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Physical Condition

The content on this page was last reviewed on 10 October 2020.

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Hardship
Mental Condition
Age

1. Overview

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their physical condition:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(m) the character, antecedents, age, means and physical or mental condition of the person

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2. Operation of s 16A(2)(m)

Under s 16A(2)(m), an offender’s physical condition may be a relevant factor when determining the appropriate sentence. In Grenfell v The Queen [2009] NSWCCA 162,  the Court (at [32]) extracted the following passage from R v Smith (1987) 44 SASR 587 in which King CJ observed at 589 that:

The state of health of an offender is always relevant to the consideration of the appropriate sentence of the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the conditions of their health. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse impact on the offender’s health. 1

In R v Simon [2003] NSWCCA 147, Sheller JA (at [33]) quoted R v Sopher (1993) 70 A Crim R 570, 573–574, where it was said:

If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account.

A physical condition does not have to be life threatening to be a relevant mitigating factor.

In R v Miranda [2002] NSWCCA 89, the Court assessed whether the sentencing judge had appropriately considered the offender’s post-operative gastro-intestinal problems arising from bowel cancer surgery. The Court found that the offender’s physical condition was not adequately reflected in the sentence imposed. Dowd J stated at [40] that:

The Learned Sentencing Judge did not appropriately allow for the fact that the applicant’s medical condition would make life difficult for the applicant in prison. The fact that the condition may not be as serious such as that identified in Smith [R v Smith (1987) 44 SASR 587], and would not be life threatening, is not an appropriate way to take into account the applicant’s problems. 2

2.1 Principle in R v Smith

In R v Smith (1987) 44 SASR 587, 589, King CJ held that an offender’s physical condition will be a mitigating factor in two situations:

Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse impact on the offender’s health (emphasis added). 3

This test has been described as a ‘two-limbed test’ in the federal sentencing case of R v Rockford [2015] SASCFC 51, with it being sufficient to establish either limb to warrant mitigation at [61]:

There are two limbs to the test posed by King CJ in Smith.  The first limb is whether the imprisonment will be a greater burden on the offender by reason of his state of health.  The second limb is whether there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.  If either limb of the test is established, that is a factor to be weighed in favour of mitigation (emphasis added). 4

It was noted in R v Badanjak [2004] NSWCCA 395, a case involving state offences, that ‘it is only in relatively rare cases that the Smith principle is applicable.’ 5

In DPP (Cth) v Munro [2019] VSCA 89, a case involving the importation of firearms, the sentencing judge found that the first limb was satisfied, and the offender’s physical condition was taken into account on sentence. On appeal the Court, comprising of Maxwell P, Beach and McLeish JJA, noted at [67]:

The [sentencing] judge accepted that the more serious of Munro’s physical conditions would make imprisonment more burdensome for him than it would be for a prisoner of normal health. He also accepted that there was a risk that Munro’s medical condition could deteriorate while he was in custody. He said, however, that there was insufficient evidence to make a finding that the custodial environment itself would contribute to any such deterioration. The judge concluded that he would moderate the sentences that he would otherwise have imposed on account of hardship occasioned by Munro’s physical health problems.

The Director’s appeal against the overall sentence was allowed on the ground of manifest inadequacy, and the Court set aside the orders for cumulation, stating that ‘higher cumulation’ was necessary to reflect the ‘discrete periods over which [the offender]’s serious offending was committed’. 6 However, the Court accepted that the offender’s ‘health issues’ were relevant on re-sentencing. 7

2.1.1 Whether the imprisonment will be a greater burden on the offender by reason of their physical condition

An offender’s physical condition may be a mitigating factor where imprisonment will be a greater burden on the offender by reason of his or her state of health. 8   Referring to R v Smith and Grenfell, Price J (Simpson J and Howie AJ agreeing) held in Leighton v The Queen [2010] NSWCCA 280 at [55]:

[T]here may be a considerable difference between what is said to be the ability of Justice Health to provide treatment and the reality of treatment being provided.  For instance, the applicant suffers from severe hearing loss in both ears with a resulting inability to hear the prison muster bell or public address system. The fitting of hearing aids requires transfer to Long Bay, but there is a lengthy waiting list. Furthermore, the applicant has difficulty eating as he only has a top set of teeth. … It is sufficient to state that all of the material fortifies the conclusion that his ill health makes his time in custody more onerous (emphasis added). 9

