Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Reeves [2014] NSWCCA 154
• Hearing dates: 23 May 2014
• Decision date: 18 August 2014
• Before: Bathurst CJ; Hall J; R A Hulme J

Decision

(1) Crown appeal against sentence allowed.

(2) Sentences imposed by the District Court on 1 July 2011 be set aside.

(3) The respondent is re-sentenced as follows:

(i) In respect of the offence of dishonestly obtain benefit by deception contrary to s 178BA of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013.

(ii) In respect of the offence of aggravated indecent assault of CA contrary to s 61M(1) of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013.

(iii) In respect of the offence of maliciously inflict grievous bodily harm with intent contrary to s 33 of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year commencing on 1 June 2013 and expiring on 31 May 2014 with a parole period of 2 years to expire on 31 May 2016.

(4) The Court notes that the non-parole period in respect of the sentence in (iii) above expired on 31 May 2014. Accordingly, the respondent is to remain on parole.

• Catchwords: CRIMINAL LAW - Crown appeal against sentence - further hearing of appeal on remittal from the High Court of Australia - sentence imposed at first instance was manifestly inadequate - exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 - consideration of factors relevant to the exercise of the residual discretion - respondent's deteriorating health since sentencing - the effect of re-sentencing on the respondent's rehabilitation - expiration of the non-parole period imposed at first instance - delay in hearing of the appeal - time spent in quasi custody - respondent re-sentenced
• Legislation Cited: Crimes Act 1900 (NSW); Criminal Appeal Act 1912 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW)
• Cases Cited: Brown v R [2013] NSWCCA 44; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634; Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; R v Allpass (1993) 72 A Crim R 561; R v Anderson [2012] NSWCCA 175; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; R v Deng [2007] NSWCCA 216; 176 A Crim R 1; R v DKL [2013] NSWCCA 233; R v Hansel [2004] NSWCCA 436; R v Hernando [2002] NSWCCA 489; 136 A Crim R 451; R v JW [2010] NSWCCA 49; 77 NSWLR 7; R v Todorovic [2008] NSWCCA 49; R v Tortell [2007] NSWCCA 313; R v Yang [2002] NSWCCA 464; 135 A Crim R 237; Reeves v R; R v Reeves [2013] NSWCCA 34; Reeves v The Queen [2013] HCA 57; 88 ALJR 215; Renshaw v R [2012] NSWCCA 91
• Category: Principal judgment
• Parties: Regina (Appellant); Graeme Stephen Reeves (Respondent)
• Representation: Counsel: P Ingram SC (Crown); G Bashir; S Beckett (Respondent); Solicitors: Solicitor for Public Prosecutions (Crown); Legal Aid Commission (Respondent)
• File Number(s): 2008/77882

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-07-01 00:00:00
• Before: Woods QC DCJ
• File Number(s): 2008/77882

Judgment

1 THE COURT: On 21 February 2013 this Court dismissed an appeal by Graeme Reeves (the respondent) against his conviction in the District Court for three offences and allowed a Crown appeal against the inadequacy of the sentences that had been imposed; Reeves v R; R v Reeves [2013] NSWCCA 34. (An appeal against conviction for a fourth offence was allowed but that is presently irrelevant.)

2 On 18 December 2013 the High Court of Australia upheld the respondent's appeal concerning the resentencing by this Court on the basis that it had not given consideration to the possible exercise of the residual discretion to dismiss a Crown appeal notwithstanding the inadequacy of a sentence: Reeves v The Queen [2013] HCA 57; 88 ALJR 215.

3 The High Court remitted the proceedings to this Court for further consideration of the Crown appeal against sentence "in accordance with the reasons of the Court": Reeves v The Queen, supra, at [62].

Sentencing History

4 The history of the proceedings, particularly those relating to the sentencing of the respondent, may be found in the first judgment of this Court. So too are the relevant objective facts and subjective factors as they existed at the time of that judgment. It is sufficient for present purposes to note that the original sentences imposed in the District Court on 1 July 2011 were as follows:

(1) In respect of the offence of dishonestly obtaining a benefit by deception (s 178BA Crimes Act 1900 (NSW)), a fixed term of imprisonment for 12 months commencing 1 June 2011 and expiring on 31 May 2012.

(2) In respect of the offences of aggravated indecent assault (s 61M(1) Crimes Act), fixed terms of imprisonment for 1 year 6 months commencing 1 December 2011 and expiring on 31 May 2013, both concurrent to each other.

