Wright v R

1. [1]

   BASTEN JA: In circumstances fully explained by R A Hulme J, the applicant, Richard Wright, sought leave to appeal against sentences imposed by Woodburne DCJ for a number of sexual assaults on young children. Although the circumstances require careful consideration, the material presented to the Court does not ultimately qualify as material upon which this Court could intervene. Accordingly, I would refuse leave to appeal against the sentences.

2. [2]

   The admissibility in this Court, on an application for leave to appeal against sentence, of evidence not before the sentencing judge has been the subject of recent consideration in the High Court, restating principles which have, broadly speaking, been applied by this Court for several decades. It is convenient to restate those principles, so far as relevant for present purposes, in order to demonstrate that no occasion for intervention has been established.

3. [3]

   An application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) is to be determined in accordance with s 6(3) of that Act. The first step is to identify error on the part of the sentencing judge. As explained in Kentwell v The Queen, [1] in terms derived from House v The King: [2]

4. [4]

   The joint judgment in Kentwell continued, “[a]fter having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence.” [3] This last proposition was very recently reiterated in Betts v The Queen: [4]

5. [5]

   Although Betts was concerned with evidence relevant to the second stage of the process (error having been established warranting intervention by this Court), the joint reasons commenced with a statement of the principles relevant to the determination of appeals generally under s 6(3). The Court said: [5]

6. [6]

   This statement of principle is important in the present case, because the evidence sought to be relied upon to establish a ground of intervention was not evidence before the sentencing judge, nor was any error independently identified in the judgment on sentence. Unlike Betts, the focus in the present case was on the first stage (identifying error) rather than the second stage (resentencing).

7. [7]

   The statement of principle in Betts raises two issues of present importance. The first is whether the phrase “new or fresh evidence” was intended to refer to “new and fresh” evidence and, secondly, whether the caselaw approved in the last sentence, referring to “the flexibility to receive new evidence” was not limited to evidence properly described as fresh evidence.

8. [8]

   The concept of “fresh evidence” is generally understood as evidence that is new, in the sense that it had not been obtained at the time of the hearing at first instance, and was “fresh” in the sense that it could not have been obtained at that time in the exercise of reasonable diligence. The element of ambiguity is revealed by the reference to R v Lanham, a decision of this Court constituted by Mason and Manning JJA and Isaacs J. The passage in the judgment referred to in Betts read as follows: [11]

9. [9]

   The last sentence (envisaging withholding of evidence) suggests that the term “fresh evidence” was not being used in a restricted and technical sense.

10. [10]

    In R v Vachalec, also referred to in Betts in the passage set out above, Street CJ (delivering the judgment of a court comprising himself, Nagle CJ at CL and Lee J) stated, by reference to both appeals against conviction and appeals against sentence, that the primary function of the Court was to ascertain whether the decision was in error. The reasons continued: [12]

11. [11]

    Referring to the judgment of James J (with whom Mason P and Hislop J agreed) in R v Deng [13] the High Court noted that this Court will routinely receive “evidence of the offender’s progress towards rehabilitation in the period since the sentence hearing” on the limited basis that it may be taken into account at the second stage (resentencing). [14] However, even at the second stage, in circumstances where the power of the court to re-exercise the sentencing discretion had been enlivened, the High Court rejected the proposition that other evidence, not before the sentencing judge, should be admitted. Thus the Court stated: [15]

12. [12]

    In Deng, James J commented on a passage in the reasons of Howie AJ in R v Fordham [16] in the following terms:

13. [13]

    The submission put to the Court in Betts was contrary to the conclusion reached in Deng; [17] it was rejected, thereby affirming the approach accepted by James J in Deng.

14. [14]

    It is not necessary for present purposes to consider whether evidence which was either obtained and not relied upon, or was reasonably available but not obtained, could ever (and if so in what circumstances) form the basis for an application for leave to appeal against sentence. What may be accepted, however, is that evidence which was not obtained because it was not available in the exercise of reasonable diligence, may be admissible in order to show that the sentencing process miscarried, although that is only likely to be in exceptional cases and will depend upon the nature of the evidence.

