erred nor that the sentencing exercise miscarried. The Crown’s position was that the objective evidence supports the contention that the applicant’s health has been managed in custody.

29. Given the range of complaints made by the applicant, it is necessary to address the available evidence under a number of headings.

Medication

30. The applicant submitted that Justice Health staff across all facilities have failed to issue him with the correct medication in over 80 instances. He alleged that from 21 December 2022 to 29 December 2022 his medication was wrong or failed to be delivered. He complained that his flecainide tablet was not delivered to him for 16 consecutive days in December 2022, further causing him stress and anxiety.

31. The Crown submitted that the medical records annexed to the affidavit of Ms Kim show that with one or two exceptions the applicant was in fact given his medications on the dates the subject of his complaints. For example, in response to the applicant’s contention that he did not receive medication on 5 December 2022 (the day he first entered custody), the Crown tendered Justice Health material which indicated that the applicant was examined around 6:43pm that day by a nurse, Mr Paul Cooksley. Mr Cooksley’s screening notes detail how the applicant was offered replacement medication as his usual medication was not available, but this replacement medication was refused by the applicant.

32. As for the applicant’s contention that he did not receive medication on 6 December or the morning of 7 December, Justice Health records (the “regular medicine orders” form) indicate that he received the correct doses of both metoprolol and flecainide at 8:00am and 8:00pm on 6 December and at 8:00am on 7 December. Similarly, as for the applicant’s contention that he did not receive flecainide on 22 December 2022, he was transferred that day from Parklea to MRRC without his medication. The regular medicine orders form was initialled to confirm that the applicant was provided with the correct doses in the afternoon, though not in the morning.

33. As for the applicant’s contention that he did not receive flecainide for four days from 24 to 27 December 2022, the Crown submitted that the regular medicine orders form was initialled to confirm that the applicant did in fact receive the correct doses at 8:00am and 8:00pm on 24 and 27 December (having examined the relevant form, it is arguable that it records that he in fact received flecainide on all four days). As for the applicant’s contention that he did not receive either flecainide or metoprolol on the morning of 29 December 2022, the regular medicine orders form was initialled to confirm that the applicant received the correct doses at 8:00am.

34. As for the applicant’s contention that he did not receive either flecainide or metoprolol in the afternoon of 5 January 2023, the regular medicine orders form was initialled to confirm that the applicant received the correct doses of both metoprolol and flecainide.

35. The applicant contended that on 16 January 2023 he saw a nurse who was not aware of his medical condition and who provided him with medication without informing him of its contents. Justice Health records show that the applicant was examined by Mr Bradley Dopper at around 2:55pm. His notes record that the applicant had a “cardiac history” and that “daily medication [was] given as prescribed”. The regular medicine orders form was initialled to confirm that the applicant received the correct doses of both metoprolol and flecainide.

30. The applicant further contended that he did not receive flecainide on 17 January 2023 as he was informed it was out of stock. The regular medicine orders form was initialled to confirm that the applicant received the correct doses of both metoprolol and flecainide at 8:00am and 8:00pm. As for the applicant’s contention that he did not receive flecainide on 15 February 2023, the regular medicine orders form was initialled to confirm that the applicant received the correct dose of flecainide at 8:00am and 8:00pm. The Justice Health records note that the applicant saw a Dr Adam Gaudry on this date and complained about his medications, but no further detail is recorded.

31. Although the applicant contended that he received the wrong medication on 19 and 20 February 2023, no further information was provided as to what he received or if he asked a nurse for the correct medication. In any event, the regular medicine orders form was initialled on those days to confirm that the applicant received the correct doses of both metoprolol and flecainide at 8:00am and 8:00pm.

32. Contrary to the applicant’s contention that he did not receive any medication from 26 to 28 February due to being locked in, the regular medicine orders form was initialled to confirm the applicant received the correct doses of both metoprolol and flecainide at 8:00am and 8:00pm. As for the applicant’s contention that he did not receive any medication from 1 to 3 and 5 March 2023, the regular medicine orders form was initialled to confirm that the applicant received the correct doses of both metoprolol and flecainide at 8:00am and 8:00pm on these days.

33. In response to the Justice Health records contradicting his claims, the applicant submitted that the Crown had misinterpreted a large number of the markings on this form. He also submitted that some of the records inaccurately recorded the provision of medication contrary to the applicant’s recollection of these days that either no medication was provided to him, or he refused the medication provided to him such that the Justice Health records should have recorded his refusal.