(3) In respect of the offence of maliciously inflict grievous bodily harm with intent (s 33(1) Crimes Act), a term of imprisonment comprising a non-parole period of 1 year commencing 1 June 2012 and expiring on 31 May 2013 with a balance of term of 1 year 6 months expiring on 30 November 2014.

5 The sentences imposed by the District Court resulted in an effective term of imprisonment of 3 years 6 months, comprising a non-parole period of 2 years commencing 1 June 2011 and expiring on 31 May 2013, with a balance of term of 1 year 6 months expiring on 30 November 2014.

6 In respect of the Crown appeal against sentence, the Court allowed the appeal and re-sentenced the respondent as follows:

(1) In respect of the s 178BA offence, a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and expiring on 31 August 2012 with a parole period of 6 months expiring on 28 February 2013.

(2) In respect of the s 61M(1) offence, a term of imprisonment comprising a non-parole period of 1 year 2 months commencing on 1 June 2012 and expiring on 31 July 2013 and a parole period of 4 months expiring on 30 November 2013.

(3) In respect of the s 33(1) offence, a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years expiring on 30 November 2016.

7 As a result of the sentences imposed by this Court, the first date upon which the respondent would have become eligible for release on parole was 30 November 2014. Accordingly, the respondent's effective non-parole period was increased by 1 year 6 months.

Respondent's Release on Parole

8 In consequence of the High Court setting aside the orders of this Court, the original sentences imposed by the District Court were revived. The respondent (who was originally eligible for release to parole on 31 May 2013) was released on parole on 20 December 2013.

9 As at the date of his release, the respondent had served approximately 2 years 7 months (including the entire combined 2 year non-parole period imposed by the District Court) in full-time custody.

10 Since his release on parole, the respondent has been residing at a Community Offender Support Program ("COSP") centre and subject to a number of conditions and requirements, including:

(1) a curfew between 6.00am and 6.00pm;

(2) random drug and alcohol testing;

(3) participating in COSP programs and meetings as instructed;

(4) random room and personal belonging searches;

(5) undertaking community work and chores;

(6) compliance with directions of staff;

(7) provision of phone numbers to staff, with records kept of contacts;

(8) giving at least 24 hours' notice of plans to be absent from the COSP centre;

(9) a need to obtain approval to leave the COSP centre;

(10) personal searches upon return to the COSP centre;

(11) provision of receipts in respect of all purchases;

(12) meeting with one of his two case managers each fortnight to discuss and review his budget (which can result in sanctions);

(13) an inability to socialise with residents residing in certain parts of the COSP centre; and

(14) an inability to keep his own medication.

The Residual Discretion

11 Section 5D(1) of the Criminal Appeal Act 1912 (NSW) provides:

"The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper." (emphasis added)

12 Accordingly, where error has been identified in a Crown appeal, the Court is not obliged to re-sentence a respondent. There remains a discretion to refuse or decline to interfere with a sentence even though the sentence is erroneously lenient: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [2]; R v JW [2010] NSWCCA 49; 77 NSWLR 7. That discretion has become known as the "residual discretion".

13 In exercising the residual discretion, it is for the appellate court to answer two questions:

(1) Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from.

(2) To what extent, if the appeal is allowed, the sentence appealed from should be varied: Green v R; Quinn v R at [35].

14 In Green v R; Quinn v R it was noted by the plurality (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen [1997] HCA 44; 137 CLR 293 at 310 [53] (Barwick CJ), that the primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. This was similarly expressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]:

"... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong."

15 This purpose is a "limiting purpose" that does not extend to the general correction of errors made by sentencing judges. Rather, it provides a framework within which to assess the significance of factors relevant to the exercise of the discretion: Green v R; Quinn v R at [36].

16 Accordingly, it has been held that it may be appropriate for the appellate court, in the exercise of its discretion, to dismiss a Crown appeal where "circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice": Green v R; Quinn v R at [2].