15. [15]

    In the present case, the evidence concerned the applicant’s deteriorating health at the time of sentencing and subsequently. Such evidence should be distinguished from evidence which had potential consequences for the moral culpability of the applicant at the date of his offending, as was the case in Betts.

16. [16]

    There is another kind of evidence which arguably falls into a different category. That is evidence which may not have been available at the time of sentencing, but which demonstrates that the circumstances of imprisonment are harsher, due to the deteriorating condition of the offender, than had been anticipated at the time of sentence. In respect of such evidence, Street CJ stated in Vachalec, immediately after the passage referred to above at [10]:

17. [17]

    There is some tension between the principle that the Court should generally only consider admitting fresh evidence and the principle that anything that has happened since sentencing (being the most obvious category of fresh evidence) is a matter for the executive and not for the court on an application for leave to appeal against sentence. There is a further problem, particularly with medical conditions, in identifying what is properly described as “fresh evidence”. For example, there was evidence before the sentencing judge that the applicant was in declining health. He had not been diagnosed as suffering from dementia at that stage, nor, it may be accepted, should such a diagnosis have then been made. However, the fact that a psychiatrist has (for sound reasons) later proffered such a diagnosis does not necessarily mean that there is some fresh material which might have affected the sentencing, had the diagnosis then been available.

18. [18]

    In Khoury v The Queen, [18] Simpson J stated that “[i]f evidence qualifies as fresh evidence, its admission may depend upon a further criterion – the evaluation of its capacity to have affected the outcome of the proceedings at first instance.” That statement was worded in the past tense because of the understood need to distinguish between “events or circumstances or facts that have arisen entirely since sentencing” (which cannot be taken into account) [19] and those facts or circumstances which “existed at the time of sentencing, even if not known, or imperfectly understood, at that time”. [20] Nevertheless, Simpson J suggested that “[t]oo rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence.” [21] After noting the further difficulty in determining whether the relevant “event or circumstance” is the psychological condition or the diagnosis [22] Simpson J concluded: [23]

19. [19]

    Simpson J further emphasised that, even if the evidence did cast light on circumstances known but not fully appreciated at the time of sentencing, the admission of such evidence remained a discretionary function of the court. [24] Not only is that desirable in order to ensure that evidence which might have been obtained prior to sentencing is not deliberately held back, as a forensic stratagem, but also because of the need to assess the materiality of the evidence.

20. [20]

    The evidence sought to be relied upon in the present case has been identified by R A Hulme J in terms which need not be repeated. As he explains, the evidence now proffered should not properly have resulted in a more lenient sentence. Accordingly, the evidence should not be admitted. If it were thought appropriate to admit the evidence in the particular circumstances of this application, it nevertheless could not provide a sufficient basis for a grant of leave to appeal.

21. [21]

    R A HULME J: Mr Richard Wright seeks leave to appeal in respect of sentences imposed by her Honour Judge Woodburne SC in the District Court at Sydney on 6 February 2015 in respect of a number of child sexual assault offences he committed in the early 1960's upon his stepdaughter.

22. [22]

    Her Honour imposed an overall sentence of 4 years 5 months with a non-parole component of 2 years dating from 2 October 2014. The applicant will become eligible for release on parole on 1 October 2016.

23. [23]

    Details of the individual offences, maximum penalties and sentences imposed appear in the following table. Each offence is contrary to sections of the Crimes Act 1900 (NSW). Each sentence was reduced by 12.5 per cent because of the utilitarian value of the applicant's pleas of guilty.

24. [24]

    The applicant relies upon a single ground of appeal:

25. [25]

    The "fresh evidence" concerns an aspect of the applicant's health which was not discovered until after he was sentenced. He has been diagnosed as suffering from Probable Major Neurocognitive Disorder due to Alzheimer's disease.

Facts

1. [26]

   The complainant was born in 1948. Her mother married the applicant in 1959 when he was aged 29. He was born in 1930 and is now aged 86.

2. [27]

   Count 1: Sometime between 1 January 1961 and 30 April 1962 when the complainant was aged 12 or 13 there was an occasion when the applicant put a towel on the complainant's bed and put oil on his hands. While she was lying on the towel he rubbed her thighs and digitally penetrated her vagina. Her mother witnessed this and asked what was going on. The applicant replied, "I'm helping her to lose weight, what do you think is going on here?" The mother left the room and the applicant continued what he was doing.

