Regina v Jacobs

[2001] NSWCCA 212

Reported Decision: 122 A Crim R 409

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Jacobs [2001] NSWCCA 212
FILE NUMBER(S):	CCA 60248/99
HEARING DATE(S):	11/05/01
JUDGMENT DATE:	28 May 2001
PARTIES :	Regina v Rodney Warren Jacobs
JUDGMENT OF:	Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/1296; 97/21/0210
LOWER COURT JUDICIAL OFFICER :	Keleman J

COUNSEL :	W Robinson QC (Crown) R Burgess (Applicant)
SOLICITORS:	S E O'Connor (Crown) B Duchen (Applicant)
CATCHWORDS:	Criminal Law- - sentencing- prisoner in need of surgery- - fresh evidence on sentence- departmental responsibility to provide medical care to prisoners- - the limited role of the Court of Criminal Appeal.
LEGISLATION CITED:	Crimes Act 1914 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999
CASES CITED:	R v Vachalec (1981) 1 NSWLR 351 R v Sopher (1993) 70 A Crim R 570 Mickelberg v R (1988-89) 167 CLR 259 R v Smith (1987) 44 SASR 587 R v White (unreported NSWCCA, 7 April 1997) R v L (unreported, NSWCCA 17 June 1996)
DECISION:	Leave to appeal against sentence be granted, but that the appeal be dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CARRUTHERS AJ

BADGERY-PARKER AJ

Monday 29 May 2001

REGINA v RODNEY WARREN JACOBS (60248/99)
JUDGMENT

1    CARRUTHERS AJ: I agree with Badgery-Parker AJ.

2    BADGERY-PARKER AJ: On 8 February 1999 the applicant was indicted at Penrith District Court upon two charges laid under s 33B of the Crimes Act, of threatening injury with intent to prevent lawful apprehension. In respect of each matter the maximum penalty prescribed by the Act is imprisonment for twelve years.

3    On 16 October 1996, the applicant entered the Grace Bros store at Penrith; he was observed by security staff to place a number of items into a shopping bag. He left the store without attempting to pay and was approached by two members of the store security staff. They tried to arrest him for stealing, and a struggle followed, in the course of which the applicant, who was carrying a soft drink bottle, smashed the bottle on the ground and threatened the two men, with the broken bottle. A woman who was nearby attempted to assist the two men and the applicant struggled with her for a brief time before fleeing from the scene. When indicted the applicant pleaded guilty to both charges and was remanded for sentence on a date to be later fixed.

4    On 16 March1999 at Campbelltown District Court the applicant was indicted before his Honour Judge Keleman upon an indictment containing six counts, to which he pleaded not guilty. The trial of the applicant in respect of those matters then proceeded before the judge sitting without a jury. Following the luncheon adjournment that day, the accused was re-arraigned at his own request, and he then entered a plea of guilty to each of the six counts. All of the offences took place on 3 March 1997. There were two counts of theft of a car (counts 1 and 5), three counts of stealing from the person ( counts 2, 4 and 6) and one count of attempted stealing (count 3). Each of the three charges of stealing from the person carries a maximum penalty of fourteen years imprisonment; each of the other charges carries a maximum penalty of five years imprisonment. The facts were conveniently summarised by the sentencing judge as follows-

“ The first offence of steal from the person which is the second count in the indictment occurred at about 12.45p.m on 3 March 1997 when a twenty nine year old female was walking through the car park of a shopping centre at Kings Langley. A white Ford Falcon motor vehicle which had been stolen earlier that day moved along side the female. The prisoner who was the passenger in the vehicle leaned out of the window of the vehicle and pulled the female’s handbag which was over her right shoulder. After a short struggle the bag pulled away from the female and the vehicle moved out of the car park. The female’s handbag contained $100 in cash and other property which included a mobile phone and credit cards.

