Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: El-Jalkh v R [2011] NSWCCA 236
• Hearing dates: 12 October 2011
• Decision date: 03 November 2011
• Jurisdiction: Common Law - Criminal
• Before: McClellan CJ at CL at 1; Latham J at 2; Harrison J at 3

Decision

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed upon the applicant by Williams DCJ on 1 October 2010 and in lieu thereof sentence the applicant to a term of imprisonment of 10 years commencing on 24 November 2006 and expiring on 23 November 2016 with a non-parole period of 5 years and 3 months commencing on 24 November 2006 and expiring on 23 February 2012.

• Catchwords: CRIMINAL LAW - appeal against sentence - whether applicant has justifiable sense of grievance for sentence imposed on co-offender - where applicant's medical condition taken into account when determining non-parole period - whether medical condition taken into account for overall term of imprisonment - whether new evidence of deterioration of medical condition means sentencing judge did not have full appreciation of the condition - whether sentencing discretion miscarried where prison authorities failed to make medical treatment available - whether error of commencement date of sentence - sentence adjusted and reduced by 1 month
• Legislation Cited: Crimes (Administration of Sentences) Act 1999; Criminal Code Act 1995; Customs Act 1901
• Cases Cited: Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68; El-Jalkh v R [2009] NSWCCA 139; Fisher v R [2008] NSWCCA 103; House v The King [1936] HCA 40; (1936) 55 CLR 499; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v BEG [2001] NSWCCA 341; R v Keir [2004] NSWCCA 106; R v Munday (1981) 2 NSWLR 177; R v Szabo [2003] NSWCCA 431; R v Vachalec (1981) 1 NSWLR 351; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360; Withers v R [2009] NSWCCA 133
• Category: Principal judgment
• Parties: Antoine El-Jalkh (Applicant); Crown (Respondent)
• Representation: P Lange (Applicant); R Sutherland SC (Crown); Nyman Gibson Stewart (Applicant); Commonwealth Director of Public Prosecutions (Respondent)
• File Number(s): 2004/16157

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2010-10-01 00:00:00
• Before: Williams DCJ
• File Number(s): 2004/16157

Judgment

1 McCLELLAN CJ at CL : I agree with the orders proposed by Harrison J and his reasons. I also agree with the remarks of Latham J.

2 LATHAM J : I agree with Harrison J. I would only add that, notwithstanding the applicant's asserted medical condition and putting to one side the need to grant leave to correct the error conceded by the Crown, I would have refused leave in this case. The criminality inherent in a conspiracy to import 4.3 kg of pure MDMA, instigated by the applicant, was incapable of being adequately reflected in any sentence less than that imposed. The parity arguments advanced by the applicant fail to appreciate the fact that the co-offender Kellaway was sentenced by the same judge on a number of drug offences, of which the conspiracy to import was one. In addition, Kellaway was serving sentences for other unrelated offences, thus requiring the judge to consider the totality of that criminality in setting the head sentence and non-parole period for the conspiracy offence. In these circumstances, there is no utility in undertaking a direct comparison between the sentence of Kellaway and this applicant.

3 HARRISON J : Antoine El-Jalkh pleaded guilty on 17 December 2009 to one count of conspiracy to import not less than the commercial quantity of MDMA into Australia between about 1 August 2002 and 1 May 2003 contrary to the provisions of s 11.5(1) of the Schedule of the Criminal Code Act 1995 and s 233B of the Customs Act 1901 . The quantity of the drug involved was 4.3721kg of pure MDMA contained in 62,459 ecstasy tablets weighing 17.4 kgs. The maximum penalty for this offence was life imprisonment. Williams DCJ sentenced the applicant on 1 October 2010 to a term of imprisonment of 10 years with a non-parole period of 5 years and 3 months.

4 The applicant seeks leave to appeal against that sentence. He relies upon the following grounds of appeal:

Ground 1 : The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Paul Kellaway.

Ground 2 : Although his Honour took into account the medical condition of the applicant in determining the appropriate non-parole period, his Honour erred in failing to consider [it] when determining the appropriate overall term of imprisonment.

Ground 3 : Evidence subsequent to the sentencing of the applicant has revealed that [his] medical condition has deteriorated to such an extent that the learned sentencing judge did not have a full appreciation of [his] condition.