3. [28]

   The learned sentencing judge assessed this offence as "a very serious instance of an offence of its type".

4. [29]

   Count 2: Sometime between 24 October 1961 and 30 April 1962 when the complainant was aged 13 there was an occasion when she was in a bedroom and the applicant entered wearing only a shirt. She was shocked to see his erect penis. He commanded her to lay on the bed and he removed her clothing. He rubbed her genitalia and digitally penetrated her vagina a number of times which caused a stinging sensation. He then said to her, "I love you, I love you, you're ripe for the picking. When I married your mother she wasn't a virgin but you are". He then inserted his penis in her vagina which caused her to cry out in pain. He said to her, "Shh". The complainant experienced immense pain and blacked out. She was unable to say for how long he penetrated her. When he finished he wiped her vagina roughly with a towel.

5. [30]

   This offence was assessed by the judge as being "a very serious example of an offence committed in contravention of s 73 Crimes Act".

6. [31]

   Count 3: This event occurred later on the same day as the event in Count 2. The complainant was in the lounge room and he told her, "I love you, you're so special". They kissed and he laughed because she was responding to him. He then had penile vaginal intercourse with her on the linoleum covered floor which she found to be extremely painful.

7. [32]

   The judge assessed this offence as serious, but less so than the offence in Count 2.

8. [33]

   It was an agreed fact that the applicant continued having sexual intercourse with the complainant over the following years. He would take her in his car to secluded locations. The complainant recalled that if she was having a bad day or was upset the applicant would say to her, "I know what you need", meaning that he would have sex with her.

9. [34]

   Count 4: This event occurred between 24 October 1963 and 23 October 1964 when the complainant was aged 15. He took her for a drive to a secluded location when he had penile vaginal intercourse with her which culminated in him ejaculating on the ground beside her.

10. [35]

    The judge accepted the submission by the applicant's counsel that this offence was not the most serious example of such offending (the Crown did not contend that it was) but it remained a serious matter.

Victim impact statement

1. [36]

   A victim impact statement was prepared by the complainant and read out in the District Court. The learned judge regarded it as "an eloquent reminder to this Court and the community of the damage done by the criminal actions of the offender". She described the statement as an expression by the complainant of "the continuing emotional and psychological damage caused by the offender's actions" and noted that the "hurt, pain and dislocation has endured over many years". She considered it was to the complainant's credit "that she had survived the sexual assaults committed upon her and that she has managed to have the courage and fortitude to appear before the Court to inform the Court of the damage done".

2. [37]

   There is no complaint about the manner in which the judge had regard to the statement. It describes in considerable detail the variety of very tragic and deleterious effects that offences of this type can cause their victims. The psychological, emotional and life-changing responses of the complainant, even over half a century after her abuse by the applicant, are palpable.

Complaint, investigation and the course of proceedings

1. [38]

   The complainant made her first complaint to the authorities when she was living in Western Australia in mid-2009.

2. [39]

   In September 2009 the applicant was interviewed by Western Australian police in relation to his offending in the late 1980's and early 1990's in relation to two other female children, one being his step-granddaughter. During that interview he made partial admissions of having interfered with the complainant in the present matter.

3. [40]

   In September 2010 the applicant was sentenced in the District Court of Western Australia in relation to the offences concerning the other children. He received a sentence of 18 months imprisonment which was suspended for 2 years.

4. [41]

   The Western Australian police sent information to police in this State in November 2010 and an investigation commenced. In September 2013 an arrest warrant was issued which was executed in November that year in Queensland where the applicant was then living. He was extradited to this State and remained in custody until he was released on bail in March 2014.

5. [42]

   The applicant was committed for trial on 8 May 2014. A trial in the District Court was scheduled for 29 September 2014. In the weeks preceding the trial the applicant instructed his solicitors to enter into charge negotiations with the prosecutor which led to pleas of guilty being entered on 29 September 2014.

