Brierley [2022] NSWCCA 26

• Applicant 84 year old frail prisoner – Sentencing Judge accepted assurances from Justice Health that applicant’s needs could be provided for within custodial system through specialist units catering for older prisoners with medium to high needs: at [37]
• On appeal Court accepted evidence of serious adverse developments in applicant’s physical health not evidence before Sentencing Judge: at [22]-[34]
• Also accepted evidence of conditions of applicant’s imprisonment subsequent to imposition of sentence – evidence established no vacancies in facilities for elderly prisoners with low to medium needs and fact that applicant housed in mainstream prison: at [35]-[46]

[43] The evidence before her Honour showed that the Kevin Waller Unit has 26 beds and that at the date of the sentence proceeding, they were all occupied. The Crown has not sought to challenge or rebut the applicant’s affidavits. There is no evidence of what assessment Justice Health has made of the applicant’s needs but if he has been assessed as ineligible for any higher level of care than placement in a mainstream cell without a shower that he can safely use, then the criteria being applied must constitute, of themselves, seriously deficient provision for the welfare of a prisoner in this class. If the applicant’s circumstances do qualify him to be housed in a unit where at least low to moderate aged care needs can be met, then the only explanation of him not being so placed must be unavailability. Whether the present unsafe placement arises from the adoption of inappropriate criteria or from lack of resources, the applicant’s evidence supports a conclusion that Corrective Services, in conjunction with Justice Health, is not able to provide conditions of imprisonment to the reasonable standard of safety and humanity that her Honour evidently understood would be provided when the sentence was passed.

…

[46] … It transpires that, in circumstances where the unit suitable for elderly prisoners with low to medium needs is at capacity, the applicant is simply relegated to a mainstream cell that is not equipped in fundamental respects for the management of a frail, unstable man of 84 years.

[47] The applicant’s affidavits suggest that limited resources are available to Corrective Services for the accommodation of geriatric prisoners who are at an advanced stage of physical and mental decline. In light of that scarcity, it can now be seen to have been counter-productive for Mr Rajiv Anand, on behalf of Justice Health, to have provided his report to her Honour in the aspirational and unrealistic terms that he adopted. If the sentencing judge had been frankly informed that, due to the Kevin Waller unit being at capacity, safe care for an inmate such as the applicant could not be assured, then her Honour would have had proper material upon which to consider a shorter term or an alternative sentencing option. Sentencing judges cannot make sound decisions with respect to geriatric offenders who are frail and/or in serious ill-health unless accurate information about conditions of custody is supplied. If lack of adequate facilities for such prisoners is chronic rather than temporary, then it will be the responsibility of the Director of Public Prosecutions to bring to the attention of the Executive that this shortfall in the capacity of the prison system may lead to sentencing judges being unable to impose otherwise appropriate terms of imprisonment in circumstances such as the present.

• Appeal allowed and sentence reduced