Ground 4 : His Honour's sentencing exercise [ sic , discretion] miscarried as a result of the prison authorities' failure to make medical treatment available to the applicant, as well as their consequent breach of duty to guard against any further deterioration of his medical condition.

Ground 5 : His Honour erred by miscalculating the commencement date of the sentence in light of the time the applicant had already spent in custody.

5 The Crown concedes the error contemplated by Ground 5 and that the applicant is entitled to an adjustment of his sentence to correct it.

Background

6 His Honour Williams DCJ originally sentenced the applicant on 16 February 2006 to a term of imprisonment of 12 years with a non-parole period of 7 years and 6 months. He appealed against his conviction to this Court and on 25 June 2009 a new trial was ordered: El-Jalkh v R [2009] NSWCCA 139. When the matter came back before his Honour for the new trial, the applicant pleaded guilty. The sentence imposed by his Honour following that plea is the subject of this application.

7 The facts are relevantly set out in the judgment of James J in this Court at [6]-[28] as follows:

"[6] In his remarks on sentence Judge Williams said that he was satisfied that the jury had found the appellant guilty on the basis of 'the following general facts', which his Honour then set out. I am satisfied that this statement of general facts by his Honour in his remarks on sentence was in accordance with what had been the Crown case at the trial. The following summary by me of the Crown case at the trial is based on his Honour's statement in his remarks on sentence and on parts of the evidence in chief of the principal Crown witness Carlos.

[7] Carlos was born in Venezuela to Syrian parents and had been in Australia since 1981.

[8] In 2002 Carlos was carrying on a business of importing in containers shoes and clothing, principally from Syria and Lebanon. He had a warehouse in a Sydney suburb.

[9] Carlos first met the appellant in the year 2000 and from early 2002 both Carlos and the appellant, who was a hairdresser, carried on businesses in the same suburban shopping centre. They became friends.

[10] Carlos [ sic , 'the appellant'] was friendly with Paul Kellaway and Scott McGee.

[11] At some time in 2002, which was not precisely fixed by the evidence, the appellant had a conversation with Carlos in which the appellant asked Carlos 'how you getting all these stuff from overseas?' and Carlos replied 'I get them by container'.

[12] On a subsequent occasion the appellant told Carlos 'look I can make you to make big money to bring, you know, if you help me to bring some stuff from overseas in Lebanon'. Carlos said to the appellant 'what, what do you mean?' and the appellant said 'I'm very well connected overseas and I'm very well connected here. I can put my hand, I can, if you know organise some drugs and cocaine and hash oil, oil-hash, in Lebanon. Can you put them in the container and you know we make big money and you not have to work hard and selling shoes and something like that'.

[13] Carlos said that he would think about the appellant's proposal. He contacted a New South Wales police officer for whom he had been an informant and told him about the proposal. The police officer encouraged Carlos to obtain further information.

[14] The appellant told Carlos about a conversation the appellant had had with Paul Kellaway, in which he told Kellaway that he could get drugs from overseas but did not have any money and 'Paul say ok, we can put in money in this'. Kellaway had said that he had a partner 'Scott' (McGee).

[15] The appellant told Carlos in a subsequent conversation that the appellant had told Kellaway that the appellant had a quantity of 10 kgs of cocaine in a drum in Lebanon.

[16] In a later conversation between the appellant and Carlos, Carlos told the appellant that he did not currently have any container coming from overseas. The appellant said that that would not be a problem. 'These people would pay the money to organise a container of shoes' and said that Carlos' job would be to go to Syria, organise the container and the shoes or other stock which would be loaded into the container and bring the container to Lebanon, where it would be stored and the drugs would be placed in it. Carlos reported this conversation to the New South Wales police officer.

[17] There was an attempt by the New South Wales police to have police officers observe Kellaway handing money to Carlos but, although $50,000 in cash was handed over by Kellaway to Carlos, police were unable to be present.

[18] Carlos became dissatisfied with the New South Wales police officer and approached the National Crime Authority, as the Australian Crime Commission was then called. In early November 2002 he came under the supervision of Detective Purchas and he remained under Detective Purchas' supervision. Purchas encouraged Carlos to involve himself in the proposed importation of drugs. Listening device and telephone intercept warrants were obtained by the Crime Authority.

[19] A further amount of $200,000 was paid to Carlos for the purpose of the drug importation.

[20] On 29 December 2002 Carlos left Australia and travelled to Lebanon and Syria.