6. [43]

   The matter came before Woodburne SC DCJ on 18 December 2014. Judgment was reserved and the applicant was sentenced by her Honour on 6 February 2015.

7. [44]

   The Registrar granted an application for an extension of time to file a Notice of Intention to Appeal on 10 April 2015. The life of the notice was twice extended, ultimately to 30 March 2016. The Notice of Application for Leave to Appeal was filed on 9 March 2016. Accordingly, notwithstanding the time that had elapsed, no extension of time is required. Although I make no criticism, it is unfortunate that the matter has taken so long to proceed in the appellate phase given the applicant's non-parole period expires on 1 October 2016.

The applicant's personal circumstances including his ill-health

1. [45]

   The judge stated that the determination of the appropriate sentence was made more complex in this case by reason of the passage of time; the change in sentencing practices in the ensuing period; the applicant's advanced age (she noted he was soon to turn 85); delay; and ill-health.

2. [46]

   A number of documents concerning the applicant's ill-health were tendered in the sentencing proceedings: reports by Dr Emma Brown, the applicant's general practitioner, and Dr Stuart Reader, ophthalmologist; Justice Health medical records and a summary of the same; and an affidavit by the applicant.

3. [47]

   The judge noted that in the applicant's affidavit he listed his health conditions: advanced macular degeneration, being almost completely blind in one eye; chronic obstructive airway disease; chronic renal failure; hyperthyroidism; peptic ulcer; arthritis; and other degenerative changes. He said that he suffered from dizziness, shortness of breath and nose bleeds and back pain from a previous back injury.

4. [48]

   Dr Brown's report confirmed that the applicant had significant visual loss due to macular degeneration; chronic kidney disease requiring blood test monitoring; hypertension and hyperthyroidism requiring regular oral medication; and chronic obstructive pulmonary disease requiring inhaled therapy. She considered that whilst the future of these conditions was uncertain, the applicant's renal function and respiratory condition may well deteriorate.

5. [49]

   Dr Reader confirmed a diagnosis of advanced macular degeneration. It was his opinion that the condition could continue to deteriorate. He said, "Given the fact that the offender is almost legally blind, a period of incarceration would be more difficult for him in relation to his ocular problems".

6. [50]

   The Justice Health records related to the period in which the applicant was in custody from 21 November 2013 to 26 March 2014. He had received treatment at the eye clinic at Prince of Wales Hospital and had also been referred for physiotherapy for bilateral arthritis and osteoporosis treatment. He had also been referred to a psychologist because he was teary and not coping being in custody. Arrangements were made to have his blood pressure checked weekly. He was housed on a downstairs level to minimise the risk of falls.

7. [51]

   The judge referred to all of these matters (I have drawn the above summary from her judgment). She considered that the applicant's various conditions were amenable to treatment in the custodial environment although she added that she was not discounting their relevance. Her Honour accepted that imprisonment would be "a greater burden on him by reason of his state of health and his advanced age". This was relevant to the determination of the length of a sentence of imprisonment including the non-parole period.

8. [52]

   Another aspect rendering the applicant's custodial experience more difficult that the judge took into account was the fact that he would be separated from his 90 year old wife and other family members who lived interstate and were unable to visit regularly.

9. [53]

   A short time later in the judgment her Honour reiterated that she accepted the applicant would "find his incarceration more difficult than would otherwise be the case than if he was in good health and not of advanced age". It was "a significant consideration and a matter that calls for mitigation of punishment". (Emphasis added)

10. [54]

    Other matters taken into account in the assessment of sentence included the applicant's prior good character; he had no criminal history at the time of the index offences. This was considered in the context of him having offended over a number of years. Reference was also made to the subsequent sexual offending against two children in Western Australia. Her Honour also noted that the applicant had family support as indicated by their presence in court and by a testimonial by the daughter of his current wife. (His former wife of 42 years, the mother of the complainant, had died in 2002 and he remarried in 2005.)

11. [55]

    The judge was not satisfied that the applicant had any insight or remorse for his offending and the impact of that offending upon the complainant. Nevertheless she accepted that he was unlikely to reoffend given his age and ill-health.