In the insider trading case of R v De Silva [2011] NSWSC 243, the offender was HIV positive. Buddin J considered that the virus as well as the treatment of the offender by prison inmates as a result of the virus would increase the hardship of imprisonment for the offender. Buddin J noted at [69]–[70] that:

It is apparent from Dr Hampton’s report that Justice Health is able to attend to most of the offender’s requirements in this respect whilst he is in custody. It is nonetheless appropriate to have regard to the fact that the offender’s health is compromised by his illness and that both that factor, and his understandable concerns about how he will be treated by other inmates whilst in custody, are likely to increase his sense of anxiety about his condition. Such a state of anxiety is clearly not going to be conducive to his overall health. …

It seems inevitable that the offender’s status will become known within a short period of time after his return to custody. The evidence demonstrates that the offender was indeed subjected to harassment from other inmates during his earlier sentence [because of his condition]. He is unlikely to be treated any differently this time. For those reasons it is appropriate to give some weight in the sentencing process to the fact that the offender will find the circumstances in which he will serve his sentence more burdensome than would otherwise be the case… (emphasis added). 10

In Merrill (a pseudonym) v The Queen [2017] VSCA 189, a child exploitation case, the offender suffered from lung problems and coronary heart disease. Santamaria JA repeated the sentencing judge’s findings at [32], who had found that both limbs of Smith were satisfied:

I have had regard to your very significant medical history and poor health. You are a fragile man who suffers long-term depression and anxiety in addition to the documented physical conditions. I accept that jail will be more onerous for you having regard to your poor health. There is also a risk that your condition may be impacted upon by reason of imprisonment (emphasis added).

Judge Cohen in the conspiracy to defraud Commonwealth case of DPP v Newling [2018] VCC 1961 stated at [42] that:

Although it can be expected that prison authorities will provide appropriate medical treatment and, in particular, continue necessary medication, it seems to me that each of these physical conditions is capable of making the serving of time in prison more onerous for you, but certainly is not an impediment to a sentence of immediate imprisonment (emphasis added).

In R v Cerantonio & Ors [2019] VSC 284,  a case of offending by making preparations for foreign incursions, the offender had sustained a back injury whilst in custody, which resulted in a ‘debilitating degree of difficulty with toileting’ and the ‘stressful and embarrassing’ need to explain his toileting needs ‘over and over again to different prison staff’. He also had ‘feelings of vulnerability’ after sustaining a targeted assault in custody to the area of his injured back following surgery. 11 Croucher J stated at [286] that:

I was satisfied that Mr Thorne’s difficulties associated with his back made, and would continue to make, his time in custody significantly more onerous than for other prisoners in general and his co-accused in particular. On the other, the hardship had occurred only since November and not for the duration of his period in custody, which limited its weight as a mitigating factor. That said, I acknowledged that this would be an ongoing hardship for him in custody, which gave the problem an added significance (emphasis added).

In the case of R v Issakidis [2018] NSWSC 378, which involved two offences of conspiracy to dishonestly cause a loss to the Commonwealth, there was evidence regarding the offender’s long standing heart condition, side effects of his cancer treatment, and severe osteoarthritis and arthritis in his knee. Harrison J stated at [92] and [126] that:

It is submitted that Mr Issakidis’ combination of conditions is such that there should be some moderation of the otherwise appropriate sentence to reflect the fact that his time in custody will be more burdensome than might otherwise be the case for a man of his age without the same problems with his health.

I accept that by reason of his age, his mental and physical health and the fact that he has never before been imprisoned, Mr Issakidis is entitled to some leniency.

