Wentworth v R

1. [1]

   MEAGHER JA: The applicant seeks leave to appeal against a sentence imposed by Hanley SC DCJ on 14 December 2020. He does so on the ground that his sentence “should be reduced having regard to the fresh evidence regarding his medical condition and availability of treatment in custody”. In doing so, he seeks the exercise of this Court’s power under Criminal Appeal Act 1912 (NSW), s 6(3).

2. [2]

   The applicant pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), namely of supplying a large commercial quantity of a prohibited drug. The relevant drug was 1,4-Butanediol. On each occasion the drug supplied was to an undercover police officer. The first offence occurred on 9 September 2019 and involved a total of 100.35kg and the second on 16 November 2019 involving a total of 103.77kg. For each offence the standard non-parole period was 15 years.

3. [3]

   He was arrested on 19 November 2019 and remained in custody bail refused at the time of his sentencing following his guilty pleas. The sentencing judge imposed an aggregate term of imprisonment of 8 years commencing on 19 November 2019 and expiring on 19 November 2027. The aggregate non-parole period was 4 years to commence on the same date.

4. [4]

   More than two years before the offending occurred, the applicant underwent the attachment of a colostomy bag as a result of a bowel obstruction caused by ulcerative colitis. Long term it was proposed that the colostomy bag would be reversed by surgery involving two stages, the first a “completion proctocolectomy with defunctioning ileostomy” and the second a “reversal of ileostomy”.

5. [5]

   The applicant seeks to adduce ‘fresh’ evidence as to the continuing availability of that reversal surgery. The provisional basis on which the Court must assess that evidence was summarised in Hoang v R [2020] NSWCCA 324 at [16] (Payne JA, Beech-Jones and Fagan JJ) as follows:

6. [6]

   The evidence falls into two categories. The first is medical evidence from the applicant’s treating doctors as to his current condition and the availability/advisability of reversal surgery. The second is factual evidence as to the conditions he has encountered in managing his medical condition whilst in custody. All of this evidence is ‘fresh’ in the sense that it speaks as to events which have happened or constitutes medical opinions provided since the date of his sentencing. Whether the Court can and should act on that evidence to review the sentencing decision is the issue in this application for leave to appeal and appeal.

7. [7]

   In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 502 at [110], Simpson J (as her Honour then was) observed that a fundamental precondition to the exercise of the Court’s power under s 6(3) is that some other sentence “is warranted in law and should have been passed”. This requires there be some error identified either in the sentencing process or in the outcome of the sentencing process. Generally that will not be the case merely because of the occurrence of subsequent events or circumstances impacting on the sentence which were not and could not have been taken into account at the relevant time.

8. [8]

   However, the position is different if those subsequent events or circumstances cast “new light on circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing” (JM v R [2008] NSWCCA 254 at [26] per Simpson J).

9. [9]

   In Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [66], Beech-Jones J (as his Honour then was), Hoeben CJ at CL and Hamill J agreeing, gave three examples of sentencing appeals where further evidence was received and taken into account:

10. [10]

    The third is closest to the circumstances for which the applicant contends, but only as they relate to the availability of stoma reversal surgery whilst the applicant remains in custody. The applicant does not rely on any change of circumstances as they relate to the management of his medical condition whilst in custody.

11. [11]

    The applicant says that he was sentenced in the expectation that he would have facilities available to him in custody to pursue stoma reversal surgery which were “commensurate with those available to persons in the wider community”. He submits that the position in that respect now is that he cannot have that surgery whilst in custody.

Difficulties encountered in managing medical condition whilst in custody

1. [12]

   Before addressing that question, something should be said about the applicant’s evidence as to difficulties he has encountered in managing his medical condition in custody. In oral argument, it was accepted that “the day-to-day things that Mr Wentworth talks about in terms of managing his condition” were taken into account by the sentencing judge, who “made a significant allowance [for that] by way of special circumstances”.

2. [13]

   In his remarks on sentence the sentencing judge considered the various aspects of the hardship which the applicant would undoubtedly confront in custody as a result of his having a colostomy bag and the additional stoma care and supplies he would require. The evidence included, as the sentencing judge recorded, that the applicant had already experienced:

3. [14]

   The difficulties which the applicant refers to in his further affidavit evidence are described in his diary notes which are annexure A to his affidavit of 14 October 2022 and are of a similar kind. They include occasions when he says he has been separated from or unable to access the ongoing medical supplies he requires, including colostomy bags. His evidence suggests that there have been similar difficulties since his sentencing, and especially as a result of continuing COVID-19 lockdowns. It is not necessary for this Court to determine the extent of those difficulties and whether they have been to any extent exaggerated, as the Crown suggests.

4. [15]

   The presently relevant matter, which is not controversial, is that the sentencing judge took the likelihood of such ongoing difficulties into account in making a significant allowance for special circumstances and setting an aggregate non-parole period of 4 years, in an overall sentence of 8 years. The relevant sentencing remarks are extracted at [18] below.

5. [16]

   The applicant’s counsel relied on this further evidence of the applicant’s “history of managing in debilitating circumstances his stoma bag” as supporting the likelihood that if the surgeons were prepared to undertake the reversal surgery, he would embrace it to alleviate or reduce the stigma and embarrassing situation he must face from day to day. That may be so. However, as the evidence shows, the applicant’s surgeons are not at present prepared to undertake the surgery until his weight is reduced.