[21] On 3 February 2003 the appellant left Australia and travelled to Lebanon. On 15 February 2003 the appellant went to Syria, where he had a meeting with Carlos, and on the following day he returned to Lebanon.

[22] It had been intended by the conspirators that the drug which would be imported would be cocaine. However, cocaine could not be obtained in Lebanon or Syria. There was a change of plan, so that the conspiracy became a conspiracy to import MDMA.

[23] On 24 February 2003 the appellant flew to Holland and arrived in Amsterdam.

[24] On the following day 25 February 2003 McGee left Australia and flew to England. McGee then flew to Holland. The appellant and McGee had a meeting in Holland at some time between 25 February and 28 February.

[25] On 28 February 2003 the appellant left Amsterdam and he arrived in Australia on 5 March 2003.

[26] McGee transported MDMA that had been obtained in Holland to Italy for the purpose of bringing it to Australia. McGee was arrested in Italy on 21 March 2003. The appellant and Kellaway did not become aware that McGee had been arrested until 7 April 2003, although, of course, they were aware that there had been no communication between them and McGee since 21 March.

[27] On 25 March 2003 a conversation occurred between Kellaway and the appellant at Kellaway's apartment, the recording of which was referred to at the trial as LD 123.

[28] Kellaway was arrested in early May 2003..."

8 The learned sentencing judge referred to the following matters, among others, in his remarks on sentence:

"Mr Eljalkh has no previous criminal history.

*****

Since the initial trial and sentence, I have sentenced the co-offender Kellaway and am now privy to facts as to his background and offending which, in retrospect, would have to be regarded as substantially worse than Mr Eljalkh's. The point is made by Mr Lange, who now appears for Mr Eljalkh, that Kellaway offended whilst on bail for similar matters, was a former Customs officer and so had inside knowledge of how that organisation worked, and had previous criminal convictions. Indeed, as I stated in sentencing Mr Kellaway, [he] had been in the business of making money out of drug supply since 1996.

Having regard to Mr Kellaway's situation, whilst I still regard Mr Eljalkh as a principal in the conspiracy, I have no doubt that the moving force was primarily Kellaway, and to a lesser extent McGee. Nonetheless, Mr Eljalkh was prepared to go to considerable lengths to effect the importation, by travelling to Lebanon and Europe so that it could not be said that he was a mere conduit or facilitator. It is, however, of some concern that as recently as 16 April 2010, Mr Eljalkh was continuing to minimise his part in the offending, as appears in this passage from the Probation and Parole report. 'He alleged that his only involvement was in introducing the parties, who he met through his business and at nightclubs. He maintains that he has never had anything to do with financing, sourcing or distributing drugs, and he believed that he was to take part in the importation of shoes. Alternatively, he was brokering an arms deal between Syria and China'.

The offender admitted culpability for introducing his co-offenders, and expressed regret that he did not report the matter to police when he realised that they were involved in drug importation. He stated that he was very remorseful for performing the introductions.

My remarks on sentence as to the seriousness of the offending still stand. Mr Eljalkh has served three years and ten months of a seven and a half year non-parole period imposed in the original sentence. I am satisfied that there are a number of factors that need to be taken into account in redetermining an appropriate sentence at this point in time. The first is the now plea of guilty which has had the effect of saving the community the considerable cost of retrial, as well as evincing a willingness on his part to facilitate the administration of justice. Second, is the information and sentence available in regard to the co-offender, Kellaway, as far as the question of parity is concerned. The third is the change in Mr Eljalkh's medical condition, and the fourth is the issue of delay, which has been attributable both to problems associated with my availability, and cannot be sheeted home to Mr Eljalkh.

*****

There is also a concern as to the parity of sentence between Mr Eljalkh and Mr Kellaway, although it needs to be remembered that the question of totality had to be considered in Mr Kellaway's case in determining the overall penalty that he should serve. However, I would concede that there are a number of factors that make Mr Kellaway's offending of a more serious kind than Mr Eljalkh's, despite Mr Kellaway's plea of guilty, which was quite late and resulted in a ten percent discount sentence.

The first factor is Mr Kellaway's previous record of drug offences. The second factor is the fact that Mr Kellaway offended whilst on bail for similar offences. The third is that Mr Eljalkh, although a principal, was not the driving force behind the conspiracy and was a person of prior good character, inasmuch as that can be taken into account in serious drug offences.

