R v Killick
[2002] NSWCCA 54
•4 March 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Killick [2002] NSWCCA 54
FILE NUMBER(S):
60864/00
HEARING DATE(S): 4 March 2002
JUDGMENT DATE: 04/03/2002
PARTIES:
Regina v John Reginald Killick
JUDGMENT OF: O'Keefe J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/11/0679
LOWER COURT JUDICIAL OFFICER: Mahoney DCJ
COUNSEL:
(A) In Person
(C) W G Dawe QC
SOLICITORS:
(A) In Person
(C) S E O'Connor
CATCHWORDS:
Sentencing - Application to re-open based on health grounds - further reductions in sentences refused
LEGISLATION CITED:
Nil
DECISION:
Application to further reduce sentences dismissed. The orders of the Court made herein on 4 January 2002 and today are to be passed and entered forthwith.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60864/00
O'KEEFE J
SMART AJ
Monday 4 March 2002
REGINA v JOHN REGINALD KILLICK
JUDGMENT
O’KEEFE J: I will ask Smart AJ to deliver the first judgment in this matter.
SMART AJ: On 4 January 2002 Mr Killick applied to have this Court reconsider the judgment it delivered that day. The Court’s orders have not been passed and entered pending the determination of Mr Killick’s application. In the event of the Court agreeing to reconsider its judgment, Mr Killick, who represented himself capably, seeks to have his sentences further reduced. This judgment should be read with the Court’s judgment of 4 January 2002.
In his submissions of 4 January 2002 Mr Killick contended that during his sentencing hearing in the District Court in December 2000 and the hearing of his application for leave to appeal and the appeal before this Court his health was not a major issue. Mr Killick has written that in the month prior to his sentencing hearing his blood pressure readings were fairly good and that in the two months prior to the hearing of his appeal (April 2001) his readings were reasonable. This Court was aware of Mr Killick’s hypertension/blood pressure problems.
In his oral submissions on 2 April 2001 Mr Killick sought leniency on the basis of his age and health. He took the Court to Dr Pascoe’s report of 12 December 2000 and a report from Dr A Darbar dated 7 December 1997, Emergency Medicine, Royal North Shore Hospital. Dr Darbar addressed Mr Killick’s blood pressure amongst other matters and wrote that he believed that Mr Killick’s pain was musculo-skeletal and that his blood pressure would need to be monitored in the long term. The Court regarded that 1997 report as having been superseded by Dr Pascoe’s later report.
At the hearing on 2 April 2001 Mr Killick referred us to pages of the transcript where his counsel addressed the judge on the state of Mr Killick’s health and pointed out that stress is a trigger for hypertension and that the conditions of his incarceration, including segregation, which produced a very strong element of isolation, were stressful and aggravated his stress, especially if it continued for an indefinite period.
This Court was also referred to his counsel’s submission to the judge that Mr Killick had:
“A diagnosable medical condition which represents some danger to my life prospect and danger to stroke and possible damage to the heart.”
Mr Killick continued:
“That is a condition that I will labour with in the future and it is uncertain whether the condition is able to be properly controlled technically, if I am held at Goulburn as it appears I will be.”
Mr Killick conceded that while he was held in Long Bay Gaol his blood pressure was almost normal. He was on medication.
I interpolate that the judge, in his remarks, noted that the medical documents showed that he suffered from high blood pressure, that his blood pressure went up when he was in Goulburn Gaol and that unless it is controlled he is at risk of a coronary episode or a cerebral episode. Later the judge said:
“...the only medical evidence in the case indicates whilst he does have high blood pressure in certain circumstances it is able to be controlled and that his lifespan, subject to control of his blood pressure, has not been foreshortened.”
When the hearing of Mr Killick’s appeal continued on 3 April 2001 the Court discussed with Mr Killick the contents of Dr Pascoe’s report, his (Mr Killick’s) blood pressure history and their significance. In his further submission on his application for the Court to reconsider its earlier judgment, Mr Killick complained that between 10pm and 6am each day there were no medical staff on duty at Goulburn Gaol. Mr Killick told the Court that his blood pressure reading on the night of 2 April 2001 was extremely high, namely 190/115 and that this happened quite often. He said that his blood pressure problem was exacerbated by extra stress.
