R v DB

[2001] NSWCCA 320

CITATION:	R v DB [2001] NSWCCA 320 revised - 26/02/2002
FILE NUMBER(S):	CCA 60626/00
HEARING DATE(S):	15 August 2001
JUDGMENT DATE:	15 August 2001
PARTIES :	Regina DB
JUDGMENT OF:	Wood CJ at CL at 1, 32; Sperling J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/22/0150
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	T L Buddin SC with P Kintominas for the Applicant W G Dawe QC for the Crown
SOLICITORS:	Emil Ford & Co for the Applicant S E O'Connor for the Director of Public Prosecutions
CATCHWORDS:	Criminal Law - Sentencing - ill health - fresh exercise of sentencing discretion, without need to esxtablish error by sentencing judge, where medical conditions existed at time of sentencing but were not then known
LEGISLATION CITED:	Crimes Act 1900 (NSW), s61M & s78H
CASES CITED:	Bailey (1988) 34 ACrimR 154 Burrell (2000) 114 ACrimR 207 Hunter (1984) 36 SASR 101 McDonald (1988) 38 ACrimR 470 Ryan [2001] HCA 21 Sellen (1991) 57 ACrimR 313 Smith (1987) 44 SASR 587 Spagnolo (2000) 114 ACrimR 98
DECISION:	1. Extend time for application for leave to appeal and for appeal; 2. Grant leave to appeal and allow the appeal; 3. Re-sentence the applicant as follows: (a) In respect of the first count, imprisonment for three years commencing on 30 June 2000 with a non-parole period of one year and six months, expiring on 29 December 2001, on which date the applicant will be entitled to be released on parole; (b) In respect of the second count, imprisonment for a fixed term of twelve months, commencing on 30 June 2000 to be served concurrently with the sentence under count one; 4. Applicant to be released on parole on 30 December 2001, the conditions of parole to include that he be subject to supervision by the Probation and Parole Service.

- 11 -IN THE COURT OF

CRIMINAL APPEAL

WOOD CJ at CL
SPERLING J

Wednesday 15 August 2001

60626/00 Regina v DB
JUDGMENT

1    WOOD CJ at CL: I ask Sperling J to deliver the first judgment in this matter.

2    SPERLING J: The applicant was sentenced in the District Court on 30 June 2000, having pleaded guilty to one count of homosexual intercourse with a person under the age of ten years (Crimes Act 1900, s 78H) and one count of assault and commit an act of indecency on a person under the age of ten years (Crimes Act 1900, s 61M(2)). The maximum penalty for an offence under s 78H is imprisonment for twenty-five years, and under s 61M(2) imprisonment for ten years.

3 The offence under s 78H consisted of fellatio on the applicant's grandson when the child was seven years of age. The offence under s 61M(2) consisted of fondling the same child's penis when he was five years of age.

4 The sentencing judge took into account two further offences under s 78H and five further offences under s 61M(2) on Form 1. These consisted of two similar further offences under s 78H on the same child and five similar further offences under s 61M(2) of which two were on the same child and three were on the child's brother. The offences were committed over a period of about two and a half years.

5    The effective sentence imposed by the sentencing judge for these offences was imprisonment for five years commencing on 30 June 2000, with a non-parole period of two and a half years. The applicant was seventy-one years of age when sentenced and was in poor health.

6    On behalf of the applicant it was acknowledged that the offences were serious and that they involved a significant breach of trust in relation to very young children. It was further submitted that there were powerful objective considerations relating to the applicant which made the sentence manifestly excessive. These were specified as follows, in the applicant's written submissions:

(a) his age - he was seventy-one at the time of sentence;
(b) his previously unblemished character;
(c) his poor health - he had undergone open heart surgery in the period prior to sentence;
(d) his immediate admissions to his son to having committed the offences when he was first confronted with the allegations;
(e) his pleas of guilty which were entered at the first available opportunity spared the victims the ordeal of having to give evidence;
(f) his contrition and remorse;
(g) the fact that the sentence was likely to be served under protection;
(h) the fact that the applicant did not represent a risk of re-offending and accordingly had good prospects of rehabilitation;
(i) the fact that he must live with the realisation that his behaviour has led to the destruction of the family unit with the result that he is estranged from his own sons as well as his grandsons.