The charge of attempted steal which is the third count in the indictment occurred later that day at about 1.30 p.m. when the prisoner entered a newsagency at Schofields. He picked up a newspaper and went over to the cash register. The cash register was open and the prisoner attempted to remove money tray from the cash register. However, the newsagency employee held on to the power cord of the cash register preventing the removal of the money tray. The prisoner then left the shop and got into the front passenger seat of the white Ford Falcon vehicle that had been previously stolen and used in the earlier offence. The vehicle was then driven away by another male.

The second offence of steal from the person which is the fourth count of the indictment was committed later that day about 2.25 p.m when a thirty nine year old female was at her car outside a plaza at Thornleigh. She noticed the prisoner get out of the same white Ford Falcon vehicle. The prisoner attempted to take the female’s handbag which was in the boot of her car. She grabbed the prisoner and struggled with him while holding on to her bag. The driver of the vehicle pulled up next to the female who was struggling with the prisoner. The prisoner who was trying to pull the handbag away from the female got into the vehicle whilst still holding on to the handbag. The female let go of the handbag and the vehicle was driven away…

Between 2.30 p.m and 2.45 p.m on 3 March 1997 a burgundy Commodore vehicle was stolen from the Coles car park at Epping. The white Ford Falcon vehicle that had been used in the earlier offences was recovered from the same car park the following day.

The third offence of steal from the person which is the sixth count in the indictment was committed at about 2.45 p.m on 3 March 1997. A thirty six year old female had parked her car in a street in Carlingford near a fruit market. As the female began walking to the shop the prisoner came up behind her and grabbed her handbag. The female tried unsuccessfully to hold on to the handbag. The prisoner then got into the front passenger seat of the burgundy coloured Commodore that had been stolen earlier that afternoon from Coles car park at Epping and was driven away. Later that day between 5.30 p.m and 6.00p.m the prisoner was observed to get out from the driver’s seat of the same burgundy coloured Commodore which was recovered shortly after by police.

The first and fifth counts in the indictment, namely, charges of steal motor vehicle are based respectively on the prisoner’s presence in the stolen white Ford Falcon and the stolen burgundy commodore on 3 March 1997.”

5    At the time of both groups of offences- conveniently, but not entirely accurately- (which I may refer to as the Penrith offences and the Campbelltown ofences) the applicant was on parole for various offences of dishonesty, and for an earlier conviction in respect of the use of a weapon to prevent apprehension. In respect of those matters he had been sentenced in September 1994 to a minimum term of sixteen months and sixteen days commencing 22 September 1994 and expiring 6 February 1996, with an additional term thereafter of three years which was to expire on 6 February 1999.

6    Following his apprehension in respect of the Penrith offences the applicant was granted bail, and he was at conditional liberty pursuant to that bail at the time of the Campbelltown offences.

7    Following the termination of the trial in respect of the Campbelltown offences, arrangements were made for the Penrith offences also to be brought before Judge Keleman at Campbelltown, and he proceeded to sentence in respect of both groups. In sentencing for the Penrith matters, he was asked to take into account two matters on a schedule , namely the assault upon the courageous woman who had attempted to assist the security staff outside the Grace Bros store, and the offence of larceny relating to the goods stolen from the store.

8    The sentences imposed by Judge Keleman on 7 May 1999 were as follows :-

As to the Penrith indictments, in respect of each count ( and in respect of the first count taking into account the matters on the Form One )- A fixed term of imprisonment for eighteen months commencing 7 May 1999 and to expire on 6 November 2000.

As to the Campbelltown indictment-

First count (larceny of a motor vehicle) a fixed term of imprisonment for twelve months to commence on 7 November 2000 and to expire on 6 November 2001.

Second count (stealing from the person) a sentence of imprisonment for four and a half years to commence on 7 November 2000 and to expire on 6 May 2005. That sentence comprised a minimum term of two years which, commencing on 7 November 2000 would expire 6 November 2002, and an additional term thereafter of two and a half years.

Third count (attempted stealing) a fixed term of imprisonment for twelve months to commence on 7 November 2000 and to expire on 6 November 2001.

Fourth count (stealing from the person) a fixed term of imprisonment for two years commence on 7 November 2000 and to expire on 6 November 2002.