2.1.2 Whether there is a serious risk of imprisonment having a gravely adverse effect on offender’s health

An offender’s physical condition may be a relevant factor when there is a serious risk of imprisonment having a gravely adverse impact on the offender’s health. 12

In Pfeiffer v The Queen [2009] NSWCCA 145, the applicant suffered from a range of debilitating physical conditions. In assessing the adverse impact of imprisonment on the applicant’s health, McClellan CJ at CL (Simpson and Buddin JJ agreeing) emphasised the significant delays that the applicant would face in receiving specialist medical treatment. McClellan CJ at CL commented at [14] that:

The catalogue of medical problems from which the applicant suffers indicates that he will require access to a variety of medical specialists during his time in custody… [A]lthough a finding that the prison system could deal with the problems was appropriate, the timeliness of the response to any particular health issue was doubtful… The inevitable consequence must be a considerable risk that the applicant’s health will be further compromised by his period of incarceration (emphasis added).

In Parry v The Queen  [2003] WASCA 222, the offender sought leave to appeal the sentence imposed by the District Court on various grounds including the fact that he suffered from hepatitis C. Dismissing the ground of appeal, Malcolm CJ observed at [59] that:

Although it [the Hepatitis C] is likely to continue to advance if untreated, it is not expected to deteriorate to any significant extent in the next five years or so. There is no evidence that incarceration will cause the disease to progress more rapidly or that the symptoms of the disease make prison significantly harder to bear (emphasis added).

Similarly, in R v Massey [2015] QCA 254, the Queensland Court of Appeal found at [27] that:

The evidence tendered at sentence demonstrated that the applicant has a significant disabling back injury which causes him severe pain. His time in prison will be more difficult than for a healthy person. This is a mitigating factor. But as the sentencing judge noted, there is no evidence that his condition cannot be appropriately accommodated whilst in prison, and his poor health, whilst a matter to be taken into account, ought not in this case overwhelm a proper sentence (emphasis added).

In  Leckie v Department of Human Services [2012] SASC 197, the offender’s health condition was found to increase the burden of imprisonment. However, Stanley J stated at [29] that the sentencing judge was correct in finding that a custodial sentence was still necessary as ‘he was satisfied that her health issues could be appropriately managed in prison’.

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3. Application of s 16A(2)(m)

3.1 Evidence required for physical condition to be taken into account

For physical condition to be taken into account on sentence, it is necessary that there be adequate medical evidence of the offender’s physical condition.

In the drug importation case of Huynh v The Queen [2015] NSWCCA 167, Davies J (Simpson and Hamill JJ agreeing) considered whether to admit fresh evidence relating to the offender’s ill health in the form of an anatomical pathology report on an appeal against sentence. The Court held that it was not appropriate that the fresh evidence be received, stating at [46], [48]:

Attached to her submissions on the appeal was a report from Tim Watson-Monroe, a forensic psychologist, dated 10 July 2014 in relation to the Applicant as well as information from Justice Health some of which predated the sentence proceedings and some of which was more recent. The more recent material was an anatomical pathology report dated 9 March 2015. This report concerned two specimens from the Applicant’s cervix. They were reported as showing acutely inflamed endocervical squamous mucosa. It was said that no AIS or malignancy was seen.

I do not consider that it is appropriate that this recent evidence should be received. It is of no real significance in circumstances where there is no medical evidence to explain how what is demonstrated in the Pathology report affects the Applicant. Nor is there any evidence of what treatment, if any, is needed, and if treatment is necessary, that it cannot be provided within a custodial setting. In that way, the interests of justice do not require that it be further considered (emphasis added).

In the drug importation case of ZZ v The Queen [2019] NSWCCA 286, R A Hulme J (Hoeben CJ at CL and Button J agreeing) stated at [35] that:

The applicant swore an affidavit for re-sentencing purposes. It confirms that the difficulties of her custodial experience as portrayed at her original sentencing have continued.  She is concerned about an aspect of her physical health; arthritis in particular. In the absence of medical evidence, however, it is difficult to make an assessment of the significance of this (emphasis added).

In relation to the COVID-19 pandemic, Mahony DCJ in the conspiracy to defraud Commonwealth case of R v Hughes [2020] NSWDC 98 stated at [133] and [135]–[136] that:

The Crown has made proper concessions as to the existence of the pandemic due to the Covid-19 virus and the fact that persons may be at increased risk if they suffer from chronic illness or are incarcerated in a gaol where Covid-19 is present. This court is not in a position to make an evidence-based assessment of the risk to this offender of contracting the virus in a correctional facility and whether that risk is greater than that of a member of the general public.