12. [56]

    The delay in the present matters being prosecuted and brought to finalisation was taken into account. Her Honour’s consideration of this issue was detailed and, given there is now no complainant about the subject it is unnecessary to say more except to observe that her Honour noted and took into account that the applicant had aged and his health had deteriorated.

13. [57]

    Another aspect of delay that her Honour dealt with was the fact that it was necessary for sentencing to be assessed with regard to the significant change in the approach to sentencing in the period since the offences were committed. She referred to relevant authority in this Court on the subject (e.g. the five-judge bench decision in R v MJR [2002] NSWCCA 129; 54 NSWLR 368) and, again, given there is no complaint about the manner in which her Honour dealt with this issue there is no need to say more.

14. [58]

    Special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found so as to justify a reduction in the proportion of the sentences (including the total effective sentence) represented by the non-parole component. This finding was based upon a combination of the changed sentencing practices; the applicant's age and ill-health; the conditions he would experience in custody; and the fact that individual sentences would be partially accumulated.

The fresh evidence

1. [59]

   An affidavit by the applicant's present solicitor affirmed on 3 March 2016 was read at the hearing of the application. Annexed to the affidavit was a report by Dr Sharon Reutens, consultant psychiatrist, of 25 February 2016 as well as a number of documents to which she had referred including a report of a neuropsychological assessment by Dr Susan van den Berg dated 4 September 2015.

2. [60]

   Dr van den Berg’s report includes the following:

3. [61]

   Dr Reutens' curriculum vitae includes that she has advanced training in neuropsychiatry and old age psychiatry. She is employed as a Senior Visiting Medical Officer in Psychogeriatrics with Justice Health and as such is involved in management of the psychiatric needs of the older inmate population.

4. [62]

   Dr Reutens’ diagnosis of the applicant was: Probable Major Neurocognitive Disorder due to Alzheimer's disease. She wrote:

5. [63]

   She described Alzheimer's and Vascular type dementias as slowly progressing conditions that present with obvious clinical symptoms some years after the onset of the disease. She considered that the applicant "most likely had cognitive impairment while he was on remand". An episode of confusion recorded in the Justice Health records on 31 January 2014 was, with hindsight, a warning sign of cognitive impairment.

6. [64]

   When asked by the applicant's solicitor in his letter requesting Dr Reutens to make an assessment of his client whether incarceration affects the symptoms of the condition she responded: "incarceration is unlikely to affect the pathogenesis or expression of the disease in any material way".

7. [65]

   As to whether the applicant's experience of incarceration is affected by the symptoms of the condition she wrote:

8. [66]

   Dr Reutens said that to mitigate the symptoms, the applicant "would, ideally, be able to engage in meaningful activities suitable for visually impaired people with cognitive impairment. If he were in the community, [the applicant] could attend a centre with activities for cognitively impaired people". She added:

9. [67]

   Dr Reutens referred to a relevant academic work and reported that the prognosis for Alzheimer's dementia is of a gradual deterioration in cognition until death. Given his advanced age, the applicant would be expected to be at the shorter end of the range of life span, something in the order of several years. She said that during this time it is expected that he would gradually lose independence and will become carer dependent, culminating in the terminal stage where he would be unaware of his environment.

10. [68]

    In a further report dated 7 June 2016 (annexed to an affidavit affirmed by the applicant's solicitor on 8 June 2016) Dr Reutens noted a number of difficulties the applicant had experienced in custody in attending to daily activities (for example, requiring prompting to shower and assistance to ensure he took medications). She referred to the applicant lacking the assistance a person with cognitive impairment can rely upon by way of visual prompts, cues and reminders. She said he would benefit from having a carer to assist him. She also referred to various facilities that are available in the community to assist persons in the applicant's situation: home care; a community team or carer to liaise with services that could assist; and adult day care centres to provide diversional activities and social interaction.

11. [69]

    Other material annexed to the solicitor's affidavit of 8 June is informative of the various services and facilities that could be available to the applicant in the community.

12. [70]

    An affidavit sworn by the "inmate-carer" assigned to the Kevin Waller Unit where the applicant has been held since shortly after he was sentenced provides information as to the care and assistance he provides to the applicant and the other 21 elderly male inmates of the unit. A number of these inmates suffer from dementia as well as a range of other physical disabilities. Reference is made to the apparent confusion expressed by the applicant as to why he is there and when he is due for release.