*****

I am not persuaded that the sentence I initially imposed in this matter is outside the appropriate range. However, having regard to the matters that I have referred to, I am going to impose a slightly different sentence."

9 It is in the context of these events and his Honour's remarks on sentence that the applicant's contentious grounds of appeal have to be considered.

Ground 1

10 In his submissions in this Court, counsel for the applicant emphasised the similarity between the head sentences of the applicant and Mr Kellaway, whilst simultaneously appearing to avoid the importance of the dissimilarity between their corresponding non-parole periods. This is unsurprising. Mr Kellaway was sentenced by his Honour to a term of 10 years and 6 months imprisonment with a non-parole period of 6 years and 9 months His Honour said that Mr Kellaway was "clearly the principal offender and had been a Customs officer and involved in drugs and prostitution over a long time". He also offended whilst on bail. He had criminal convictions and "had been in the business of making money out of drug supply since 1996". His Honour characterised Mr Kellaway as "the moving force" in the conspiracy.

11 His Honour described the applicant "as a principal in the conspiracy". He sentenced him to a term of imprisonment of 10 years with a non-parole period of 5 years and 3 months. Whereas there is only 6 months difference in the head sentences, there is a difference of 18 months in the respective non-parole periods. Notwithstanding the submissions of counsel for the applicant to the contrary, I consider that to be a significant difference. It more than adequately takes account of the differences in the roles played by the applicant on the one hand and Mr Kellaway on the other hand. Having characterised the applicant as a principal in the conspiracy, a matter that was not put in issue, there was necessarily a limit upon the extent to which his Honour could legitimately differentiate between sentences imposed on these co-offenders without doing a disservice to that description. This is not a case where the applicant was no more than a courier or someone who provided a postal address for the delivery of goods. The applicant travelled overseas for the purposes of actively promoting and facilitating the criminal purposes of the conspiracy.

12 His Honour not only did not fail to advert to the principles of parity applying to the imposition of like offenders, he specifically referred to them in the sentencing exercise. His Honour was indeed uniquely placed to understand and appreciate the interwoven and independent roles of the applicant and Mr Kellaway. Curiously his Honour had, in the events that occurred, a second opportunity to sentence the applicant. I can find no basis for concluding that his Honour infringed any of the well known principles emanating from cases such as Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 or Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 to which the applicant refers. The applicant's strong subjective factors, including his medical condition and the absence of any prior criminal history, do not to my mind indicate that any different sentence is called for in this case.

13 I do not consider that the applicant has a justifiable sense of grievance, having regard to the sentence imposed upon Mr Kellaway. In my opinion, this ground is not made out.

Ground 2

14 One of the applicant's strong subjective factors was his medical condition. His Honour referred to this in some detail in his remarks on sentence. This is what he said:

"Further evidence has been provided as to Mr Eljalkh's medical condition, about which he has also given evidence. He recently underwent a transurethral resection of the prostate... to relieve obstruction to his lower urinary tract. According to a report of Dr Bajpe of 16 September 2010, he also suffers from major depression.

Dr Bajpe is a medical practitioner with some qualifications in psychology. Mr Eljalkh suffered from prostate cancer that is reasonably controlled, but which results in ongoing urinary tract blockages. Whilst we are told that the modern reality of our prison system is capable of overcoming any difficulty, the evidence coming out of this court, via persons who have been incarcerated, is substantially different to the gloss that the Department of Corrective Services would like everyone to accept. The fact is that whilst there is a medical service within the prison system, it does not function in the same way as the system does within the community; delay is endemic, and not assisted by prisoners being transferred to different facilities, often with little or no warning. Non-urgent matters receive virtually no priority. Mr Elkaljh's illness falls into this category, and I have no doubt that it will be difficult, if he should require urgent assistance in prison. See Dr Aslan's report of 17 September 2010.

In addition, Mr Eljalkh also suffers from stomach ulcers and a hernia. I accept what Dr Chen, radiation oncologist, said of Mr Eljalkh on 7 September 2010, that it would be more difficult for Mr Eljalkh, if he remained in custody, to access medical care and treatment for his prostate cancer, and the multiple urinary tract conditions, because his symptoms may come on suddenly and he needs frequent specialist follow-ups. Treatment in custody would potentially be inferior, due to delay which could impact on the future outcome of his medical condition.