Fifth count (larceny of a motor vehicle) a fixed term of imprisonment for twelve months, to commence on 7 November 2000 and expire on 6 November 2001.

Sixth count (stealing from the person) a fixed term of two years imprisonment to commence 7 November 2000 and to expire 6 November 2002.

9    Effectively the applicant was subjected to a total sentence of six years commencing 7 May 1999 and expiring 6 May 2005, with a minimum term during which he must be detained in custody of three and a half years commencing 7 May 1999 and expiring 6 November 2002, and an additional term thereafter, during which he might be released on parole if the Parole Board should so order, commencing 7 November 2002 and expiring 6 May 2005. The 6 November 2002 was the earliest day upon which he might be eligible for release on parole.

10    At the date when the sentence was imposed, the applicant was in prison. I have noted previously that at the time of all of the offences he was on parole. That parole was revoked following his conviction ( upon his pleas of guilty on 16 March 1999) and he was returned into custody on 29 April 1999. The sentence that he was then required to serve will not expire until 19 August 2001. Hence the sentences imposed by Judge Keleman were, in respect of the period from 7 May 1999 to 19 August 2001, to be served concurrently with that balance of parole. Thus, the sentences imposed by Judge Keleman had the effect of increasing the applicant’s period in custody only by the period from 19 August 2001 to 6 November 2002, an increase in the applicant’s custody of less than fifteen months.

11    On the face of it, that represented the extension to the applicant of a quite exceptional degree of leniency, having regard to the objective circumstances of all of the offences, including in particular the circumstance that he was at the time of each group of offences at liberty only conditionally pursuant to parole orders or the grant of bail or both.

12    It is not surprising in those circumstances that the applicant’s legal advisers have at no time contended that the sentences imposed by his Honour were excessive, although in written submissions filed in August 2000 in anticipation of a hearing date of 9 August, the applicant’s counsel was bold enough to submit that the total sentence of six years was “ at the top of the range “. Be that as it may, it was not submitted that there was any error disclosed by his Honour’s remarks on sentence, and it was conceded that his Honour took into account the relevant sentencing principles and the applicant’s subjective case.

13    That subjective case included:

· A close and supportive family environment .

· Three years of apprenticeship initially as an electrician and subsequently as a painter and decorator which regrettably came to end due to a recession in the building industry; subsequent casual work in the building and allied industries.

· From the age of sixteen years abuse of cannabis and, from about the age of twenty years, of heroin; but his use of both drugs ceased at the time of his imprisonment in 1994, and a pre-sentence report said that there were no indications of current drug problem.

· Heavy use of alcohol from about 1991, and a claim that at the time of the Penrith offences, he was affected by alcohol, but that since the commission of the Campbelltown offences he had abstained from the use of alcohol.

· The prisoner’s attribution of both his offences to a gambling problem, and his claim that he has not gambled since his release from jail in 1996.

· A psychological report describing him as highly anxious and depressed with pervasive feelings of low self-esteem, emotional insecurity and a deep reliance on others for support and nurture. The prisoner has sought assistance in dealing with these problems during his period in custody.

· A psychological opinion that the prisoner’s emotional state makes him vulnerable to the detrimental effects of incarceration and exposes him to be stood over by other inmates.

· The prisoner’s poor physical health.

14    In respect of the last matter the judge summarised the effect of the evidence before him as follows:

“ In April 1998 as a consequence of being hit by a motor vehicle he suffered multiple fractures to his lower right leg. The injury required surgery and post operative treatment. The fractures have still not properly healed and the prisoner requires ongoing care with the possibility of future operations including a bone graft. The prisoner suffers pain from his right leg and can only walk for short distances. He receives weekly physiotherapy and hydrotherapy sessions. He takes pain killers and Normison to help him sleep at night. He walks with an obvious limp and has limited mobility”.