Principles in relation to fresh evidence and their application

1. [71]

   There are limits on the ability of this Court to receive fresh or new evidence. Simpson J (as her Honour then was) provided a most detailed and useful summary of the relevant principles in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121]. It is, however, sufficient for present purposes to refer to the more succinct summary provided in the written submissions of senior counsel for the applicant:

2. [72]

   The final point was elaborated upon earlier in the judgment of Simpson J in Khoury v R:

3. [73]

   In his judgment in Turkmani v R [2014] NSWCCA 186, Beech-Jones J referred (at [66]) to three examples of the application of the principle concerning the receipt of evidence derived after sentencing:

Submissions for the applicant

1. [74]

   In the present case it is contended that the evidence qualifies as "fresh evidence" and that it falls within the first and second of the examples referred to by Beech-Jones J in Turkmani v R. The episode of confusion exhibited by the applicant in January 2014 was referred to as indicating that the onset of dementia pre-dated the applicant’s sentencing.

2. [75]

   As to the significance of the evidence, senior counsel for the applicant submitted, first, that the sentencing judge found that there was no evidence that the applicant would not receive appropriate medical treatment in prison, whereas the fresh evidence establishes that his imprisonment limits his access to therapy recommended for his disease. Secondly, it was submitted that while the judge accepted that the applicant's imprisonment would be more burdensome because of his age and poor health, the fresh evidence establishes that it may be a greater burden than was anticipated.

3. [76]

   For these reasons, it was submitted, the factual basis upon which sentence was determined was erroneous and there had thereby been a miscarriage of justice.

4. [77]

   Senior counsel for the applicant raised a new argument at the hearing of the application. By reference to R v AB [2015] NSWCCA 57 he contended that some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act to which the sentencing judge had regard were really inapt in the applicant's circumstances; specifically, denunciation and making him accountable for his actions. If the judge had been aware of what is now known about the applicant there would have been a significant difference in the sentence imposed.

Submissions for the Crown

1. [78]

   Senior counsel for the Crown conceded that it would be open to the Court to receive the evidence on the basis identified in the submissions for the applicant.

2. [79]

   It was not, however, conceded that the evidence establishes that the applicant's custodial experience is more onerous than was appreciated when he was sentenced.

3. [80]

   Reference was made to Dr Reutens’ first report in which she spoke of the inevitable progression of the applicant’s dementia and identified the "limited treatments available". It was argued that there was nothing in the report to suggest that the applicant is not being appropriately cared for in custody.

4. [81]

   A further submission was that the applicant's non-parole period of 2 years expires in under 4 months time on 1 October 2016. There is no evidence that in the 16 months that have elapsed since he was sentenced and returned to custody there has been any decline in his ability to manage. Further, there is no evidence that any further (gradual) decline in the ensuing months will be of such magnitude so as to impact on his ability to manage in a manner similar to which he has to date.

5. [82]

   In short, the Crown submitted that when regard is had to the range of ill-health factors, coupled with the applicant's advanced age, to which the sentencing judge had regard, this Court would not be satisfied that incarceration would be more onerous than her Honour anticipated. The offences were found to be objectively serious and the Crown contended that the fresh evidence did not justify any reduction when "considerable leniency" had already been factored into the assessment of sentence.

6. [83]

   In meeting the new argument based upon R v AB that was raised by the applicant at the hearing, senior counsel for the Crown contended that the circumstances of that case were quite different to those of the present case

Consideration

1. [84]

   The evidence properly qualifies as fresh evidence that this Court could receive in accordance with the principles to which I have earlier referred. I am not, however, persuaded that the Court should exercise its discretion to receive it because it is insufficient to warrant a fresh assessment of sentence. (I have since had the benefit of reading in draft the very useful analysis of Basten JA which further confirms the view I have formed.)