17 Additional factors that may favour the exercise of the residual discretion include:

• Delay by the Crown in lodging the appeal: R v Hernando [2002] NSWCCA 489; 136 A Crim R 451; R v JW, supra.
• The deteriorating health of the respondent since sentence: R v Yang [2002] NSWCCA 464; 135 A Crim R 237 at [46]; R v Hansel [2004] NSWCCA 436 at [44].
• The fact that the non-parole period imposed at first instance has already expired (R v Hernando), or the fact that the respondent's release on parole is imminent (Green v R; Quinn v R).
• The fact that the respondent has made substantial progress towards rehabilitation: R v Tortell [2007] NSWCCA 313 at [63].
• The "effect of re-sentencing on progress towards the respondent's rehabilitation": Green v R; Quinn v R at [43].

18 These circumstances are by no means exhaustive: Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634 at [100].

19 In determining whether or not to exercise the residual discretion, it is open for the appellate court to look at material available at the time of the hearing of the appeal: R v Deng [2007] NSWCCA 216; 176 A Crim R 1 at [28]; R v Todorovic [2008] NSWCCA 49 at [32]. Accordingly, the appellate court is not required to put itself back in the position of the sentencing judge at the moment of conviction:

"If a Crown appeal against sentence is successful, and the appellant court resentences the respondent, it does so in light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant." (R v Allpass (1993) 72 A Crim R 561 at 562).

Submissions for the Respondent

20 In written submissions on the further hearing of the appeal before this Court the respondent submitted the material facts supporting the exercise of the residual discretion were:

(a) The failure of the appellant on the first appeal to address in any meaningful way, factors relevant to the exercise of the discretion (cf. Crown submissions on the appeal para [117]).

(b) The failure of the appellant to prosecute this appeal on remitter in a timely manner, having regard to the late gathering of evidence and the late service of the submissions (received 10 days shy of the hearing of the appeal).

(c) The errors of this Court as conceded by the [appellant] in the High Court in failing to have regard to the residual discretion and failing to have regard to relevant evidence before the Court relating to the residual discretion, and the re-sentencing discretion.

(d) Incarceration in full time imprisonment for a period of approximately 7 months as a result of such errors.

(e) The respondent's relatively imminent release from custody at the time of the imposition of the second sentences by this Court without having regard to the residual discretion.

(f) The concession of the prosecutor only subsequent to the referral of the application for special leave to appeal to an enlarged bench of the High Court.

(g) The respondent's release from custody to parole without continuity and oversight of medical care ensured, despite knowledge of his serious medical condition by the authorities.

(h) The declining health situation of the respondent in evidence before this Court previously, which this Court did not refer to.

(i) The fact that the original and redetermined sentences for the s 61M and s 178BA counts had expired prior to the appeal concerning sentence being upheld by the High Court.

(j) The fact that on the s 33 count, as at the time the High Court determined his appeal the respondent had served the entire custodial component of the original sentence and slightly more than half of that imposed by this Court.

(k) The exacerbation of the respondent's mental health state as a result of the process.

(l) The anxiety, distress and uncertainty the respondent has suffered and continues to suffer, particularly the imminence of his release on the last occasion, the re-establishment of himself in the community and the prospect of a return to custody in his particular circumstances.

(m) The service of parole in circumstances that are akin to 'quasi-custody' since the respondent's release to parole.

(n) The extra-curial punishment that has been visited on the respondent.

(o) The unusual and unique nature of the offences and the denunciation of the conduct by both the sentencing judge, this Court and High Court, coupled with publicity attending the matter, is such that the purpose of general deterrence has been served.

(p) The deregistration of the respondent is such that the purpose of specific deterrence has been served, as has protection of the community.

(q) The extent of the inadequacy of the original sentence, having regard to the health of the respondent, the conditions he experienced in full time custody and other mitigating features is diminished.

21 It was also submitted that the period in which the respondent has been held in custody is sufficient to fulfil all the purposes of sentence: s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

22 On behalf of the respondent it was submitted that there was considerable significance in the above factors in the context of the limiting purpose of Crown appeals.

Submissions for the Crown

23 The Crown in its written submissions observed that for this Court to now determine the Crown appeal in conformity with the High Court's reasons, it would have regard, amongst other matters, to the evidence:

"a. that the Respondent was released to parole on 20 December 2013 and has remained on parole thereafter;

b. concerning the current state of the physical and mental health of the Respondent; and,

c. concerning the nature and extent of health care services and facilities that would be made available to the Respondent in the event that he is returned to custody." (at [15])

24 The Crown acknowledged that the fact that the respondent has been on parole for a number of months and that he would have to be returned to custody to serve the balance of any new non-parole period that might be imposed in the event of the success of the Crown appeal, are both circumstances that this Court may consider when determining whether the residual discretion to dismiss the Crown appeal should be exercised: at [17].