15    The judge was properly conscious of the objective seriousness of the offences and the aggravating circumstance that he was on conditional liberty at the time, but gave a great deal of weight to the pleas of guilty and other indications of remorse; to the prospects of rehabilitation which emerge from the pre-sentence report; his vulnerability within the prison system and the probability that his term of imprisonment would be more onerous than would be the case with respect to other prisoners. The judge paid particular attention to the principle of totality and it is abundantly clear from the way in which the sentences were structured that his Honour gave a great deal of weight to that principle.

16    All of the foregoing would suggest that there is no justification for any intervention by this court - nor would there be, but for a substantial body of fresh evidence upon which the applicant seeks to rely. The Crown has not objected to the receipt of the fresh evidence, accepting that it was not available at the date of the original proceedings because it relates to medical investigation, carried out since and medical opinions, expressed on the basis of those later investigations but contends that the fresh evidence should not cause this court to interfere with the sentence.

17    The additional evidence having been admitted, it is in my view inevitable that we should accede to the application for leave to appeal and proceed to deal with the appeal on its merits. The additional medical evidence makes it clear that there is very real question for this court to consider as to whether the sentence imposed in the District Court should be allowed to stand or should be modified in some way.

18    The resolution of that question requires consideration of two separate bodies of authority and the relationship between them.

19    In Regina v Vachalec (1981) 1 NSWLR 351 Street CJ (with whom Nagle CJ at CL and Lee J agreed) emphasised that the responsibility to provide appropriate medical care to prisoners rests with the Department of Corrective Services. Having first acknowledged that the hardship and deprivation which will always be caused by a sentence of imprisonment may be particularly aggravated by matters subjective to the prisoner, including in particular a state of ill health and a consequent need for medical treatment, the Chief Justice continued:

“This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court’s jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them.

The responsibility to provide adequate and proper medical treatment for prisoners rests squarely on the shoulders of the prison authorities…
The Corrective Services Department, as the Crown’s administrative body, has a clear obligation to ensure that adequate and proper medical and dental treatment is provided for persons in custody, equally as it has a clear obligation to provide food, clothing and shelter. These are basic human needs, and the government must ensure that they are available. As we pointed out in R v Danhach (Court of Criminal Appeal, 12th August 1977, unreported), a person deprived of his liberty is, in consequence, deprived of the ability to look after himself; this confers on him an entitlement to have his basic human needs met by the prison authorities.
The admissibility of the material upon which the appellant seeks to rely must be decided by the application of the established principles. The medical issue arose before Lincoln DCJ and was dealt with by him. There was evidence of the need for medical treatment and of the particular hardship which the appellant would undergo whilst imprisoned. This was evaluated by Lincoln DCJ in reaching his decision… If the appellant’s reasonable needs are not being met, and on this we state no opinion, then it is a matter for the authorities to remedy. If they cannot be remedied and the appellant’s need is sufficiently grave, then release on licence or some other similar administrative step would have to be considered by the relevant authorities.
In those circumstances, bearing in mind what has been said regarding the limitations upon this Court’s jurisdiction, we take the view that the appellant’s medical needs, that were considered by Lincoln DCJ at the time of sentence, are not available to be canvassed again before this Court”.

20    In Regina v Sopher (1993) 70 A. Crim. R 570, Vachalec was not referred to but the court expressed itself in terms consistent with that authority;-

“Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age this is a relevant matter to take into account (at pp573-574)”.

21    The court in Vachalec expressly referred to the principles which permit fresh evidence to be admitted in order to disclose error in the first instance proceedings. In Mickelberg v The Queen (1988/89) 167 CLR 259, the question related to circumstances in which fresh evidence might be adduced in a conviction appeal and in a familiar passage Toohey and Gauldron JJ expressed themselves thus (at p301)

“The underlying rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice”.

The rationale is the same where the appeal is against a sentence imposed after conviction: the issue is whether the sentencing proceedings resulted in a miscarriage of justice because, if the fresh evidence had been before the original sentencing judge, that judge would probably have imposed a sentence more lenient than that which was in fact imposed.