2. [85]

   The primary judge's reasons disclose that she approached her task very carefully, giving attention to both the seriousness of the offences as well as the substantial mitigation arising from various factors including (but not limited to) the applicant's advanced age and his multifaceted ill-health. She said a number of times that the applicant's incarceration would be more difficult than it otherwise might be. She regarded this as "a significant consideration and a matter that calls for mitigation of punishment and a matter to be brought into account … in the determination of the appropriate sentence".

3. [86]

   Sympathies might be aroused by the reports that have recently come to hand which disclose that an elderly inmate who was sentenced on the basis of having a variety of significant conditions of physical ill-health is now found to have dementia from which he is gradually declining. But is more weight to the difficulties of being incarcerated justified when such consideration already formed a major component of the assessment of sentence? In my view, in the circumstances of this case that question must be answered in the negative. The sentence imposed already represents a lenient outcome when regard is had to the gravity of the applicant's offending and the enduring harm that it caused.

4. [87]

   The argument of senior counsel for the applicant concerning the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act requires some detailed attention. The circumstances in R v AB were, as the Crown contended, rather different. There the respondent was the subject of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) because he had been found unfit to be tried on a charge of having murdered his estranged wife. He was aged 64 at the time of the killing and was almost 69 at the time the case was finalised. Psychiatric opinion was to the effect that he suffered from an adjustment disorder with depressed mood. He was also diagnosed with dementia (probably caused by long term hazardous alcohol consumption), cerebro vascular disease and possible Alzheimer's dementia. There were also a number of physical ailments.

5. [88]

   The primary judge found the respondent to be not guilty of murder but that on the limited evidence available he had committed the offence of manslaughter upon the basis of him being substantially impaired by an abnormality of mind (s 23A of the Crimes Act). A limiting term of 7 years was imposed. (No non-parole period is specified when a limiting term is nominated.) In the course of his reasons the primary judge said:

6. [89]

   One of the grounds of the Crown appeal against the asserted inadequacy of the limiting term was that the judge "erred in principle in his statement of a 'purpose' of a limiting term". The ground was rejected.

7. [90]

   Simpson J (as her Honour then was) set out the various purposes of sentencing listed in s 3A:

8. [91]

   She found (at [42]) the matter in (a) to be irrelevant by reference to authority for the proposition that the purpose of nominating a limiting term is not to punish. That is the first difference with the circumstances of the present case.

9. [92]

   Her Honour said that findings of the primary judge (the respondent's mental disability rendered him an unsuitable vehicle for general deterrence and he would not commit another act of violence) rendered the matters in (b)-(e) irrelevant.

10. [93]

    Her Honour also considered (at [45]) that denunciation of the respondent's conduct was in the same category as general deterrence because both stemmed from his diminished moral culpability which in turn arose from his impaired mental capacity.

11. [94]

    Recognition of the harm done to the deceased, her daughter and to the community was held to remain of relevance and it was not established that the primary judge had overlooked the fact.

12. [95]

    In the present case the judge made reference to s 3A and, after listing its content, she remarked: "Of course, the weight to be attributed to each of these matters depends on the facts of the case". She continued:

13. [96]

    The sentence to be imposed upon the applicant was to be in the form of a punishment, unlike the limiting term in R v AB. Accordingly, it was appropriate for her Honour to have regard to the need to ensure the respondent was adequately punished for his offences (with such assessment having to be made in the light of all relevant factors). There was no suggestion of the respondent's moral culpability for his crimes being diminished and so denunciation was also a matter her Honour could factor into the assessment (qualified by the various mitigating features). Finally, there was no argument about the relevance of recognising the harm done to the complainant. As to the other purposes of sentencing listed in s 3A, the judge made no other specific reference to them so it may be assumed that they did not loom large in her approach.

14. [97]

    Another point of distinction between the present case and R v AB is that the length of the limiting term under consideration in the latter was significantly longer than the sentence in this case (7 years as opposed to a non-parole period of 2 years). The concern of the primary judge in that case not to impose a term that would exceed the period in which the respondent would retain some awareness of where he was, and why, does not have the same degree of significance in this case.

15. [98]

    I am not persuaded of the applicant's contention that the fresh material presented to this Court would have made a significant difference to the sentence.

Orders

1. [99]

   I propose the following orders:

2. [100]

   FAGAN J: I agree with R A Hulme J.