Evidence at time of sentencing as to availability of stoma reversal surgery whilst in custody

1. [17]

   Returning to the question as to whether the circumstances on which the applicant was sentenced have materially changed, the evidence taken into account by the sentencing judge included a report of Dr Jacques Ette dated 27 November 2020. His position was then and remains Staff Specialist - Primary Care in Justice Health NSW. This report took account of the applicant’s history from when he was taken into custody in November 2019:

2. [18]

   In his remarks on sentence, the sentencing judge dealt with this aspect of Dr Ette’s report and his statement as to the capacity of Justice Health as follows:

Has the availability to the applicant in custody of stoma reversal surgery changed?

1. [19]

   The applicant says that the sentencing judge proceeded on the basis that there was a capacity for him safely to undertake stoma reversal surgery whilst in custody. That is undoubtedly correct. He submits the position is now significantly different, and that it is unlikely that he could safely undertake stoma reversal surgery whilst he remains in custody.

2. [20]

   In doing so he relies on the following reports and medical advices. They strongly support the conclusion that it is unlikely the applicant could safely and successfully undertake such surgery having regard to his present physical condition. That is so irrespective of whether the surgery is to be undertaken whilst he is in custody or released from custody. The applicant’s medical advisers also recommend that ideally “the operation should be performed when he has optimal social and family support networks readily available”. That could not be the case whilst he remains in custody. However, the position remains that surgery in custody is available to the applicant.

3. [21]

   The applicant’s colorectal specialist is Dr Kheng-Seong Ng. Dr Ng reviewed the applicant at the Silverwater Correctional Centre in mid-February 2022. In his report dated 1 March 2022 Dr Ng noted at the outset that in determining how best to proceed with any stoma surgery, a relevant and related condition to be considered was the applicant’s current weight of 140kg. His report continued:

4. [22]

   Nowhere in this report does Dr Ng, in recommending a preferable or ideal way forward, say that it would not be possible for the applicant’s surgery to be performed whilst he was in custody.

5. [23]

   Dr Ng arranged for the applicant to seek a second opinion from Associate Professor Matthew Rickard at the Concord Hospital Colorectal Clinic, and sent a copy of his report to Dr Sudarshan Paramsothy at Concord Hospital.

6. [24]

   Earlier and on 24 November 2021, Dr Paramsothy had reviewed the applicant’s condition, and a report dated 9 December 2021 recommended:

7. [25]

   On 3 June 2022 the applicant saw Dr Paramsothy and Dr Aviv Pudipeddi at the Inflammatory Bowel Disease Clinic at Concord Hospital. In Dr Pudipeddi’s report of the same date and addressed to the Dawn De Loas Correctional Centre, he noted that there had been discussions between the applicant and Dr Ng, and continued:

8. [26]

   Finally from the perspective of the applicant’s treating and consulting doctors, Dr Rickard wrote a report to Dr Paramsothy dated 14 July 2022. Having described the applicant as “currently obese and weighs 150kg”, he said:

9. [27]

   Dr Ette prepared a second report in response to the current application. That report, dated 17 November 2022, considers whether “services are available to Mr Wentworth to address any possible post-operative issues should they arise following stoma reversal”. In doing so, it focusses on the remarks made by Dr Ng in his report of 1 March 2022 extracted at [21] above. His evidence, which was not challenged by cross-examination, was that if the applicant undertook the remaining two stages of the stoma reversal surgery in the public health system and whilst still in custody, he would be admitted to the Prince of Wales Hospital and would likely have the surgery as a public patient. He continued:

Disposition of application

1. [28]

   Putting to one side the difficulties referred to as presented by the applicant’s weight, this evidence shows that the position with respect to his undertaking stoma reversal surgery whilst in custody has not changed; and that any of the issues likely to arise with respect to that surgery and his post-operative recovery could be satisfactorily addressed by Justice Health and through the public health system.

2. [29]

   As the applicant frankly conceded in evidence, Dr Ng has advised him that at the present time there is a risk because of his body weight that if he undertakes the surgery without losing that weight “it might not work”. The evidence indicates that the other treating and consulting doctors agree with that being the position; and for that reason, none of them recommends surgery at this time and whilst the applicant continues to have body weight issues.

3. [30]

   It should be added that although the sentencing judge proceeded on the basis that there was a possibility that the applicant might undergo surgery in custody, he sentenced him “irrespective of that possibility”, and in doing so found that his “time in custody is going to be substantially more hard than those that do [not] suffer from that disability and the consequential stigmatisation”.

4. [31]

   In the end, the proposed medical evidence does not establish the fundamental premise on which the application for leave to appeal depends, namely that it is no longer possible for the applicant to pursue stoma reversal surgery whilst in custody. That opportunity remains available, although his medical advice is that he should not pursue it.

5. [32]

   Accordingly, the application for leave to appeal should be dismissed.

6. [33]

   BEECH-JONES CJ at CL: Given the quantity of drugs supplied by the applicant, the sentence imposed on him was very lenient. The reason for that leniency was carefully explained by the sentencing judge, namely the various difficulties that it was anticipated that the applicant would experience in custody as a result of his medical condition. His Honour only accepted that there was a “possibility” that the applicant might undergo stoma reversal surgery and addressed the applicant’s position on the basis that it would or might not occur (“irrespective of that possibility”; see [18]). As explained by Meagher JA, the evidence before this Court demonstrates that the position has not relevantly changed. I otherwise agree with Meagher JA’s reasons. I agree with the orders proposed by his Honour.

7. [34]

   GARLING J: I agree with the orders proposed by Meagher JA and with his reasons. I also agree with the additional remarks of the Chief Judge.