List of Subheadings
- 1. Overview
- 2. Operation of s 16A(2)(m)
- 3. Application of s 16A(2)(m)
The content on this page was last reviewed on 28 September 2017.
Recent cases alert
R v Cerantonio & Ors  VSC 284 — offender’s back injury increases onerous nature of custodial setting where debilitating degree of difficulty with toileting and stressful and embarrassing necessity of explaining needs to different prison staff.
Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their physical condition:
(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
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  NSWCCA 162, , the Court extracted the following passage from R v Smith (1987) 44 SASR, 587, 589, in which King CJ observed:
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  NSWCCA 147,  Sheller JA cited R v Sopher (1993) 70 A Crim R 570:
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.
2.1 Smith Principle
King CJ in R v Smith (1987) 44 SASR, 589, 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). 2
This test has been described as a ‘two-limbed test’ in the federal sentencing case R v Rockford  SASCFC 51, with it being sufficient to establish either limb to warrant mitigation at :
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). 3
However, in state sentencing case R v Badanjak  NSWCCA 395, Wood CJ at CL (McClellan AJA and Smart AJ agreeing) stated at , ‘it is only in relatively rare cases that the Smith principle is applicable.’ 4
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. 5 Referring to R v Smith and Grenfell, Price J (Simpson J and Howie AJ agreeing) held in Leighton v The Queen  NSWCCA 280, at :
[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). 6
In the insider trading case of R v De Silva  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]:
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). 7
In Merrill (a pseudonym) v The Queen  VSCA 189, the offender suffered from lung problems and coronary heart disease. Santamaria JA repeated the sentencing judge’s findings at , finding both limbs of Smith had been 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).
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. 8
In Pfeiffer v The Queen  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  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).
However in Parry v The Queen  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  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 federal sentencing case R v Massey  QCA 254, the Queensland Court of Appeal found at :
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). 9
Likewise in Leckie v Department of Human Services  SASC 197, the offender’s health condition was found to increase the burden of imprisonment. However Stanley J stated at  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.’
In Huynh v The Queen  NSWCCA 167 at , the new evidence sought to be admitted did not establish whether the offender’s health conditions required any medical treatment, and whether or not it could be provided within a custodial setting.
3. Application of s 16A(2)(m)
3.1 Physical condition must be balanced with level of criminality
The offender’s physical condition must be balanced with the level of criminality of the offence. King CJ held in R v Smith (1987) 44 SASR at 587:
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).
Similarly, Malcolm CJ (Murray and McLure JJ agreeing) stated in Kaye v The Queen  WASCA 227 at :
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 considerations: R v Sopher (1993) 70 A Crim R 570 (emphasis added). 10
In R v De Silva  NSWSC 243, Buddin J held that while the offender’s diagnosis of HIV was an understandable reason why the offender committed insider trading offences, it did not decrease the offender’s moral culpability. Buddin J noted at :
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).
3.2 Physical condition and circumstances of the case
The weight given to an offender’s physical health will depend upon the circumstances. In R v Simon  NSWCCA 147, Sheller JA commented at  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). 11
In R v Simon  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  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  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 :
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 , 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 Commonwealth fraud case R v Huston; ex parte DPP (Cth)  QCA 350, the offender was aged 74 years and suffered from a heart condition and thyroid dysfunction. The Court held at :
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.
3.3 Physical condition does not have to be life threatening
A physical condition does not have to be life threatening to be found to be a relevant mitigating factor.
In R v Miranda  NSWCCA 89, the Court assessed whether the sentencing judge had appropriately considered the offender’s post-operative function problems arising from bowel cancer surgery. Upholding the appeal, Dowd J stated at  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. 12
- See also R v Martin (1990) 47 A Crim R 168, 173. ↩
- Affirmed in federal sentencing cases Grenfell v The Queen  NSWCCA 162, ; Leighton v The Queen  NSWCCA 280, ; Sayed v The Queen  WASCA 17, ; Ljuboja v The Queen  WASCA 143, ; Kaye v The Queen  WASCA 227, ; and state sentencing cases HFM v Western Australia  WASCA 217, ; R v Quinn  SASCFC 102, ; R v Gilby  SASCFC 94; R v Hill  SASCFC 109; Dosen v The Queen  NSWCCA 283, ; Anastasiou v The Queen  NSWCCA 100, . The approach adopted in Grenfell was affirmed in federal sentencing cases R v Ogden  QCA 89, . ↩
- The two-limbed test has been affirmed in state sentencing case R v Ireland  SASCFC 120, [32 – 34]. See also federal sentencing cases Sayed v The Queen  WASCA 17, ; Ljuboja v The Queen  WASCA 143, ; and Kaye v The Queen  WASCA 227, . ↩
- Affirmed in Leighton v The Queen  NSWCCA 280,  and state sentencing cases R v Sumpton (No 4)  NSWSC 684, ; and Dosen v The Queen  NSWCCA 283, . ↩
- R v Smith (1987) 44 SASR, 589 (King CJ). ↩
- See also Pfeiffer v The Queen  NSWCCA 145, . ↩
- See also Leighton v The Queen  NSWCCA 280. See further state sentencing case R v Penalosa-Munoz  NSWCCA 33 where Levine and Barr JJ discuss at  that imprisonment for offenders with the HIV virus may be more burdensome than for other offenders. ↩
- R v Smith (1987) 44 SASR 587 cited in Grenfell v The Queen  NSWCCA 162, . ↩
- Distinguished in federal sentencing case R v Melrose  QCA 202, [29 – 30]. ↩
- See also state sentencing case R v BJW  NSWCCA 60 where it was held 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. ↩
- See also R v Sopher (1993) 70 A Crim R 570, cited in the federal case of Kaye v The Queen  WASCA 227,  and state sentencing case Anastasiou v The Queen  NSWCCA 100, . ↩
- See also R v Sopher (1993) 70 A Crim R 570, cited in the federal case of Kaye v The Queen  WASCA 227,  and state sentencing case Anastasiou v The Queen  NSWCCA 100, . ↩