22    In a case such as this, where there was evidence before the sentencing judge of the existence of a significant medical condition and of the need thereby engendered for continuing medical treatment, and where the judge expressly adverted to those matters and moderated the severity of the sentence by reference to them, there is a very fine line between the exercise of the court’s undoubted jurisdiction to act upon fresh evidence in order to avoid or correct a miscarriage of justice, and on the other hand intervention in the administration of the corrections system which, for the reasons expressed in Vachalec, is not properly the function of this court.

23    The other body of authority which requires attention, therefore, is that which particularly deals with the admission on appeal to this court of fresh medical evidence relating to a medical condition of the applicant and the need for treatment thereof. The convenient starting point is Regina v Smith (1987) 44 SASR 587, a decision of the Court of Criminal Appeal of South Australia. The appellant was convicted after a jury trial on 29 October 1986 and remanded in custody until sentenced on 3 December 1986. In May 1986 he had been diagnosed as having antibodies of the AIDS virus. Information as to his medical condition was before the sentencing judge. The relevant passage is in the judgment of King CJ at pp588-589:

“The task of the Court of Criminal appeal, speaking generally, is to see whether the trial judge went wrong on the material before him. There is power to receive fresh evidence subject to certain conditions. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
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 appellant’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 from which the appellant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal. We therefore admitted the evidence”.

The evidence in question there was to the effect that the appellant, while in prison, progressed to a more serious stage of his decision. The Chief Justice drew from that evidence the conclusion that “there is a substantial risk that the stress associated with a further period of imprisonment will cause some deterioration in the condition which afflicts him”.

24    In Bailey the applicant was arrested on 26 August 1985 and on 2 May 1986 sentenced to terms of imprisonment which dated back to the time of his arrest. On 14 April 1986 he underwent a blood test, hoping to satisfy himself that he was in no danger from AIDS. The results of that test were not before the sentencing judge who heard the sentencing proceeding on 8 April 1986 and passed sentence on 2 May 1986. The applicant himself did not receive the results of the test, which were positive, until 7 May 1986. Lee J (who incidentally had been a party to the decision of this court in Vachalec) said (at p462):

“In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, was in existence at the time he was sentence, it is proper for this court to allow evidence to that effect to be given on the appeal and to re-open the matter of the proper sentence to be imposed. This court has to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Consideration of health are in this category”.

25    In Regina v Rodney White (CCA, unreported 7 April 1997) the court admitted evidence of the effect incarceration was in fact having upon the applicant’s medical condition (asthma and emphysema), notwithstanding that those conditions existed at the time of sentencing and could have been, but were not, the subject of appropriate medical evidence. Hidden J (with whom Simpson J agreed) admitted the evidence “not without some misgiving” on the basis that it was “admissible as evidence for the purpose of explaining the full extent and implication of the applicant’s condition of health which existed at the time of sentence” (citing Regina v Smith supra).

26    The applicant’s submission is that this is one of those rare cases where the department is not able to provide the treatment required by the applicant. That treatment would be available to him were he not in custody. In the absence of appropriate treatment he is in chronic pain and additionally is exposed to the risk of exacerbation of what is, on one view, an underlying infection in his leg with possible drastic complications which might include amputation of the limb.

27    At the time of the original listing of the appeal on 6 October 2000, the fresh evidence available was evidence from the applicant and his mother to the effect that treatment had not been available in the prison system as the sentencing judge had understood that it would be; and expert medical evidence that such conservative treatment as was available in prison had not been successful in treating the applicant’s leg; the only alternative suggested by the prison medical officer was amputation; but there was available in the private health system (but not in the public health system) a particular surgical procedure proposed by orthopaedic specialist Dr Tim O’Carrigan which offered a good prospect of relieving the applicant’s condition.