I have also been supplied, this morning, with a more recent report from Dr Aslan, who performed a further TURP recently. The report...in part, says:

'However, he has had quite blocked bladder outlet obstruction in the past which has resulted in large bladder diverticula. These are pouches coming from the back of the bladder. When I examined him last week there was a lot of redness in one of them and I went ahead and biopsied it. It showed foreign squamous metaplasia, which is a precancerous condition of the bladder, which can result in quite nasty bladder cancer. I think over the next three months or so that we should book him in to have an operation and resection of his bladder diverticula, which is going to require about a ten-day admission to hospital.'

For this or any other court to ignore the realities of imprisonment in New South Wales by passing the responsibility off to the deeply flawed public service bureaucracy, whose principal task is to keep persons in confinement, at the least cost possible, is, in my view, irresponsible and contrary to the principles the court is required to take into account in sending an individual to prison. Mr Eljalkh has ongoing physical problems akin to, but not as serious as, those mentioned in Miranda [2002] NSWCCA 89, such that this is another factor to be considered on the question of the effect of imprisonment being more onerous for him than for other, healthy inmates."

15 The applicant made the following submission in support of this ground:

"Thus, it seems highly probable that the medical condition did carry some weight in the determination of the appropriate non-parole period, but curiously, by comparison [with Mr Kellaway], very little weight, if indeed any at all, in the determination of the head sentence. By definition, any variance in the non-parole period must have an even greater impact on the head sentence, since the non-parole period must bear a proportionate relationship to the head sentence. By limiting the consideration of the applicant's medical condition to a fixing of the non-parole period, his Honour fell into error, see Withers v R [2009] NSWCCA 133 at [37] per Hulme J:

'[37] The Court was not referred to any authority that indicated that the mental illness of an offender, relevant in the way it is in this case, should be confined to the assessment of the non-parole period. Indeed, there is authority to the contrary that in an appropriate case it may be relevant to the assessment of the total sentence as well as the non-parole period: see the discussion in the judgments of Grove J in Regina v Szabo [2003] NSWCCA 341 at [14]-[16] and of Hulme J in Fisher v R [2008] NSWCCA 103 at [38]-[39].' "

16 The applicant contended that a comparison between his Honour's relevant remarks on sentence and authorities such as Withers v R [2009] NSWCCA 133 demonstrated that his Honour erred in failing to give any weight, or sufficient weight, to the applicant's medical condition when determining the appropriate head sentence. I am unable to agree. It seems to me that if his Honour was concerned in any way at all to take into account the particular subjective considerations at play in the applicant's case, his particular indifferent medical condition was paramount among them. It is once again significant that the applicant makes no challenge to the non-parole period, understandably preferring instead to concentrate upon the head sentence, of which the non-parole period forms only 52.5 percent.

17 The particular passages from R v Szabo [2003] NSWCCA 431 and Fisher v R [2008] NSWCCA 103 referred to by Hulme J in Withers bear scrutiny here. The passages from Szabo are as follows:

"[14] At the hearing the court raised the possibility of there being an error of principle discernible in a failure by the sentencing judge to take into account the medical condition of the respondent in setting the whole length of sentence rather than in simply focusing upon the non-parole period. That the respondent's medical condition is relevant to the length of sentence is well-established law. See R v Vachalec [1981] 1 NSWLR at 351. That is not to say of course that it has not often been said that such a condition is relevant to the setting of a non-parole period. We were referred to R v Sellen (1991) 57 A Crim R 313. The relevant passage is at 318 which indicates that it was the view of the court,

'If it is shown that imprisonment will cause particular hardship (either because of a pre-existing physical or mental disability of the prisoner or because of the circumstances in which the prisoner must be kept for protection) this is a circumstance to be taken into account in determining the duration of imprisonment.'

Their Honours then referred to a number of authorities.

[15] Duration of imprisonment would be taken to be a reference to length of sentence. Their Honours later said at (page 320) when proceeding to re-sentence in the particular case that it was their view that the prisoner then before them had established poor health and that this constituted special circumstances within s5(2) of the Sentencing Act as it then applied.

[16] As I have said, there is ample authority that the condition of health of a prisoner can be relevant to the setting of a non-parole period. The remarks of Brennan and Dawson JJ in R v Griffith (1989) 167 CLR 372 where their Honours gave an offender's health as an example of something that can be taken into account in setting a non-parole period was recited with approval by Spigelman CJ in R v Simpson [2001] 53 NSWLR 704 at page 713."