It would be natural for Mr Killick to be under extra stress on 2 and 3 April 2001. On each day he had set out at an early hour to travel from Goulburn to the Court under prison guard and he addressed the Court at length. At the conclusion of the hearing on each day he was returned to Goulburn Gaol. Those days were exceptional. The Court hearing was important for Mr Killick.
At the hearing on 3 April 2001 the Crown contended that the report of Dr Pascoe illustrated that Mr Killick had manageable blood pressure and that it was being and could be managed within the prison system. It was obviously exacerbated in conditions of high stress. The Crown submitted that this did not warrant an alteration of the sentence.
In para 26 of the Court’s reasons it noted the opinion of Dr Brown:
“...the applicant’s reports of a continuing pattern of generalised anxiety and worry about difficulties in maintaining contact with Ms Dudko and his reports of elevated blood pressure during periods of emotional distress are the main features of his current mental state.”
Dr Brown also thought that the applicant appeared to be coping adequately within the prison system. In para 27 of its reasons the Court set out this passage from the report of 12 December 2000 of Dr Pascoe:
“In summary, Mr Killick has essential hypertension (as with many others in the general population) which has been at times quite difficult to control and at unacceptably high levels. Such high levels carry a risk of stroke and of increased stress over a long period of time to the heart. It certainly was quite clear that during his stay in Long Bay Gaol his blood pressure was very satisfactory but that conditions of Goulburn Gaol in some way or other did appear to aggravate the situation leading to poor control of the blood pressure. As regards prognosis I believe that his blood pressure will be able to be satisfactorily controlled and will not lead to complications. His life expectancy is therefore good and compares favourably with that of the general population, provided blood pressure control continues to be good.”
14The Court proceeded on the basis of the reports of Drs Brown and Pascoe. The blood pressure of Mr Killick and its consequences were raised in argument before the judge and this Court. It was an issue to which this Court paid attention. It is incorrect to describe the point as peripheral. Mr Killick attached more importance to the point than the judge and this Court.
15On his application for reconsideration, Mr Killick submitted that since 2 and 3 April 2001, the circumstances as to his health had changed significantly. In support of this contention Mr Killick relied on a large number of blood pressure readings. He submitted that these revealed a significant increase in the instability of his blood pressure and that it quite often reached unacceptably high levels, sometimes so high that he should be in hospital. His medication has been appreciably increased since the hearing in April 2001. He asserted that he was also suffering from various side effects, probably from the medication, including severe headaches, numbness in hands, diarrhoea, tiredness and occasional light-headedness. He subsequently also mentioned pains in the chest.
16He has written that on 28 December 2001 the doctor at the gaol told him that he cannot increase his medication because it could result in him suffering a stroke. Mr Killick has undertaken a detailed analysis of his blood pressure readings. He fears that his chances of surviving a long prison sentence are deteriorating. He insisted that the circumstances of his case were exceptional.
17The applicant reiterated the substance of his submissions of 4 January 2002 and the contents in his statutory declaration of 12 January 2002 and developed his earlier contentions. He has told the Court of a number of instances in which he was adversely affected. For example, he mentioned that at 1 am on 24 May 2001 his blood pressure was high and he had to call the nurse in. She gave him an anginine tablet. On the following day, the doctor increased his medication. This incident indicates that he is able to obtain timely assistance. Mr Killick relied heavily on the decision of the Victorian Court of Appeal in R v Spagnolo 2000 VSCA 126.
18 In his affidavit received in the Court Registry on 13 February 2002 Mr Killick queried the way in which the Court had structured his sentence. The Court deliberately made some of the sentences partially concurrent and partially accumulative. There were also fixed terms.
19Mr Killick detailed further instances where he was adversely affected and conversations with and advice from Dr Krejei. Amongst other matters, the topics of his continuing high blood pressure and his depression were covered.
20Ultimately, the Crown did not oppose the reception of the further material relied on by Mr Killick. The Crown submitted that they made no differences to the sentences which Mr Killick should receive. The Crown submitted that no other sentences than those imposed by this Court were warranted in law.
21Mr Killick’s submissions, statements to the Court and materials reveal that his blood pressure is being closely monitored by himself and the nursing staff and medical officers at the gaol. It is to be expected that Mr Killick will suffer from depression and the effects of stress. They are the likely concomitants of a long gaol sentence of a man born in February 1942, especially where that sentence is being served in maximum security and in segregation.