34. I have considered the applicant’s complaints as against the contemporaneous records. I am not satisfied that the applicant’s complaints about his medication can be sustained.

Medical appointments

41. The applicant submitted that of the 16 times he requested to see the Justice Health doctor, only seven resulted in appointments. The applicant submits that this level of care is insufficient when one has regard to the seriousness of his heart issues.

42. The applicant submitted that on 12 April 2023 he missed a scheduled specialist cardiologist appointment because he was not informed of its existence by Corrective Services. The applicant submitted that on 19 April 2023 he again failed to attend a scheduled specialist cardiologist appointment.

43. When confronted with the Justice Health records, the applicant conceded that the 12 April 2023 appointment was cancelled by Dr Walker, contrary to his initial submission that he had missed the appointment due to failures of Justice Health staff to notify him and arrange his transport. However, the applicant nonetheless submitted that Justice Health failed in relation to this appointment in that they did not subsequently make any effort to reschedule the appointment.

44. In response, the Crown produced two letters of Dr Walker. It is relevant to extract them in full. On 15 August 2023, Dr Walker provided a letter to Dr Adam Gaudry at Justice Health that opined:

“Paul McInnes was consulted by Telehealth on 15 August 2023 regarding his defibrillator check. He has no cardiac symptoms and had not been aware of any ICD shocks. He remains on medical therapy with flecainide and metoprolol as well as magnesium and multivitamin supplement.

ICD check (Medtronic CareLink): AAIR/DDDR 70 to 130/min. The device has logged only one very short episode of non-sustained ventricular tachycardia on 12 May 2022 (2 s duration). There have been no arrhythmias logged in the last year. The lead parameters are stable and the battery is estimating 1.2 to 3 years remaining longevity.

His ICD check was very satisfactory and I suggest that we do another download via CareLink in six months followed by a short consultation. The ICD generator will need to be replaced in approximately 12 months.”

45. Dr Walker provided another letter on 13 February 2024 that opined:

“Paul McInnes was consulted by Telehealth on 13 February 2024 regarding his defibrillator check. He has been stable from a cardiac viewpoint. He is exercising regularly without any cardiac symptoms and has lost approximately 15 to 20 kg in weight.

Medication: Flecainide 50 mg bd, metoprolol 50 mg bd, magnesium 500 mg bd, multivitamin.

ICD Check (Medtronic CareLink): AAIR/DDDR 70 to 130 /min. He has not logged any atrial or ventricular arrhythmias. The lead parameters are stable and he is pacing 96% in the atrium and 2% in the ventricle. His rate histograms are satisfactory and the battery is estimating 11 to 20 months remaining longevity.

Paul is stable from a cardiac viewpoint and does not require any change in therapy. His arrhythmias are well controlled and he will be reviewed again by Telehealth in six months.”

46. I have considered the complaints about his medical appointments. I note that one of the Justice Health records notes that Mr McInnes is permitted to see Dr Walker in person, but he refuses to wear prison greens and thus the consultations are by Telehealth. Dr Walker only requires a checkup every six months. The applicant is permitted to be escorted to Dr Walker’s rooms every six months for this purpose or see him by Telehealth. I am not satisfied that he is being prevented from seeing the cardiologist of his choosing whilst in custody.

Heart transmission device

47. The applicant submitted that Corrective Services failed to provide his external portable heart transmission device (“external heart device”) to his cell for “important heart pacemaker/defibrillator transmission and updates” for a period of 26 consecutive days.

48. The applicant further submitted that whilst he was located at Nowra gaol, in the period from 7 March 2023 to 6 June 2023, his external device did not work, and the issue was not remedied by Justice Health despite the applicant informing various senior correctional officers and Justice Health staff on a daily basis. The applicant submitted that this 93 days without his heart monitor working precluded any reporting to St Vincent’s Hospital and the installation of key device updates.

49. The applicant also claimed that his external heart device has been stolen from his cell by inmates 19 times. The applicant submits that no action has been taken to prevent this from continuing and he has only been advised to manage the situation as best as he can.

50. In response to these complaints, the Crown submitted that the medical evidence tendered by the applicant, comprising solely of the reports from his treating cardiologist Dr Walker, does not support a contention that his condition is not being adequately treated in custody. Reliance was placed on the conclusions of Dr Walker that the implanted ICD and antiarrhythmic treatment have been effective at preventing further cardiac episodes, with no episodes since June 2016.