7    After he was sentenced, the applicant was diagnosed with prostate cancer. The condition was probably in existence when the applicant was sentenced. It was common ground that, in these circumstances, the applicant was entitled to a fresh determination of the appropriate sentence by this Court, without the need to demonstrate that the existing sentence was excessive on the evidence before the sentencing judge: Smith (1987) 44 SASR 587; Spagnolo (2000) 114 ACrimR 98; Burrell (2000) 114 ACrimR 207)

8    Notwithstanding the nature of the offences committed by the applicant the Court is bound to have regard, in mitigation of penalty, to the applicant being otherwise of good character: Ryan [2001] HCA 21.

9    The applicant was, at the relevant time, a medical practitioner. Witnesses called as to the applicant's good character, included Mr Peter Hastie, a Presbyterian minister, who described the applicant as being:

"A person of unimpeachable character ... [who] is widely regarded in the local community ... as being a very professional and very reliable general practitioner. There are a number of people in [his] congregation who ... owe their lives to him because of his diagnostic abilities."

Mr Hastie listed a number of occasions and events which justified his conclusion that the applicant "was generous with his time, with his possessions and also with his hospitality".

10    Mr Bruce Smythe, who had known the applicant for fifty years and who had experience as a counsellor, lecturer and in the Christian ministry, also spoke of the applicant's generosity, kindness and integrity. Notwithstanding his surprise and concern at what the applicant had done, he said he continued to "esteem him as a friend". He said that he gave evidence on the applicant's behalf because he felt that "it is important that the Court makes its decision on the widest knowledge of the man".

11    A former neighbour, Mr James Conomos, described the applicant as "an exceptional man".

12    The applicant is entitled to a discount for early plea. The pleas of guilty also qualify as part of a course of conduct showing contrition and remorse on the part of the applicant.

13    The applicant immediately admitted, when confronted by his son, that he had interfered with his grandsons. He sent his son a letter that contained material which constituted admissions. He also apologised to his daughter-in-law for his behaviour as well as writing to his grandsons to express his regret about his actions.

14    The applicant thereafter entered pleas of guilty at the earliest opportunity. This spared his grandsons the ordeal of giving evidence, an experience the applicant was most anxious for them to avoid. Indeed, he told the Court of his concerns about the potential for "gross psychological damage" to them should they have to give evidence.

15    I would allow a discount of 20 per cent for the utilitarian value of the pleas of guilty.

16    The applicant did not have to admit the allegations. There is the possibility in a case such as this that the evidence of young children might not be accepted by a jury. By confessing to the offences the applicant gave up a chance of acquittal. Other evidence contributes too and, with that evidence, warrants a finding that the applicant has been and continues to be truly remorseful and contrite for his actions.

17    It is necessary to bear in mind that, for an elderly person “[e]ach year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect": Hunter (1984) 36 SASR 101. I also accept the submission made on behalf of the applicant that to be sentenced towards the end of one's life, as the applicant has been, means that there will be little opportunity to live down the shame and disgrace which the commission of the offences has occasioned. The longer the sentence the shorter the opportunity.

18    Generally speaking, ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender's health: Smith (supra); McDonald (1988) 38 ACrimR 470; Sellen (1991) 57 ACrimR 313; Bailey (1988) 34 ACrimR 154).

19    At the time of sentencing, the applicant had undergone treatment for a heart condition. That was the situation before he was charged with the offences. Ten days after being charged the applicant presented himself to his treating medical practitioner, Dr Yiannikas, with increased angina. The extent of coronary artery disease was diagnosed and the applicant underwent coronary bypass surgery and mitral valve replacement. There were post-operative complications requiring drainage of the lungs, for which the applicant was hospitalised on four occasions.

20    Dr Yiannikas said in a report:

"Continuing and unrelenting stress would play a role in bad hypertension management and in turn may deteriorate both his coronary disease and left ventricular function. It is at times possible that circumstances of continuing severe stress may precipitate acute coronary occlusion".