25 However, the Crown submitted that the Court would be satisfied that the residual discretion should not be exercised by reason of either or both those considerations: at [18].

26 The Crown addressed in detail certain aspects of the medical evidence, including in particular the evidence of Dr Luxton, the respondent's treating specialist in renal medicine, which included five questions that had been posed for his consideration and which are reproduced later in this judgment.

27 The Crown noted that Dr Luxton had stated that both modes of dialysis (haemodialysis and peritoneal dialysis) were available to persons in custody.

28 In addition the Crown referred to the report of Dr Nielssen, psychiatrist, details of which are discussed below. It was observed in the Crown's submissions that Dr Nielssen noted a well-documented history of chronic depressive illness suffered by the respondent. Dr Nielssen also noted that the respondent had reported concerns about access to an adequate standard of medical treatment if he was to be returned to custody, as well as asserted inadequacies in the availability of specialist review while in custody.

29 The Crown's submission was that the Court would be satisfied that suitable treatment for renal dialysis, depression and any other medical needs would be met in the event that the respondent were to return to custody: at [42].

30 The Crown further submitted that having regard to all of the relevant considerations, the Court would remain satisfied that the sentences imposed by the District Court were manifestly inadequate.

31 Taking into account all the medical and other evidence, the Crown submitted that the Court would be satisfied that "suitable arrangements" were previously in place and would be made available in the future to provide for the appropriate treatment and management of the various medical needs of the respondent whilst in custody. This, it was said, would include the provision of suitable treatment for his kidney disease by the provision of renal dialysis as well as treatment for his depressive disorder: at [44].

32 The Crown's further submission was that the Court would be satisfied that those arrangements were such that neither the medical needs of the respondent nor the provision of the requisite treatment in a custodial setting would result in the sentence being more burdensome upon the respondent: at [45].

33 In relation to the sentences previously imposed, it was submitted that the Court would also be satisfied that the individual and total sentences originally imposed by this Court would remain appropriate having due regard to all relevant considerations, including the evidence concerning the health issues of the respondent.

34 In its concluding submissions the Crown submitted that this Court should make orders upholding the Crown appeal and impose new sentences which made provision for individual and a total term and non-parole periods of equivalent duration to those that were originally imposed by this Court.

Delay

35 The respondent was first arrested and charged for the s 33(1) offence on 10 September 2008. He was charged for the other offences on 15 December 2009. He was initially sentenced on 1 July 2011 and the Crown appeal was filed on 18 July 2011.

36 The appeal was heard by this Court on 13 August 2012. Judgment was delivered on 21 February 2013.

37 The respondent submitted that this delay occurred through no fault on his part, but it must be accepted that the lodgement of his appeals against conviction on 29 February 2012 and 2 April 2012 contributed to it. In any event, it was submitted (and we accept) that regardless of fault, the overall delay (being now over five and a half years since the initial charges) "is such that the respondent now faces the prospect of a return to custody, having already served a significant portion of his sentence": at [67].

38 In Green v R; Quinn v R, supra, Bell J observed at [131]:

"The delay in the appellate process was not due to neglect by the Crown. The appellants applied for, and the Crown opposed, the adjournment of the appeals. Nonetheless, the appellants' progress to reform and the closeness to the date of their eligibility for parole were matters that the Court of Criminal Appeal was entitled to take into account as reasons for dismissing the appeals in the exercise of the residual discretion. However, the exercise of that discretion was a matter for the Court of Criminal Appeal..."

The effect of re-sentencing on the respondent's rehabilitation

39 In his affidavit affirmed on 17 July 2012, the respondent noted the following:

• He was hoping to work on his Masters degree while in custody, but that this was not possible due to the restricted access to computers.
• He hoped to complete his Masters degree upon release, and in the meantime, he continued to assist teaching adult literacy.
• In custody he worked as a garbage man, six days per week.
• He then obtained fulltime employment in the bakery.

40 The respondent has since completed his Masters degree in Medicine and Human Genetics.

41 In the written submissions for the respondent it was argued that he has worked towards re-integrating himself into the community, including by participating in programs and being employed whilst in custody, and with his family. He has also made arrangements for his ongoing medical treatment and arrangements for surgery: at [68].