28    Shortly before the October hearing date, the Crown obtained information suggesting that suitable treatment in the private system was available to the applicant whilst in custody provided that the applicant was able to meet both the costs of the operation and the cost of the necessary Corrective Services escorts at the time of the operation and throughout a lengthy period of post operative treatment. The applicant proposed to adduce evidence from his mother that she was able and willing to meet the costs of the operation but could not afford to pay the additional costs of prison escorts. The Crown was granted an adjournment in order to obtain further material on that issue. The matter was subsequently listed for hearing on 21 February 2001 but was unable to proceed at that time because both parties were still engaged in investigating the medical condition - the treatment options available, the time which must elapse before treatment could be carried out, and the cost. The matter was further adjourned until11 May 2001. In the meantime, both parties have obtained clarifying reports from the orthopaedic specialist originally consulted by the applicant, Dr Tim O’Carrigan; from Dr Richard Matthews, the Chief Executive Officer of the Corrective Services Department; and from Dr Brett Courtenay, an orthopaedic specialist who has proposed to the Corrective Services authorities a different form of surgical treatment which would not be seriously hindered were the applicant still a prisoner serving a sentence at the time when the treatment was to be carried out.

29    The medical experts agree that there is established non-union of the fracture in the distal one-third of the right tibia. It is uncertain whether the fracture site is infected, although both specialists agree that the appearances are consistent with the presence of osteomyelitis. There have been some clinical signs of infection, from time to time, which, apparently respond to antibiotic therapy if given. Dr Courtenay seems more optimistic that there is no infection than Dr O’Carrigan. The question can only be finally determined by a biopsy procedure prior to any surgery or by inspection of the site in the course of surgery. In the absence of surgical intervention the applicant will continue to experience a great deal of pain and disability as is now the case. He is relatively immobile and unable to work or take part in other prison activities; he is subject to considerable pain for which palliative treatment has been not always available and the provision of which has, given the exigencies of a prison system, being sometimes delayed. It is clear that so long as the condition is not treated surgically his experience of imprisonment will be more onerous than would ordinarily be the case.

30    Three alternative surgical procedures have been discussed. An orthopaedic consultant to the Corrective Services Department, has proposed a below knee amputation. All agree that that would definitively dispose of the infection, and Dr Matthews, while not advocating that procedure, has acknowledged that it would remove pain and, with the use of a modern prosthesis, would improve function and mobility. The orthopaedic specialists, Dr O’Carrigan and Dr Courtenay are both strongly opposed to the idea of amputation (as, it may be added is the applicant himself). Dr O’Carrigan has proposed a procedure of bone resection using what is referred to as the Ilizarov apparatus, and Dr Courtenay acknowledges that this is an appropriate procedure. It involves, however, not only a great deal of initial expense but a lengthy period (probably 12 months) of close follow up by the treating surgeon, which would be difficult but not impossible to secure while the applicant remained a prison inmate. In the absence of timely reviews by the treating surgeon, the risk of complications and an unfavourable outcome would be considerable. Dr Courtenay has proposed a less radical procedure which involves the debridement of the fracture site and the insertion of an intramedullary nail. Dr O’Carrigan concedes that that procedure may be satisfactory, but says there are risks. In particular, if it turns out that the non-union is infected, the internal operation may stimulate the spread of infection to a point where, in any event, the Illizarov treatment would be required or, in a worst case, amputation could be necessary. The procedure would not restore the loss of length of the right limb which has occurred, and would not correct the varus (outward bowing) deformity of the ankle. Although there is a risk of spreading infection in the course of the internal fixation procedure, that risk is not thought to be very large; and both specialists agree that even in the presence of infection, successful union of the presently ununited fracture could be anticipated.

31    It is not for this Court or the Corrective Services authorities to dictate what treatment the applicant should or may have in respect of his condition. The choice is his, and should he choose ( as he has indicated he would) the procedure proposed by Dr O’Carrigan, the Court must in my view proceed on the assumption that he is entitled to have that procedure, either (if he is in a position to pay for it) in the private system or, if it is available, in the public system.

32    The most recent information from Dr O’Carrigan is that the procedure could now be carried out upon the applicant as a public patient at Liverpool District Hospital, where the appropriate apparatus has recently been made available. The procedure could be carried out there not immediately but in the latter months of the current year. As a private patient the applicant could have the treatment almost immediately.