21    At that stage, the doctor estimated the applicant's annual mortality risk at approximately three to five per cent, so that there was, according to the doctor, approximately a 25 per cent chance that the applicant would not be alive in five years time. That was the state of the evidence as to health which was before the sentencing judge.

22    I would find, on that evidence, that the applicant's health was likely to be adversely affected by incarceration and that, because of his ill health, incarceration would be more onerous to him than would generally be the case.

23    Since sentence, the applicant's cardiac condition has deteriorated further and he has been diagnosed with prostate cancer. A biopsy and scan were recommended to confirm the existence of the cancer and to ascertain its extent and type for the purpose of management. The applicant is being held at the Junee Correctional Centre. It was thought that it would be necessary for the applicant to be brought to Sydney to enable the diagnostic procedures to be carried out. Having been brought to Sydney it was found the applicant could not be accommodated for those procedures at that time. It was then ascertained that the procedures could be carried out in Wagga Wagga. That was done. In the result, it had taken approximately six months for the diagnostic procedures to be carried out. That was attributable to the applicant's incarceration.

24    The applicant is under the care of a urologist, Dr J T Smith of Wagga Wagga, for the prostate condition. He has prescribed treatment. In his report of 27 March 2001, Dr Smith stated the prognosis needed to be guarded. If the response to treatment was good, the applicant would still have a 40 per cent chance of succumbing to the disease, which I take to mean dying from it. A more recent report shows the response to treatment has been good, so that is the prognosis.

25    Dr Smith did not think that imprisonment would have any major physical impact on the spread of the cancer or the treatment the applicant was to receive. There was, however, according to the doctor, the psychological worry of the disease and, being a doctor himself, the applicant would be more aware of the possible complications which include spread of the disease to other parts of the body.

26    Dr Yiannikas contributed an up-to-date assessment of the applicant's cardiac condition in an affidavit sworn on 13 August 2001. The doctor had obviously been unaware that the applicant would be going to gaol. He now addressed the effect of imprisonment. The applicant is on long term anticoagulation therapy because of the valve replacement. The doctor said that the usual risks of embolism and of bleeding associated with such treatment were substantially greater in prison because anticoagulation management was more erratic in the physical and emotional environment of gaol. The applicant is prone to significant cardiac arrhythmias which, according to the doctor, may not be well tolerated and would increase his risk of morbidity and mortality, including the possibility of stroke.

27    The applicant has now suffered urinary tract infections associated with his prostate condition. According to Dr Yiannikas, such infections may precipitate cardiac arrhythmias and give rise to the risk of infection associated with the prosthetic valve. Any such infection has a 50 to 75 per cent mortality rate. The stress of incarceration, according to the doctor, could also contribute to arrhythmias and/or coronary occlusion.

28    Dr Yiannikas revised his previous estimate of annual mortality risk, being now aware that the applicant is serving a gaol sentence and of the prostate cancer. This he now estimated at 10 per cent annually over and above someone the applicant's age without heart disease. That, as I understand it, translates to no better than a 50 per cent chance that the applicant will be alive in five years time.

29    This is an exceptional case. The offences are very serious and are not to be underrated. On the other hand, subjective features in mitigation of penalty are exceptionally strong. I have regard in particular to the applicant's state of health. He is now seventy-two years of age. His life is likely to be shorter than the average for that age. Also, because of his medical conditions, imprisonment has been and will continue to be very much more onerous for him than in the usual case.

30    The last of these considerations warrants a finding of special circumstances and I would make that finding.

31    I would propose the following orders:

1. Extend time for application for leave to appeal and for appeal.

2. Grant leave to appeal and allow the appeal.

3. Re-sentence the applicant as follows:

(a) In respect of the first count, imprisonment for three years commencing on 30 June 2000 with a non-parole period of one year and six months, expiring on 29 December 2001, on which date the applicant will be entitled to be released on parole;
(b) In respect of the second count, imprisonment for a fixed term of twelve months, commencing on 30 June 2000 to be served concurrently with the sentence under count one.

32    WOOD CJ at CL: I agree. The orders of the Court will be as Sperling J has proposed, save that the Court will make an order for the release of the applicant on parole on 30 December 2001, the conditions of parole to include that he be subject to supervision by the Probation and Parole Service.

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