51. The Crown also submitted that the applicant’s contention that his external heart device did not work and that Justice Health failed to follow up on this issue is contradicted by the Justice Health screening notes created by the Nursing Unit Manager, Ms Amy Loveday, on 9, 20 and 29 March 2023 which confirm that she contacted Medtronic (the company monitoring the applicant’s ICD) who confirmed that the applicant’s ICD was operating correctly.

52. The Crown drew attention to further comments in Ms Loveday’s screening notes on 29 March 2023 where she detailed her communications with the cardiologist team at St Vincent’s clinic who confirmed that they could access the ICD data without the portable heart monitor and advised her that many patients did not use the monitor so it could be disconnected and “not worried about”. These screening notes record that Ms Loveday provided the applicant with this information at the time.

53. Overall, the Crown submitted that the applicant’s evidence about problems with his heart monitor device should be rejected as they are unsupported by contemporaneous records and the absence of any reports being made about the applicant’s heart monitor being stolen. The Crown also submitted that it was highly improbable that the device would, once stolen, be regularly returned to the applicant. The Crown submitted that these allegations are unsupported by any corroborative evidence.

54. In response to the Crown submissions that the Nursing Unit Manager, Ms Amy Loveday, had contacted Medtronic and confirmed the satisfactory operation of the ICD, the applicant submitted that whilst he did not dispute that Ms Loveday had contacted Medtronic, his submission was that she failed to determine if the ICD was working during the period that the applicant was at Nowra South Coast Correctional Centre. To this end, the applicant submitted that on 23 March he had contacted a family friend whilst in prison who informed him that the ICD had stopped recording on 5 March 2023. He also submitted that this same family friend, who was on the Medtronic emergency contact list, received text messages on 21 July 2023 and 28 July 2023 informing her that the applicant’s ICD had ceased reporting to the network. The applicant annexed screenshots of those text messages to his affidavit.

55. In response to the Crown submission that Ms Loveday had been informed that many patients do not use the monitor and that it can be disconnected without worry, the applicant submitted that Ms Loveday had clearly “misunderstood” the advice of the cardiologist received at St Vincent’s hospital. The applicant submitted that the cardiologist can only access the information from the device if the patient is present in his room “when he connects the heart device leads and recording mechanism over the patient’s heart where the implantable cardioverter-defibrillator is positioned”. The applicant submitted that the external portable monitor did not transmit any data from 5 March 2023 to 1 August 2023.

56. When cross-examined by the Crown at the hearing of this appeal , the applicant conceded that he had travelled overseas without the machine in the past but emphasised that he would not be worried if it was not sending messages back to his cardiologist if he was in the community; it is more stressful knowing that it might not work in custody where it is not possible to go to hospital quickly.

57. Having considered this material, there is some support for the suggestion that the portable external monitor was not working for some days. I shall return to the significance of that fact in my consideration below.

General complaints

58. The applicant submitted that he “buzzed up” five times on the medical emergency knock up button within his cells at both Parklea and MRCC, with no answer. The applicant submitted that he spoke to clinic nurses over 53 times at Parklea, MRRC, Windsor and Nowra regarding his medical concerns and no action was subsequently taken.

59. On 11 May 2023, the applicant lodged a complaint with the Health Complaints Line regarding his treatment whilst in custody for his heart condition. On 14 June 2023, the applicant lodged a complaint with the Ombudsman. The applicant submits that he has heard nothing further from either of those complaints.

60. Given the general nature of this aspect of his complaint and the large volume of Justice Health records generated in relation to the applicant, I am not satisfied that this discrete complaint further advances his case.

Consideration

61. Notwithstanding the general rule that parties are bound on appeal by their case as presented at first instance, this Court can in some circumstances receive new evidence where it is necessary to avoid a miscarriage of justice: Betts v R (2016) 258 CLR 420; [2016] HCA 25 at [10].

62. In Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [86], Beech-Jones J (as his Honour then was), Hoeben CJ at CL and Hamill J concurring, referred to the decision of King CJ in R v Smith (1987) 44 SASR 587 when his Honour observed at 588 that evidence can be admitted on appeal regarding events post-sentence if it explains the “full extent and implications” of a health condition which existed at the time of sentence to show its true significance. Beech-Jones J went on in Turkmani v R at [66] to provide three examples of the application of this principle 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 (e.g. 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 (‘Iglesias’); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) (‘Springer’). 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 id).”