… [T]here is no medical evidence of the extent of any illnesses suffered by the offender before me. Further, the Covid-19 pandemic is one that affects the whole of the population, including those in custody. … I am not satisfied that this offender is at any greater risk than any other person in custody from contracting the Covid-19 virus.

Whilst I accept that the existence of Covid-19 virus may be a relevant factor in sentencing, there is no evidence to establish that this offender is at greater risk than others in custody so as to amount to hardship (emphasis added).

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3.2 Physical condition must be balanced with level of criminality

The weight given to an offender’s physical condition on sentence must be balanced with the level of criminality of the offence. King CJ held in R v Smith (1987) 44 SASR 587, 589 that:

The state of health of an offender is always relevant to the consideration of the appropriate sentence of the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the conditions of their health (emphasis added). 13

Similarly, Malcolm CJ (Murray and McLure JJ agreeing) stated in Kaye v The Queen [2004] WASCA 227 at [32] that:

While health and age are relevant to the length of any sentence they will usually not prevent the imposition of a custodial sentence if imprisonment is otherwise warranted. An appropriate balance has to be kept between the criminality in question and any health or shortening of life considerationsR v Sopher (1993) 70 A Crim R 570 (emphasis added). 14

In R v De Silva [2011] NSWSC 243, Buddin J held that while the offender’s commission of the offence occurred shortly after his diagnosis with HIV, and this was part of the explanation for his behaviour, it did not decrease his moral culpability. Buddin J stated at [71]:

I am also prepared to accept that the objective gravity of the offence is to be evaluated in the setting in which it occurred. It commenced relatively shortly after the offender discovered that he had the HIV virus, a matter that, as I have said, caused him a very high degree of stress. That context certainly goes some way towards explaining his behaviour, although it does not for one moment excuse it. The fact remains that the offender sought to act as he did in order to enrich himself. Any other consideration in the circumstances pales into insignificance (emphasis added).

In the case of R v Hughes [2020] NSWDC 98, which involved a conspiracy to defraud the Commonwealth, the offender suffered from diabetes mellitus and hypertension and the sentencing occurred in the context of the COVID-19 pandemic. Mahoney DCJ stated at [97] that:

[T]he weight given to the illnesses suffered by the offender and the weight given to considerations concerning the Covid-19 virus must be assessed in light of all of the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and his health considerations (emphasis added).

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3.3 Weight given to physical condition depends upon circumstances of the case

The weight given to an offender’s physical health will depend upon the circumstances. In R v Simon [2003] NSWCCA 147, Sheller JA commented at [33] that:

[H]ealth and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. The variety and combination of circumstances are legion and an appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life (emphasis added). 15

In R v Simon [2003] NSWCCA 147, the offender had sought leave to appeal the sentence imposed on two grounds including the fact that she was suffering from a skin disease called rosacea which had not been identified at the time of sentencing. In re-sentencing, Sheller JA observed at [43] that:

There is no doubt that imprisonment imposes upon the applicant peculiar hardship because of her skin condition. There is evidence that proper treatment may be delayed and may not be obtained until she is released…Necessarily to the extent that imprisonment is harder for her because of her health, her condition should be considered when determining the amount of the head sentence. It is a matter to be brought into the balance (emphasis added). 

Similarly in R v Liles [2012] NSWSC 1249, the offender was convicted for her involvement in a tax avoidance scheme. The offender was aged 65 years and suffered from numerous health conditions including hypertension, non-insulin dependent diabetes, hepatitis and benign skin lesions. The offender also had a history of heart disease and cancer. The Court accepted evidence that the offender’s life expectancy was 7 years. The Court held at [151]:

Ms Liles’ offending was sustained over a long time. It was planned and deliberate offending, involving a significant breach of trust on the part of a qualified and highly placed accountant. As observed in Hili at [63], detection of sophisticated tax fraud such as this, which affects the entire community, is difficult. The sentence imposed must thus have both a punitive and a deterrent effect. Also to be considered in this case, however, is the evidence of Ms Liles’ ill health and its ongoing impact and the other relevant circumstances to which I have referred. On that evidence, it seems to me that some amelioration of the minimum custodial sentence which would otherwise have to be imposed upon her, must result (emphasis added).

