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Court of Criminal Appeal 17 September 2014

Turkmani v R

[2014] NSWCCA 186

Also reported as (2014) 244 A Crim R 402
DrugsPublic order & justice offences
SENTENCING SENTENCING PROCEDURE APPLICATION OF DE SIMONI PRINCIPLE THRESHOLD FOR ADMISSION OF MATERIAL MET PAROLE PERIOD APPEAL DISMISSED.

Citation: Turkmani v R [2014] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 17 September 2014
Judges: Hoeben CJ at CL, Beech-Jones J, Hamill J

Background

The applicant was convicted in the District Court of two offences arising from events on 8 October 2010. The first offence involved destroying items he knew would be required as evidence in judicial proceedings, contrary to s 317(a) of the Crimes Act 1900 (NSW). The second was possession of a drug manufacturing apparatus (a condenser) with intent that it be used to manufacture prohibited drugs, contrary to s 24A(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW).

The factual background involved the applicant purchasing laboratory equipment, then burning items in a drum in his backyard while police waited nearby for a search warrant. Police subsequently found chemicals, drug precursors, laboratory glassware, and a publication on amphetamine synthesis at his premises.

The applicant received a fixed term of one year for the first offence and three years (with an 18-month non-parole period) for the second, producing a combined effective non-parole period of two years. He sought leave to appeal the sentences and also applied to adduce fresh medical evidence concerning the treatment of a pre-existing knee condition while in custody.

  • Whether the sentencing judge erroneously sentenced the applicant on facts constituting a more serious offence than charged, contrary to the principle in R v De Simoni (1981) 147 CLR 383, in relation to both the first and second offences
  • Whether the sentence imposed for the second offence was manifestly excessive
  • Whether fresh medical evidence concerning the applicant's treatment in custody met the threshold for admission
  • Whether that medical evidence warranted any reduction in the applicant's non-parole period

Decision

The De Simoni grounds (first and second offences). The applicant argued that, in describing the first offence, the sentencing judge characterised his conduct as designed to "frustrate" judicial proceedings, which the applicant contended imported elements of the more serious offence under s 319 of the Crimes Act. The Court rejected this, finding the description was an accurate characterisation of the elements of s 317(a) and did not import any additional mental element beyond what the offence required. In relation to the second offence, the Court found the sentencing judge correctly assessed the level of criminality involved and did not sentence the applicant as though he possessed a mental element beyond that required by the charge.

Manifest excess for the second offence. The Court found the sentencing judge had correctly characterised the applicant's level of criminality. The sentence was not unreasonable or unjust, and no error warranting intervention was established.

Fresh medical evidence. The applicant sought to adduce evidence that Justice Health had failed to provide timely and appropriate treatment for his knee condition, including adequate pain relief, wound dressing, and necessary surgery. The Court accepted the threshold for admission had been met, noting the applicant's medical situation had proven more oppressive in custody than the sentencing judge would have contemplated.

Whether the medical evidence warranted a reduction. Despite accepting the evidence, the Court declined to reduce the non-parole period. The sentencing judge had already given considerable weight to the applicant's medical condition, and the sentence was at the low end of the available range given the seriousness of the conduct and the applicant's otherwise poor subjective case. Hamill J added a pointed observation that Justice Health's failure to provide timely treatment was "most unsatisfactory" and that the authorities were now on notice that the treating doctor believed the inadequate treatment risked permanent disability.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from punishing an offender for a more serious offence than the one charged, but it does not prevent the court from accurately describing the conduct that satisfies the elements of the offence actually charged.
  • Where a sentencing judge's language mirrors the elements of the offence before the court rather than importing elements of a distinct, graver offence, no De Simoni error arises.
  • Fresh medical evidence concerning deterioration of a prisoner's condition in custody can meet the threshold for admission on appeal, but admission does not automatically result in a reduction of sentence.
  • In dismissing the appeal on the medical evidence ground, the Court of Criminal Appeal weighed the fresh evidence against the sentence already being at the low end of the range, and found no warrant for further reduction.
  • Hamill J's additional remarks placed correctional authorities on formal notice of the Court's concern about the standard of medical care provided, signalling that inadequate in-custody treatment is a matter the Court takes seriously even where it does not alter the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 311, 312, 315, 317, 319
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A, 33AB
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code (WA), ss 391, 393

Cases:
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Iglesias v R [2006] NSWCCA 261
- House v R [1936] HCA 40; 55 CLR 499
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- R v BD [2001] NSWCCA 184; 122 A Crim R 28
- R v Keir [2004] NSWCCA 106
- Bailey v R (1988) 35 A Crim R 458
- R v Smith (1987) 44 SASR 587