42 It was additionally submitted for the respondent that the present parole conditions amounted to "quasi custody". The respondent has been subject to these conditions since his release in December 2013. These conditions are outlined at [10] above.

43 The respondent observed that in Renshaw v R [2012] NSWCCA 91, Hoeben JA held that although the sentencing judge had taken into account the positive effect of rehabilitation while in a rehabilitation centre, it was an error for him not to take into account time actually spent in that centre. The sentence was restructured by backdating the sentence to take that time into account at a ratio of approximately 50%.

44 In R v Anderson [2012] NSWCCA 175 it was observed that "in appropriate circumstances an allowance can be made for periods on bail and the harshness of, or restrictions on liberty by, conditions on bail": at [2]. This allowance gives rise to a discretionary range of credit to be given for between 50% and 75% of actual time spent in rehabilitation: Brown v R [2013] NSWCCA 44.

45 This is a matter in the present appeal to which appropriate weight should be given.

Evidence previously before the Court concerning the respondent's health

46 The relevance of a respondent's deteriorating health was considered a factor relevant to the exercise of the residual discretion in Director of Public Prosecutions v Karazisis, supra:

"The Court will be reluctant to disturb that situation...where there has been a significant deterioration in the respondent's health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal." (at [108])

47 The evidence previously before this Court included the affidavits of Ms Janet Witmer, solicitor for the respondent, and Mrs Sharon Reeves, the respondent's wife. Annexed to Ms Witmer's affidavit were letters from Dr Baguley, Medical Officer at Junee Correctional Centre dated 8 June 2012, and Dr Badami, Staff Specialist dated 23 March 2012.

48 Dr Baguley wrote that the respondent:

"...has renal failure and he is going to need renal dialysis very soon. He will need to be seen very regularly at Prince of Wales Hospital in Randwick in preparation for this, and then ongoingly for dialysis at least twice weekly. To this end he needs to be placed in a metropolitan gaol for such access and treatment to occur. Without this treatment he will die. It cannot occur in the country".

49 The respondent's affidavit affirmed 17 July 2012 indicated that he had been at Long Bay since June 2012. However, according to his evidence he had, as at the date of his affidavit, not received treatment from the renal clinic at Prince of Wales Hospital, as had been recommended.

50 Dr Badami recorded that the respondent may need dialysis in the future and that he has other "vascular risk factors such as hypertension and Hypercholesterolaemia". As a result, "his prognosis will depend on his stability".

51 On 1 August 2012, the Nursing Unit Manager at Long Bay indicated in a letter that diabetic diets were unavailable at Long Bay, but that she would ask for the respondent to be reviewed to receive a "renal diet" (Annexure "D" to Affidavit of Ms Gabrielle Drennan sworn 9 August 2012). The respondent submitted that it may be inferred from that at least as at 1 August 2012, the respondent was not on an appropriate diet while in custody, despite his multiple medical conditions: at [50].

52 On 3 August 2012, Dr Ette, Associate Clinical Director Primary & Women's Health with Justice Health, wrote to the Director of Public Prosecutions. In that letter, Dr Ette noted that the respondent "has Micro and Macro vascular disease, Chronic Kidney Disease, Type 2 Diabetes, Hypertension, Hypercholesterolaemia, Benign prostatic Hypertrophy and Depression".

Up-to-date evidence concerning the respondent's health

53 Ms Drennan's affidavit sworn 20 May 2014 annexed a letter from Justice Health regarding suitable treatment options available for the respondent, should he return to custody.

54 Ms Witmer's affidavit of 8 April 2014 annexed a report of Dr Grant Luxton, specialist in renal medicine, dated 27 February 2014. Dr Luxton observed that the respondent's current diagnosis is end-stage kidney disease (CKD stage V) due to diabetic nephropathy. Although the respondent was due to start dialysis in the first months of 2014, as a result of his progressive deterioration and severe symptoms of kidney failure, Dr Luxton directed that he commence haemodialysis on 6 February 2014. Dr Luxton noted that "although he has improved from the time of his admission he is still not very well with lethargy, fatigue and depressed mood".