Likewise, in the Commonwealth fraud case of R v Huston; ex parte DPP (Cth) [2011] QCA 350, the offender was aged 74 years and suffered from a heart condition and thyroid dysfunction. The Court held at [60]:

Henke was clearly the instigator and prime mover of the scheme. He devised it and actively promoted it through his agents Miller and Northam. He did so for personal gain. In his case a sentence of seven years’ imprisonment would have been appropriate but his personal circumstances of age and ill health are not to be entirely disregarded. Accordingly, the sentence should be one of six years’ imprisonment (emphasis added).

For further commentary on age, see: Age.

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Notes:

  1. See also R v Martin (1990) 47 A Crim R 168, 173.
  2. See also R v Sopher (1993) 70 A Crim R 570, cited in the federal case of Kaye v The Queen [2004] WASCA 227, [32] and state sentencing case Anastasiou v The Queen [2010] NSWCCA 100, [23].
  3. Affirmed in federal sentencing cases Grenfell v The Queen [2009] NSWCCA 162, [32]; Leighton v The Queen [2010] NSWCCA 280, [35]; Sayed v The Queen [2012] WASCA 17, [100]; Ljuboja v The Queen [2011] WASCA 143, [103]; Kaye v The Queen [2004] WASCA 227, [32]; Baladjam v The Queen [2018] NSWCCA 304 [230]; and state sentencing cases HFM v Western Australia [2012] WASCA 217, [53]; R v Quinn [2012] SASCFC 102, [38]; R v Gilby [2012] SASCFC 94; R v Hill [2011] SASCFC 109; Dosen v The Queen [2010] NSWCCA 283, [23]; Anastasiou v The Queen [2010] NSWCCA 100, [22]; Western Australia v CGT [2018] WASCA 226, [80]. The approach adopted in Grenfell was affirmed in federal sentencing cases R v Ogden [2014] QCA 89, [11].
  4. The two-limbed test has been affirmed in state sentencing case R v Ireland [2012] SASCFC 120, [32 – 34]. See also federal sentencing cases Sayed v The Queen [2012] WASCA 17, [100]; Ljuboja v The Queen [2011] WASCA 143, [103]; and Kaye v The Queen [2004] WASCA 227, [32].
  5. R v Badanjak [2004] NSWCCA 395, [11], affirmed in Leighton v The Queen [2010] NSWCCA 280, [36] and state sentencing cases R v Sumpton (No 4) [2015] NSWSC 684, [73]; and Dosen v The Queen [2010] NSWCCA 283, [23].
  6. DPP (Cth) v Munro [2019] VSCA 89, [96].
  7. DPP (Cth) v Munro [2019] VSCA 89, [99].
  8. R v Smith (1987) 44 SASR 587, 589 (King CJ).
  9. See also Pfeiffer v The Queen [2009] NSWCCA 145, [15].
  10. See also Leighton v The Queen [2010] NSWCCA 280. See further state sentencing case R v Penalosa-Munoz [2004] NSWCCA 33 where Levine and Barr JJ discuss at [14] that imprisonment for offenders with the HIV virus may be more burdensome than for other offenders.
  11. R v Cerantonio & Ors [2019] VSC 284, [280]–[285].
  12. R v Smith (1987) 44 SASR 587 cited in Grenfell v The Queen [2009] NSWCCA 162, [32].
  13. Applied in Western Australia v CGT [2018] WASCA 226, [80].
  14. See also state sentencing case R v BJW [2000] NSWCCA 60, [31] where it was noted that where ill health is considered to be relevant to the determination of a sentence, the extent of the mitigation is to be balanced against the seriousness of the offence. For further commentary on age, see: Age.
  15. See also R v Sopher (1993) 70 A Crim R 570, cited in the federal case of Kaye v The Queen [2004] WASCA 227, [32] and state sentencing case Anastasiou v The Queen [2010] NSWCCA 100, [23].