33    Either way, if he has the treatment while he is a prison inmate, it would be necessary for prison officers to be assigned to escort him to and from his post operative consultations and, depending upon his prison classification, to stand guard over him in hospital.

34    He had expected by now to be classified C3, which would do away with the need for such guarding while in hospital; but that expectation of the applicant achieving reclassification as C3, had not in fact been fulfilled when this matter was before the court on 11 May 2001 because of an internal matter of prison discipline. Shortly, it appeared from a routine urine test that there were present in the applicant’s body drug residues which may have been consistent with his ingestion of heroin, contrary both to the law of the State and to prison discipline. However, other material before the court showed that the probability was that those traces merely reflected the applicant’s ingestion of prescribed analgesics for the relief of the pain in his damaged leg and the probability appear to be that the reclassification will soon proceed as was previously anticipated.

35    If the treatment is carried out while the applicant remains a prison inmate, even though full time guarding of him in hospital may not be required, the cost of escorting him to and from the consultation post-operatively will be considerable, and there might no doubt sometimes be a problem in securing his attendance punctually, given all of the demands upon the Corrective Services Department. The performance of the surgery while he is an inmate is clearly a less desirable course. If the procedure is delayed, the consequence is the prolongation of the time during which he must endure continuing pain and disability.

36    One of the more recent decisions of this court dealing with the problem of reconciling the need to insist on this court’s role strictly as a court of error, and the authorities referred to earlier dealing with the admission of fresh evidence, and the way in which this court should deal with such evidence consistently with the proper recognition of the limitations upon its jurisdiction, was Regina v L (unreported, 17 June 1996). The court said:

“The relevance to sentence of an offender’s illness has been the subject of a number of authorities in recent years in this court and elsewhere. From them a number of principles can be extracted.
The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less in the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners; R v Vachalec (1981) 1 NSWLR 351 per Street CJ at 353-4. If a prisoner’s condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989 preserves the royal prerogative of mercy, and Section 25 A(I) of the act enables the Offender’s Review Board to grant parole at any time if the prisoner is dying or there are other “exceptional extenuating circumstances”: R v Jones (1993) 70 A. Crim. R 449 per Carruthers J at 457”. (See now, Crimes (Sentencing Procedure) Act 1999, s102; and Crimes (Administration of Sentences) Act 1999, s160, conferring the like power on the Parole Board).

37    The court then referred to Smith, Bailey and other relevant cases, and observed-

“Where illness is seen to be relevant to the determination of sentence, its weight must be assessed in light of all the circumstances of the case. Obviously, one of those circumstances will be the seriousness of the offence”.

38    As indicated above, the applicant is presently serving (as he was at the time when sentenced by judge Keleman) the balance of his parole, following revocation of parole and his return to custody on 29 April 1999. The sentence that he is required to serve by reason of that revocation of parole will not expire until 19 August 2001. This court has no jurisdiction to interfere with that situation. If the applicant has any remedy in relation to it, it can only be by way of an application to the Parole Board. Further as observed above, the effect of the sentences imposed by Judge Keleman in respect of which this appeal has been brought was to increase the applicant’s period in custody only by the period from 19 August 2001 to 6 November 2002, an increase in the applicant’s custody of less than fifteen months. The fresh evidence certainly shows that during his whole period in custody the applicant will, if the suggested surgery is not performed, continue to suffer a great deal of pain and inconvenience. Making every allowance for that, but giving proper weight to the gravity of the offences with which we are concerned, I am of opinion that to reduce the sentences (or the minimum term) would result in a sentence of unacceptable leniency.

39    Noting that the evidence does not suggest a significant risk of deterioration in the applicant’s condition in the event that surgery is delayed, I have reached the conclusion that a case has not been established for the intervention of this court.

40    If, contrary to the present expectation of the medical experts, there were to occur a significant deterioration in the applicant’s condition later in the term of his imprisonment and before arrangements are made for surgery, it would of course, remain open to the applicant, to make an application to the Parole Board for compassionate release.

41    I propose that; leave to appeal against sentence be granted, but that the appeal be dismissed.