18 The passages from Fisher are as follows:

"[38] I have quoted from his Honour's judgment a passage that makes it clear that he recognised that the Applicant had serious health issues and took those into account in making a finding of special circumstances. It was submitted on behalf of the Applicant that the Applicant's condition and recognition his Honour expressly gave to the fact that treatment in prison might not be of the same standard as is available in the community, that the Applicant's condition meant that he would be in protective custody, and his imprisonment more onerous than for the average prisoner should also have been taken into account in the determination of the head sentence. In this connection reference was made to remarks made in R v Vachalec (1981) 1 NSWLR 351 at 353; McDonald (1988) A Crim R 470; Hameed (2001) 123 A Crim R 213 at [58] and R v Baraket [2004] NSWCCA 201 at [30], [31] and [33].

[39] I agree with the submission. However, it is clear that his Honour did take these matters into account. When he was directing attention to the Applicant's subjective factors, and before he came to deal with the topic of special circumstances, his Honour specifically addressed the Applicant's health and the specific factors mentioned above. There is just no basis for the conclusion that his Honour failed to consider the Applicant's medical condition in determining the appropriate head sentence. This ground fails."

19 This is also a case in which his Honour directed his attention to the applicant's medical condition. He did so in considerable detail and in association with remarks that could only be interpreted as sympathetic to the applicant. A submission that his Honour gave insufficient weight to a matter, such as a medical condition, suffers from the problem that it requires the proponent of the submission to identify one or other of the factors emphasised in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. There is no suggestion in this case, for example, that the learned sentencing judge acted upon a wrong principle, was guided or affected by extraneous matters, was mistaken about the facts or failed to take account of some material consideration. No errors of this kind are specifically identified. Having regard to his Honour's remarks on sentence, this is unsurprising. I am not satisfied that any such errors exist.

20 This ground of appeal fails.

Ground 3

21 Ground 3 is infelicitously expressed but distils to the proposition that the applicant's medical condition has deteriorated in a way that was not capable of being appreciated when the sentence was passed and so as to warrant the imposition of a lesser sentence now. The applicant made the following submissions.

22 First, although the jurisdiction of this Court is narrowly confined to remedying errors of law, it may nevertheless, in certain circumstances, take into account events that occurred after the imposition of the sentence under challenge. The circumstances were recently summarised by this Court in Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 at [46]-[48]. The applicant submitted that evidence of the deterioration of his medical condition, as well as his inability to obtain the necessary medical treatment in custody, were matters that may properly be taken into account as "fresh evidence" on appeal. The applicant now suffers from increased urinary incontinence and considerable pain. These are matters that the applicant contended would, if then known, have had a considerable impact upon his Honour's sentencing discretion.

23 His Honour noted that the applicant suffered from prostate cancer that was reasonably controlled but which resulted in ongoing urinary tract blockages. The applicant's affidavit sworn 11 October 2011 annexes the medical report of Dr Aslan dated 30 September 2010 to which his Honour referred. The applicant says that he has "constant pain in [his] lower stomach when crouching" and "bad urine flow and leaking which is associated with [his] prostate condition". He also deposes to his considerable efforts to secure appropriate and timely medical care and attention. Extraordinarily, none of his efforts has yielded the slightest success. That includes the fact that he has not yet had the operation on his pre-cancerous bladder condition to which Dr Aslan's report refers.

24 Unfortunately, the applicant's current medical condition is not different to what was foreshadowed at the time of his sentence. Indeed, the prospect of deterioration and the need for treatment to ameliorate the applicant's condition and its symptoms were implicitly contemplated by his Honour's remarks. The prospect of an operation to deal with his condition was very much in the contemplation of the learned sentencing judge. The manifestation of the applicant's current plight does not mean that with hindsight a different sentence is now warranted. I am not satisfied that the effect of the post-sentence events is such as to underline something that was not fully appreciated at the time of the sentencing in the sense discussed in R v BEG [2001] NSWCCA 341 at [26] and R v Keir [2004] NSWCCA 106 at [78]. It has not been difficult or practically impossible to manage the applicant's medical condition adequately in gaol. The simple and unfortunate fact is that it just has not happened, in the rather prescient way discussed by his Honour at the time of sentencing. That is a matter for consideration under Ground 4.

