Citation: R v Bradley [2004] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 6 April 2004
Judge(s): Studdert J (leading judgment), James J, Dunford J
Background
The appellant, a 22-year-old woman, pleaded guilty in the District Court to supplying a prohibited drug, with four further drug offences taken into account on a Form 1. She had been dealing amphetamine at a street level over several months, breaking gram quantities into smaller deals and earning significant sums on behalf of a supplier. Cannabis and ecstasy were also found in her possession.
Judge Blackmore SC imposed a two-year term of imprisonment with a non-parole period of one year, finding special circumstances. The sentencing judge gave the appellant a 25% discount for an early guilty plea and acknowledged her full cooperation with police, genuine contrition, and apparent desire to reform.
The appellant then sought leave to appeal against that sentence in the Court of Criminal Appeal, relying on a single ground: that her sentencing counsel had failed to put before the sentencing judge evidence of a serious back injury she had suffered in a motor vehicle accident in February 2002.
Legal Issues
- Whether the sentencing proceedings miscarried because trial counsel failed to present evidence of the appellant's back injury and resulting disability.
- Whether fresh evidence concerning the appellant's medical condition should be received on appeal.
- Whether, had that medical material been before the sentencing judge, it would have been likely to produce a lesser sentence.
Decision
The Court considered fresh evidence, received conditionally, including affidavits from the appellant and her solicitor, medical reports, and physiotherapy records. It also noted that the pre-sentence Probation and Parole Service report, which was before the sentencing judge, had already referred to the appellant's back injury and her use of cannabis to manage the associated pain.
Studdert J found that the fractures the appellant had sustained were stable and required no particular medical treatment beyond conservative management, including an appropriate medication regime. Such treatment was available within the prison system. Medical records showed the appellant had been seen by prison medical officers on at least eight occasions. While the appellant claimed her pain had worsened in custody, this did not accord with the medical history in evidence.
The Court concluded that, at the time of sentencing, there was no serious risk that imprisonment would have a gravely adverse effect on the appellant's health. Accordingly, even if the additional medical material had been before the sentencing judge, it was unlikely to have led to a lesser sentence.
Because the additional evidence would not have been likely to influence the outcome, it was inadmissible on appeal under the test in R v Goodwin (1990) 51 A Crim R 328. The Court held that the sentencing process had not miscarried and refused leave to appeal. James J and Dunford J both agreed.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Fresh evidence tendered on a sentence appeal is inadmissible unless the court is satisfied it would likely have produced a different sentencing outcome, applying the principle in R v Goodwin.
- Where medical material about an offender's condition was already partly before the sentencing judge (through a pre-sentence report), an argument that the sentencing process miscarried due to non-disclosure faces a higher threshold.
- Refusing leave to appeal, the Court of Criminal Appeal found that the availability of equivalent medical care within the prison system undermined the contention that imprisonment posed a serious risk to the appellant's health.
- No error was established in the original sentence of two years imprisonment with a one-year non-parole period, notwithstanding the appellant's youth, early plea, cooperation with police, and personal circumstances.
- A claim that deficient legal representation caused a miscarriage of justice will not succeed if the omitted material would not, on the evidence, have changed the result.
Legislation and Cases Referenced
Cases:
- R v Burrell (2000) 114 A Crim R 207
- R v Goodwin (1990) 51 A Crim R 328
- R v Smith (1987) 44 SASR 587
Legislation: No specific legislation was cited in the text provided.