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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 29 June 2010

List of subheadings:

Scope of s 16A(2)(m)

Commentary on Physical Condition as a sentencing factor under the Crimes Act 1914 (Cth)

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

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Scope of s16A(2)(m)

An offender’s physical condition may be a relevant factor in determining an appropriate federal sentence where imprisonment will be a greater burden on the offender by reason of his/her state of health.

See Grenfell v The Queen [2009] NSWCCA 162, [32] where 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.

See also R v Simon [2003] NSWCCA 147; (2003) 142 A Crim R 166, where Sheller JA at [33] extracted the following passage from 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.

See also Pfeiffer v The Queen [2009] NSWCCA 145, [15]; Kaye v The Queen [2004] WASCA 227, [32].

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: R v Smith (1987) 44 SASR 587 cited in Grenfell v The Queen [2009] NSWCCA 162, [32] (see above).

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 (with whom Simpson and Buddin JJ agreed) 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.

Cf Parry v The Queen [2003] WASCA 222, where the applicant 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.

The weight given to an offender’s physical health will depend upon the circumstances.

In R v Simon [2003] NSWCCA 147; (2003) 142 A Crim R 166, Sheller JA commented at [33] that:

…health 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.

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].

In R v Simon, the applicant 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.

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

In R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362, the Court assessed whether the sentencing judge had appropriately considered the applicant’s postoperative function problems arising from bowel cancer surgery. Upholding the appeal, 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.

See also R v Simon [2003] NSWCCA 147; (2003) 142 A Crim R 16 (above).

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