25 This ground is not made out.

Ground 4

26 The applicant was sentenced over a year ago. His precancerous condition should have alerted the prison authorities to his need for urgent intervention. The fact that the applicant was unlikely to receive proper or adequate treatment, or medical care and attention, was specifically considered by his Honour. Both sides in this Court have referred to the oft cited passage from R v Vachalec (1981) 1 NSWLR 351 at 353-354 in these terms:

"...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."

27 Comments to a like effect were made by Street CJ in R v Munday (1981) 2 NSWLR 177 at 178 in the terms:

"It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court. It would seem to me, therefore, that, as the essential first step in the argument Mr Purnell foreshadows on the merits would involve this Court trespassing into the function of the executive Government, the case is not one in which there should be granted the very lengthy extension of time which is the prerequisite to the hearing of the challenge to the sentences."

28 The applicant submitted that his Honour felt unable to take into consideration the likelihood, or more particularly the unlikelihood, that the applicant would be treated in custody, minimising any deterioration in his condition. He further submitted that it was now entirely proper for this Court to consider the fact that he has not received the required medical attention. The applicant contended that to the extent that Vachalec stood in the way of such a submission, it and cases like it no longer represented good law in New South Wales.

29 It can be accepted that the Department of Corrective Services owes a duty of care to inmates in its custody. That was so at common law (see generally New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1) and is also recognised in the terms of s 72A of the Crimes (Administration of Sentences) Act 1999 . The applicant contends that there has been a failure by the Department to comply with the duty and this statutory provision. He points to what is revealed in his affidavit. The relevant portions are as follows:

"2. On 1 October 2010, I was sentenced to a term of imprisonment and entered custody on that day.

3. The first opportunity I was afforded to speak with a doctor after having entered custody was at the Silverwater Correctional Centre on 4 October 2010. On that day, I provided the doctor with a letter from Dr Aslan dated 30 September 2010. Annexed hereto and marked with the letter 'A' is a true copy of that letter.

4. This doctor at the Silverwater Correctional Centre took a copy of the letter and put it in my file.

5. On 8 October 2010 I was moved to the Dawn DeLoas Correctional Centre, where I was seen by a nurse. This nurse also took a copy of the letter from Dr Aslan and took some notes in relation to my general health.

6. On 9 October 2010 I saw a doctor and a copy of Dr Aslan's letter was taken and put in my file. This doctor informed me that she would be conducting the required tests.

7. I was moved from the Dawn DeLoas Correctional Centre on 12 November 2010 to the Long Bay Correctional Centre before any tests were performed.

8. On 15 November 2010 I saw a doctor at the Long Bay Correctional Centre, and she also took a copy of Dr Aslan's letter dated 30 September 2010 and put it in my file.

9. That doctor informed me that she would book me in to see a specialist at the Prince of Wales Hospital. She told me this could take up to three months.

10. During the consultation with the doctor at Long Bay Correctional Centre on 15 November 2010 I told the doctor about my bladder, prostate and hernia conditions.

11. I visited the same doctor sometime in December 2010 to enquire about patches to stop smoking. During this visit I enquired about my appointment at the Prince of Wales Hospital, and was informed that I was on a waiting list.

12. I have also spoken to my case officer, Mr Bob Tracy, and shown him the letter from Dr Aslan.

13. In early February 2011 I was assigned a new case officer, named Sam. I do not know his last name. Sam told me that he spoke to the clinic and then said words to the effect 'it is all by turn, no one is more important than anyone else'.

14. On 19 April 2011, I requested to see a doctor and was told that there would be no doctor for two weeks.

15. My condition is getting worse, and I have constant pain in my lower stomach when crouching, Furthermore, I have bad urine flow and leaking which is associated with my prostate condition.

16. Around the end of May, I saw two nurses at the Long Bay Correctional Centre; these nurses were from the Silverwater Correctional Centre, and I showed them the letter from Dr Aslan. They said that they would organise for me to see my specialist, Dr Aslan, within two months.

17. Also around this time I was told that Dr Aslan had booked a bed for me at St George Hospital to have my bladder operation. I know this because St George Hospital called Dr Bajpe, my family GP, sometime in late June 2011 to confirm that a bed will be available for me to have my bladder operation in July 2011. Dr Bajpe contacted my son David Jalkh. He in turn called me, and told me that I needed to confirm that I would be attending the St George Hospital. I told my son that the prison would have to confirm that.

