R E [2023] NSWCCA 184
1 judgment
R E [2023] NSWCCA 184
ChapterSexual offences – Crown appeal – evidence of inadequate medical care in custody
Coram: Stern JA, Fagan and Yehia JJ
- Crown appeal against sentence for multiple sexual offences
- At sentence hearing Sentencing Judge took into account respondent’s history of cancer and evidence establishing respondent not receiving appropriate medical care in custody – rejected Crown submission that medical services of Justice Health commensurate with those available in wider community and that it would not be justified to impose lesser sentence or to find special circumstances on basis of respondent’s health issues – imposed ‘lenient’ sentence with ‘very generous finding of special circumstances: at [46], [48]
- [47] Her Honour was justified in these conclusions. The evidence showed that the respondent’s medical care had been neglected and that Justice Health’s claims in its brochure could not be taken at face value. This is not the first time that assertions by Justice Health concerning its capacity to provide healthcare for inmates have been presented to a sentencing judge but have been shown to be gravely unreliable: see Brierley v R [2022] NSWCCA 26. The really serious circumstance proved by uncontested medical records in the respondent’s case was that his clinical management had been interrupted by imprisonment at a critical stage, when a course of treatment for a diagnosed progressive disease had been undertaken and follow-up with a PET scan and endoscopy was necessary in order to ascertain whether further treatment would be needed. It would be obvious to anyone that the follow-up was time-critical. The notation of Justice Health personnel, on the day of his admission to prison, was “Priority semi urgent”. On the face of the material before the sentencing judge a delay of more than 4 months without those procedures having been conducted, or even an appointment made with an external provider, was medically neglectful. It would not be going too far to say that it was inhumane to keep a prison inmate, in the respondent’s state of health, under suspense for over 4 months, not knowing whether his condition may be deteriorating, not knowing whether the further testing that he requires will be provided or, if so, when.
- Found sentence not manifestly inadequate in circumstances of case – “Had the Court taken a different view of the adequacy of the sentence, it would inevitably have exercised its discretion not to increase it in view of the further four months of delay in provision of essential and urgent medical attention since the respondent was before the District Court.”: at [49]-[53]
Chapter: Impacts of Imprisonment and Remand in Custody (opens in a new tab)Case Summaries (opens in a new tab)See full case: 2023 NSWCCA 184 (opens in a new tab)