22Mr Killick, in his submissions before the Court today, again placed reliance on Spagnolo and other authorities dealing with health issues. It is accepted that a prisoner’s state of health is a matter to be taken into account when considering the question of sentence and that it can often lead to a sentence being mitigated. Since the sentence hearing and more particularly since April 2001 the applicant’s blood pressure has increased, according to the materials placed before us by him and that increase requires extensive management. However, that management has occurred.
23Mr Killick told us today:
(a)He has purchased a machine which enables him to take readings of his blood pressure and his pulse.
(b)He has recorded those readings which reveal high blood pressure but not those which show a low blood pressure. There were less of these latter readings.
(c)The nursing staff at Goulburn Gaol was quite good and endeavours to do their best. He has a buzzer in his cell and if he pushes it the prison staff come to his cell.
(d) He sees one of the nursing staff three or four times per week but that it is not easy to see a doctor more than once a month. (The nursing staff tends to decide when he should see a doctor).
(e)A delay of fifteen minutes in a nurse coming to see him at night was too long.
(f)His conditions of custody were more burdensome given his medical condition.
Mr Killick pointed out that the Department of Corrective Services had assigned him to Goulburn Gaol and was reluctant to shift him, although that gaol was the harshest one in the state. He said that he was not seeking a transfer from Goulburn Gaol but a reduction in his sentence. He also submitted that this Court should intervene and not leave his fate in the hands of the prison authorities and the executive.
It is not easy to reconcile the selective blood pressure readings of Mr Killick with those of the clinic at Goulburn Gaol. There is no up to date medical report on Mr Killick’s medical condition or his prognosis. The Court does not know what the future holds or, indeed, what his condition would be if he were out of gaol. The evidence is that he is receiving reasonable medical attention in gaol. There is no medical evidence that Mr Killick’s life is at risk at being shortened in his present condition. It is the responsibility of the Department of Corrective Services to see that Mr Killick continues to receive reasonable medical attention. That may involve changes of management and gaol in the future. Those are matters on which it would be unwise to speculate.
The appellant cannot complain of his stricter custody conditions arising by reason of his escape. However, this is not a case where he is likely to be attacked by other prisoners.
Mr Killick placed reliance on a number of cases and compared what had happened in those cases with his own case. At one stage he embarked upon a factual comparison. I did not find those cases of assistance. The facts in this case and the combination of offences are unique and I have preferred to focus on these and apply the correct sentencing principles.
The sentences to which Mr Killick is now subject contain a significant measure of leniency. He is not entitled to any further leniency or discount. For the high order of criminality involved lesser sentences are not permissible. I propose the following orders:
1. Dismiss the application of Mr Killick to further reduce his sentences.
2. Direct that the orders of the Court made herein on 4 January 2002 and
today be passed and entered forthwith.
O’KEEFE J: John Reginald Killick (Killick) who will be sixty and one month in nine days time, his date of birth being 13 February 1942, has sought leave to reopen and further argue an appeal against the severity of a series of sentences imposed on him in the District Court on 21 December 2000. Following pleas of guilty which were entered by him he was sentenced to terms of imprisonment totalling twenty-eight years with non-parole periods which aggregated fifteen years.
He initially sought leave to appeal from these sentences on 24 December 2000. However, as a result of some mishaps in the system, his formal appeal was not completed and filed in the Registry until 15 February 2001. The offences to which Killick had pleaded guilty were two counts of armed robbery, one of maliciously discharging a firearm, one of escape, one of assault pilot, one of detaining a person for advantage and one of stealing a motor vehicle.
The robbery offences had been committed at the Commonwealth Bank at Mittagong on 30 October 1998 and at the National Bank Bowral on 20 January 1999. The robberies involved the use of a firearm, the threatening of staff and customers, threats to the victims and the taking from the banks of an amount in excess of $50,000.
The malicious discharging of the firearm involved Killick, when he was cornered, shooting at an off duty police officer who had cornered him and later firing a further shot at close range in the direction of such officer.
The escape and assault committed upon the pilot occurred on 25 March 1999. It was a planned and dramatic event which involved Killick threatening the pilot of the helicopter in which he escaped by holding a rifle to his head in order to force the pilot to comply with his directions.
The detain for advantage and steal motor vehicle involved Killick commandeering a car at gunpoint, threatening the driver with a gun and forcing the driver to drive him away from near where the helicopter, in which he had escaped, had landed. Killick compelled the driver of the vehicle to drive from Macquarie to Neutral Bay where he ordered the driver out of the car. Killick drove off in the car and abandoned it a short distance away.