18. I work at the Long Bay Cafe, and four or five days after speaking with my son, David, a nurse whose name was Bloss said that she had some paperwork for me to sign. She said that it had something to do with Dr Aslan but nothing else. She said she would bring the papers for me to sign.

19. I never received that paperwork. I have never seen Dr Aslan, and I have never been to the St George Hospital.

20. About five weeks ago, I approached that same nurse whilst working at Long Bay Cafe and asked her what had happened to the papers and if there was anything for me to sign. I also asked her if there were any dates for me to attend the St George Hospital or to visit Dr Aslan. She said that she would get back to me in a couple of days.

21. Two days later at the cafe she said there was nothing booked in for me. I asked if there were any papers to sign, and she said that she would have to check. To date I have not heard anything back from this nurse or anyone else.

22. On 10 August 2011, I attended the Prince of Wales Hospital. The doctor only spoke to me in the waiting room. I asked him if he had seen the letter from Dr Aslan dated 30 September 2010, and he said that he had not. He said that he only had notes from the prison doctor. I told him that I believed that I was going to see my specialist, Dr Aslan, within the next week or two as that is what I had been told. The doctor said that it would be best to wait and see Dr Aslan. I saw the doctor at Prince of Wales for a maximum of four minutes.

23. I am still waiting to see Dr Aslan or to have any tests or treatment."

30 The material in that affidavit was tendered by the applicant to be read both in circumstances where this Court was minded to resentence and as fresh evidence that could be taken into account as previously discussed. The Crown objected to this material and did not have an opportunity to cross-examine the applicant upon his affidavit. There is no basis therefore to assume the accuracy of the matters to which the applicant has deposed.

31 However, whilst I am not persuaded that this is a case in which it is appropriate to divert from the approach outlined in Vachalec , I am considerably troubled by the unsatisfactory attention that appears to have been paid by the prison authorities to the applicant's medical problems, upon the assumption that the matters deposed to by the applicant are true. This is particularly so when regard is had to the fact that the learned sentencing judge went into unambiguous detail about what he feared might occur, presumably unless comments of the sort that he made were published at length. If the way in which the applicant contends his medical affairs have been responded to in gaol are an accurate guide, his Honour's comments would appear to have fallen on deaf ears.

32 In Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 at [265], Campbell JA commented that "[i]t would ignore reality for a court to proceed upon the basis that a statutory authority should be taken to have sufficient resources to carry out all its statutory duties, powers and discretions". In the present case there is nothing to suggest that the treatment, or lack of it, received by the applicant, had anything to do with the unavailability of resources. It is also unknown whether or not it is the result of flaws in the bureaucracy to which his Honour specifically adverted. Whatever may be the true position regarding the applicant's assertions, it is apparent that the applicant suffers from a potentially very serious and treatable condition, which on one view may for all practical intents and purposes have been effectively ignored by those with the responsibility for his care. The consequences, if any, flowing from that remain to be seen.

33 I would endorse the learned sentencing judge's comments. It is trite to observe that offenders are sent to gaol as punishment, not for punishment. In the present case, that translates to an expectation that the applicant would be properly and adequately cared for and that his particular medical condition would be attended to in accordance with prevailing medical and therapeutic standards applying generally in the community. On one view of the evidence available to this Court, that would not appear to have occurred. The matter certainly calls for some attention.

34 I am not satisfied that that apparent failure results in a conclusion that his Honour's sentencing discretion miscarried. Indeed, it was with a degree of patent frustration that his Honour imposed the sentence that he did in the expectation, almost approaching certainty, that his criticisms of the Department would not generate any action benefiting the applicant. He obviously took these matters into account when passing sentence.

35 I do not consider that his Honour fell into error in approaching the matter in the way that he did.

Conclusion

36 It follows from the error identified in Ground 5 that the appeal should be allowed and that the applicant should be resentenced. I consider that the following orders should be made:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed upon the applicant by Williams DCJ on 1 October 2010 and in lieu thereof sentence the applicant to a term of imprisonment of 10 years commencing on 24 November 2006 and expiring on 23 November 2016 with a non-parole period of 5 years and 3 months commencing on 24 November 2006 and expiring on 23 February 2012.

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Decision last updated: 04 November 2011