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Court of Criminal Appeal 21 February 2000

REGINA v. AZAR

[2000] NSWCCA 26

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE FRESH EVIDENCE

Citation: Regina v Azar [2000] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 21 February 2000
Judge(s): Grove J; Greg James J

Background

The appellant was sentenced in the District Court at Newcastle in June 1998 following convictions on two counts of break, enter and steal and one count of receiving stolen goods, with 16 further matters taken into account on a Form 1. The sentencing judge also had before him an extensive prior record of dishonesty offences stretching back to 1972, evidence of drug addiction, and the fact that several of the current offences were committed while the appellant was on parole.

The sentencing judge imposed a total effective sentence of approximately 12 years, comprising a fixed four-year term for receiving followed by an eight-year cumulative term (with a minimum of nine years and an additional three years in total) for the break and enter counts. The judge expressly treated the appellant's recidivism as a significant factor, viewing the offending as the manifestation of a continuing attitude of disobedience to the law rather than an uncharacteristic lapse.

On appeal, the Court of Criminal Appeal was asked to receive fresh medical evidence that had not been available at sentencing. That evidence revealed the appellant's health had deteriorated substantially since the original sentence was imposed.

  • Whether the Court should admit fresh evidence of a significant deterioration in the appellant's medical condition that post-dated the original sentence
  • Whether that fresh evidence, if admitted, justified intervention and re-sentencing
  • How the medical evidence bore on the sentencing judge's assessment of the appellant's prospects of recidivism and dangerousness to the community
  • Whether special circumstances existed warranting a lengthening of the additional term

Decision

The Court admitted the fresh evidence by way of affidavit. That material included hospital discharge summaries, clinical notes, and two medical reports from an associate professor. The reports disclosed that the appellant, already known to be Hepatitis C positive since 1993, had developed an active and chronic arthritic condition causing disabling musculoskeletal pain, ongoing joint inflammation, and significant loss of mobility. The medical opinion was that these symptoms would continue into the foreseeable future, rendering the appellant functionally disabled.

Greg James J found that, while the appellant's poor health had been mentioned at the sentencing hearing, the extent of the condition and its disabling consequences were not known to the sentencing judge. That judge had imposed a severe sentence in significant part to guard against the danger the appellant's recidivism posed to the community. The fresh evidence went directly to that assessment: a person rendered substantially immobile by chronic pain and joint disease presented a materially different risk profile than the sentencing judge had contemplated.

The Court concluded that the fresh evidence warranted intervention. The overall sentence was reduced, principally by shortening the fixed term on the receiving count from four years to two years, with the break and enter sentences restructured accordingly. Greg James J noted that the sentences for the break and enter offences should not be reduced below the level previously imposed on the appellant for comparable offending by another judge, and that, while special circumstances existed, they did not require any further lengthening of the additional term beyond the existing three years.

Grove J agreed with the judgment and noted that the formal sentences should be expressed as imprisonment rather than penal servitude, reflecting legislative changes since the original sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentences passed in the District Court quashed
  • In lieu of those sentences: a fixed term of two years' imprisonment on the receiving count, commencing 7 July 1997 and expiring 6 July 1999
  • On each of the two break, enter and steal counts: imprisonment for eight years cumulative on the fixed term and concurrent between themselves, comprising a minimum term of five years commencing 7 July 1999 and expiring 6 July 2004, and an additional term of three years commencing 7 July 2004 and expiring 6 July 2007

Key Takeaways

  • Fresh medical evidence demonstrating a substantial post-sentence deterioration in an offender's health can ground appellate intervention even where some medical history was before the sentencing court, provided the new evidence reveals a materially different picture.
  • A sentencing judge's assessment of community danger arising from an offender's recidivism is a proper subject of re-examination where fresh evidence substantially affects the offender's physical capacity to reoffend.
  • The Court of Criminal Appeal confirmed that the Veen (No 2) principle allowing prior criminal history to illuminate moral culpability and dangerous propensity remains relevant, but that propensity assessment must be consistent with all available evidence, including a prisoner's current physical condition.
  • In re-sentencing, the Court treated the level of sentence previously imposed on the same offender for comparable offending by a different judge as a practical floor, declining to reduce the break and enter sentences below that benchmark.
  • Formal sentences must be expressed in the terminology current at the time they are imposed: because legislation had changed since the original sentence, the Court expressed the substituted sentences as imprisonment rather than penal servitude.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (receiving stolen goods)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465