55 The respondent currently undergoes haemodialysis three days a week. He has also been prescribed a number of medications for high blood pressure, gout, elevated cholesterol, depression, anaemia and calcium balance as well as insulin injections for his diabetes. Dr Luxton considered that his prognosis "is guarded". Although his symptoms should slowly improve, it is likely that symptoms of fatigue and reduced exercise capacity will persist. Dr Luxton noted that the life expectancy of patients on dialysis is "significantly reduced, more so in people with diabetes due to a high incidence of heart disease, stroke and infection". Dr Luxton further advised that the respondent would require surgery in April/May 2014.

56 Dr Luxton was asked to address a number of questions and provided answers in his report as follows:

"1. Would custody have had an impact on his condition and the timing and nature of his treatment?

Yes - there was some delay in him being referred to the renal clinic and earlier referral could have allowed us to initiate treatment that may have delayed progression of his kidney disease. There were also problems in arranging timely follow-up and in the transmission and activation of recommended changes in treatment. There were problems in him receiving adequate treatment of his blood pressure and receiving an appropriate diet.

2. At what percentage is dialysis usually commenced?

Dialysis is usually initiated when the patient has significant symptoms which is usually around 10% or less of kidney function. He did not need to start dialysis when in custody however he was discharged into the community without follow-up plans and this may have contributed to his emergency presentation and urgent initiation of dialysis.

3. What percentage of kidney function did [he] have when he went on dialysis?

This was 3% - dangerously low. It was 7% when last checked in November 2013.

4. Differences in treatment in custody and not in custody?

Both modalities of dialysis (haemodialysis and peritoneal dialysis) are available in custody. There is a haemodialysis unit at Long Bay. The dialysis provision is the same as outside in terms of machinery and nursing staff. However access to renal trained medical staff is not available and there have been difficulty in dialysis patients accessing appropriate diets and provision of medications at the correct times. Changes in treatment tend to be slower due to the need to communicate with the renal unit at [Prince of Wales].

5. Is surgery required for home dialysis?

Yes - he will need abdominal surgery for placement of a peritoneal dialysis catheter. This has been deferred till he is more stable - probably in the next two months."

57 Dr Olav Nielssen, psychiatrist, interviewed the respondent on 17 March 2014. He had previously provided reports dated 14 June 2011 and 31 July 2012. Dr Nielssen noted the respondent's history of becoming more depressed since being transferred to the COSP centre, despite being able to go out during the day and attend to his own health care. The respondent also expressed "what seemed to be realistic concerns" about access to an adequate standard of treatment if he were to return to full time custody. Further, that his preferred method of dialysis was peritoneal dialysis, but that he was not eligible for that method while living at the COSP centre, as it required having an en suite bathroom that was not shared with another person.

58 On examination, Dr Nielssen observed that there were no signs of neurological disorder and his cognitive function seemed to be unimpaired, but that his underlying mood was assessed to be anxious and depressed from his demeanour and the quality of his responses.

59 Dr Nielssen's opinion was that the respondent was experiencing a relapse of chronic depressive illness. Factors contributing to this recurrence "include his disappointment at the lack of support from his family after his release, the progression of his kidney disease, the current circumstances of his detention and his anxiety about his future".

60 Dr Nielssen noted that the respondent had continued to take the antidepressant sertraline (Zoloft) at the minimum dose of 50mg per day, prescribed by his general practitioner at Little Bay. The respondent told Dr Nielssen that he had considered asking to have the dose increased as he was aware of the return of symptoms of depression in the form of increased anxiety, lack of sleep, low energy and pessimism about the future.

61 Since the hearing of the first appeal, the respondent's wife visited him every three or four weeks whilst he was at a metropolitan gaol. During these visits she "noticed his worsening bad health", including being more depressed and anxious: affidavit of Sharon Reeves affirmed 17 April 2014.

62 In his affidavit affirmed on 2 April 2014 the respondent stated that he was anxious about returning to custody as he was concerned about his medical condition and frustrated by difficulties he experienced in getting timely attention whilst he was in custody.

63 The respondent submitted that the "combined impact" of the medical evidence available on the remittal hearing:

"...is that gaol has had a crushing impact on the respondent, his mental and physical health have declined to a substantial extent during the period of his sentence and particularly since the hearing of the CCA appeal." (at [53])

64 In R v Hansel [2004] NSWCCA 436, Sully J (with whom Hidden and Howie JJ agreed) observed in respect of a man suffering from lymphoma, for which he had received chemotherapy, and other medical conditions, "no appellate Court could lightly send now into full-time custody a person with those health conditions and problems": at [44]. The Court proceeded to apply the residual discretion, observing that the prospect of an inadequate sentence "cannot be allowed to overwhelm what justice requires in the particular case": at [45]. Similarly, in R v DKL [2013] NSWCCA 233 this Court exercised the residual discretion on the basis of deterioration to the respondent's mental and physical health since the commencement of his incarceration, notwithstanding the manifest inadequacy of the sentence imposed.