As can be seen from the foregoing summary the offences committed by Killick were objectively most serious, involved violence, the use of firearms and the threatening of a number of people. Objectively they call for heavy sentences.
Killick was given leave to appeal to the Court of Criminal Appeal and on 4 January 2002 Smart AJ delivered a judgment in which I concurred. In the result Killick was given leave to appeal against the sentences imposed and his appeal was allowed in part. His sentences were reduced in aggregate to twenty-three and a half years with non-parole periods of fourteen years.
Before the judgment of the Court of Criminal Appeal had been taken out Killick applied for leave to adduce further evidence and to argue for still further reductions in both the sentences imposed and in the non-parole periods that had been fixed.
The matter on which he sought to rely in this regard was his health, in particular his high blood pressure, which as Dr Pascoe pointed out in his report of 12 December 2000 he suffers, “as with many others in the general population”. He relied on the effects which he argued his imprisonment would have upon him and in turn on his lifespan, quality of life and severity of his imprisonment. These matters were referred to by the sentencing judge and dealt with by Smart AJ in his judgment of 4 January 20002.
However, Killick claims that his blood pressure has deteriorated since he went into custody and this deterioration should be taken into account when fixing his sentences and non-parole periods. His contention is that the adjusted sentences imposed on 4 January 2002 should be further adjusted downwards by a minimum of ten per cent and up to a maximum of twenty-five per cent.
Killick was recaptured on 9 May 1999 having been at large a little over six weeks. He has remained in custody since that date and as at the date of the hearing of his application for leave to appeal in April 2001 he was being held in the Goulburn Correctional Centre. He is still being held there.
For the reasons set out in the judgment of 4 January 2002 the sentences imposed by the trial judge had to be reviewed. In the appeal it was decided that head sentences of seventeen years and six months would be “manifestly inadequate for the criminality involved” in the events which led to the convictions in question. There was no Crown appeal and as a consequence the Court had to readjust the structure of the sentences. This meant that Killick, far from being worse off overall, was better off than he had been before his appeal had been determined. The sentences imposed were, in my view, as low as could be regarded as appropriate for the criminality involved.
I have heard the judgment just delivered by Smart AJ. I agree with the orders proposed by him and with his essential reasons. There is, however, one subject to which I would like to refer, namely the nature of the disorder from which Killick suffers.
Killick has taken his own blood pressure with a digital device which he has purchased and which is under his ongoing personal control. In the material filed in support of the present application, he has set out in two statutory declarations sixteen readings taken at various times on various days in January and February 2002. It emerged in the course of argument that the readings made known to the Court in the material filed by Killick did not include a number of lower readings, some taken on days on which there was a high reading which was said to have been recorded by Killick. What emerged is that Killick appears to have blood pressure that is labile, sometimes up, sometimes down, variable throughout the day. The pattern is not one of consistently and irreducibly high blood pressure.
The second thing to note about his blood pressure readings is that those taken in the clinic at Goulburn Correctional Centre have not infrequently been lower than those taken by Killick himself. The explanation for this is not clear. Indeed no explanation has been offered. Killick did not seek to call any medical evidence in the present hearing in relation to his blood pressure, its effects upon him or its response to medication, if taken regularly and in the doses prescribed, nor as to the effects of his imprisonment on his blood pressure.
I agree with Smart AJ that there is no medical evidence to support a finding that the blood pressure of Killick is uncontrollable nor as to his prognosis nor that his blood pressure is any worse as a result of his imprisonment than it would otherwise have been.
As indicated I agree with the orders proposed by Smart AJ and his reasons for such orders.
The orders of the Court will be:
1.The application of Killick to further reduce his sentences is dismissed.
2.The orders of the Court made on 4 January and today are to be passed
and entered forthwith.
47APPLICANT: Your Honour, excuse me it’s my duty to draw your attention if there is a mistake before—
48O’KEEFE J: Thank you. You can point that out in written submissions Mr Killick.
49DAWE: I was just going to refer to the fact did your Honour mean to say sixty years and one month old in nine days time.
50O’KEEFE J: I did thank you.
51APPLICANT: Your Honour there were also a lot of high readings which you didn’t take into account which was in the affidavit.
52O’KEEFE J: Mr Killick you’ve argued your case and we have delivered judgment.
53APPLICANT: And you’ve twisted the judgment.
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LAST UPDATED: 13/03/2002
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