63. The applicant does not seek to adduce medical evidence showing that his condition is worse than what the sentencing Judge was led to believe. The evidence of Dr Walker is that he is doing well. Rather, the applicant relies on the third example referred to by Beech-Jones J as it arose in R v Keir [2004] NSWCCA 106.

64. In R v Keir, the applicant was 79 years old and was sentenced in relation to social security fraud. He suffered from “a respiratory cripple with very poor lung function, shortness of breath, even without exertion, heart disease, hypertension, unstable diabetes and poor balance”. Significant expert evidence was placed before the sentencing court including that, “if adequate medical facilities were provided to the offender, he was at no greater risk in custody than if he continued to live in the community”. On this basis, her Honour imposed a term of full-time imprisonment but made a number of recommendations with the expectation that the offender would be taken directly by appropriate transport from the court room to the Long Bay Hospital where he would there be hospitalised and assessed and transferred to the Prince of Wales Hospital for as long as his condition remained life threatening. Instead, he was placed in maximum security, rather than in the hospital. His health declined such that he suffered a heart attack in the cells on the day of his appeal.

65. This Court observed (at [71]) that:

“Evidence of matters occurring subsequent to sentence is admissible however if it is capable of demonstrating that the very basis upon which the sentencing discretion was exercised has been undermined or thwarted. The exception is however strictly circumscribed and should generally be limited to cases of the kind to which we have referred.”

66. The court observed at [77] that it may have regard to such matters where the basis upon which the trial judge proceeded to sentence has effectively been undermined before concluding the following at [81]:

“In our view, in the light of the fresh evidence which the court has received and in the wholly exceptional circumstances of this case, this was a case that required this Court’s intervention in order that to ensure that the sentencing regime contemplated by the trial judge was not thwarted and to ensure that there was no injustice in the result.”

67. It was accepted by the Crown that, as a matter of principle, fresh evidence can be tendered in circumstances where an offender is sentenced on the expectation that they would receive a particular level of medical care and attention in custody but that does not subsequently occur. Rather, the Crown’s position was that the evidence does not support the applicant’s contention that he is receiving such a low standard of care that his sentence should be reduced further on that account.

68. The resolution of this appeal turns on a consideration of the Justice Health records, which I have already largely summarised above.

69. I accept the Crown submission that the “fresh” evidence relied upon by the applicant on this appeal does not establish that any alleged failures of Justice Health and correctional staff have had any adverse effects on his heart condition; most, if not all, of the applicant’s complaints are contradicted by the records. The alleged fresh evidence does not support the applicant’s submission that the standard of care in custody has fallen below the expectation of the sentencing Judge. Further, the sentencing Judge already accounted for the applicant’s heart condition in his finding of special circumstances and the consequent variation of the statutory ratio to 57%.

70. The high point of the applicant’s case is that his portable monitoring machine was not transmitting back to his cardiologist at times in 2023. The evidence from Dr Walker’s rooms is that this was not a problem as most people do not use the portable monitoring machines anyway. In other words, his treating cardiologist was not concerned by this fact, if it was in fact the case. As stated above, the applicant accepted that he travelled overseas without the machine but emphasised that although the device is a dispensable option in the community, it is a vital part of his care in custody as he cannot readily take himself to a hospital whilst in custody.

71. The portable device has been working since July 2023. There have been no further difficulties with it since then. Nor is it the case that there were any episodes during that time that were not detected due to the portable device not working. It is to be accepted that knowledge that the machine may not be working could be stressful, but it has been fixed now and he is due to get a new one. The applicant is able to be taken to his chosen cardiologist or see him by Telehealth and his condition remains the same. At his last visit to his cardiologist on 13 February 2024, his prognosis was that he was “stable from a cardiac viewpoint and does not require any change in therapy.”

72. Having considered the material placed before this Court on appeal, I am not satisfied that the applicant was sentenced on an incorrect understanding on the part of the sentencing Judge as to how the applicant’s condition could be treated in custody. Given the time spent considering the material, I would allow its tender, grant leave to appeal but dismiss the appeal.

Orders

73. I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

74. MCNAUGHTON J: I agree with N Adams J.

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Decision last updated: 19 June 2024