Time in quasi-custody

65 The conditions under which the respondent has lived following release on 20 December 2013 may be properly characterised as quasi-custody. In particular, he has been required to abide by a curfew between 6.00am and 6.00pm and has submitted to stringent conditions of residence. We accept that the conditions are similar to those that operate in certain rehabilitation programs and warrants a reduction in any sentence that might be imposed.

Conclusion

66 For reasons outlined in this Court's previous judgment, the sentences imposed by the District Court were manifestly inadequate. However, it is for this Court to now consider, notwithstanding that finding, whether the Crown appeal should nonetheless be dismissed in the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24].

67 As noted in Green v R; Quinn v R, supra, "the guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual": at [43].

68 In determining the requirements of justice in the present Crown appeal, proper attention is required to be given to the evidence, in particular, the specialist medical evidence concerning the respondent's physical and mental health conditions, and the capacity for health care facilities and services available in full-time custody to satisfactorily treat such conditions.

69 As to the respondent's physical condition, there is no dispute. He has chronic kidney disease and there has been a significant deterioration whilst in custody and since.

70 When first seen in 2012, his advanced kidney function measured only 15% of normal. At that level most people are prepared for dialysis. When he went onto dialysis he had 3% of kidney function - a dangerously low level. The only specialist medical opinion - that of Dr Luxton - establishes:

(1) The respondent's period in custody impacted on his renal condition - delays in treatment occurred whereas earlier referral may have delayed his kidney disease: Dr Luxton's report, answer 1 at p 2. Delays also occurred in custody in actuation of recommended changes in treatment.

(2) Whilst there is a haemodialysis unit at Long Bay gaol, "access to renal trained medical staff is not available and there have been difficulty [sic] in dialysis patients accessing appropriate diets and provision of medications at the correct times".

(3) Without criticism of the treatment services available at Long Bay, those services are not adequate to ensure optimal treatment of the respondent's end-stage kidney disease.

71 We have concluded that there is an insufficient basis for the Court to decline to re-sentence the respondent in the exercise of the residual discretion but the material now available is of such moment that the extent of intervention should be moderated. The combined effect of the added delay in the final disposition of the matter, the evidence of what has transpired in relation to the respondent's ill-health (both physical and mental) and the conditions under which he has been held in a form of quasi-custody since being released on parole, call for an amelioration of the Court's response.

72 On the disposition of the first appeal we imposed sentences in respect of the offences of dishonestly obtaining a benefit by deception and aggravated indecent assault which have already expired. We propose to maintain those sentences. However, in respect of the offence of maliciously inflicting grievous bodily harm with intent, we propose to impose a sentence of 3 years in lieu of the initially imposed sentence of 4 years (and the sentence imposed in the District Court of 2 years 6 months).

73 The finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act that was made on the first appeal should be maintained and for the same reasons.

74 The total effective sentence will be one of 5 years with a non-parole component of 3 years. This is in contrast to the District Court sentence of 3 years 6 months with a non-parole component of 2 years and the sentence imposed by this Court on the first appeal of 5 years 6 months with a non-parole component of 3 years 6 months.

Orders

(1) Crown appeal against sentence allowed.

(2) Sentences imposed by the District Court on 1 July 2011 are set aside.

(3) The respondent is re-sentenced as follows:

(i) In respect of the offence of dishonestly obtain benefit by deception contrary to s 178BA of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013.

(ii) In respect of the offence of aggravated indecent assault of CA contrary to s 61M(1) of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 with a parole period of 4 months to expire on 30 November 2013.

(iii) In respect of the offence of maliciously inflict grievous bodily harm with intent contrary to s 33 of the Crimes Act, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 1 year commencing on 1 June 2013 and expiring on 31 May 2014 with a parole period of 2 years to expire on 31 May 2016.

(4) The Court notes that the non-parole period in respect of the sentence in (iii) above expired on 31 May 2014. Accordingly, the respondent is to remain on parole.

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Decision last updated: 18 August 2014