Citation: Application of Todd Douglas Little pursuant to s.78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 1658
Court: Supreme Court of New South Wales
Date: 21 November 2014
Judge: Wilson J
Background
The applicant had pleaded guilty in 2004 to manufacturing and supplying not less than a large commercial quantity of methylamphetamine, together with several firearms and weapons offences. The manufacturing operation ran for approximately two years, producing around nineteen kilograms of methylamphetamine at 75% purity, sold to a member of an outlaw motorcycle gang for between two and two-and-a-half million dollars. In February 2005, Howie J sentenced the applicant to 22 years imprisonment with a non-parole period of 16 years and 6 months. A subsequent appeal to the Court of Criminal Appeal was dismissed in 2006.
The applicant brought this Part 7 application under s.78(1) of the Crimes (Appeal and Review) Act 2001, seeking referral of his sentence to the Court of Criminal Appeal. He relied on two grounds: a psychiatric opinion obtained in November 2013 said to constitute new evidence of a mitigating circumstance not fully before the sentencing judge, and an alleged error by Howie J in failing to find "special circumstances" under s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (which, if found, would have allowed the court to vary the usual ratio between the non-parole period and the total sentence in the applicant's favour).
The Attorney General for New South Wales opposed the application.
Legal Issues
- Whether the new psychiatric opinion constituted evidence giving rise to a "doubt or question as to a mitigating circumstance" sufficient to justify referral under s.78 and s.79 of the Crimes (Appeal and Review) Act 2001.
- Whether the sentencing judge erred in failing to find special circumstances based on the applicant's psychiatric condition.
- Whether, taken together, the new evidence and the alleged sentencing error generated the requisite "sense of unease or disquiet" that would warrant referral to the Court of Criminal Appeal.
Decision
Wilson J applied the established test under Part 7 of the Act: a referral is warranted only where the material before the court gives rise to a sense of unease or disquiet in allowing the sentence to stand. The court characterised this as an administrative function, available only after all ordinary appeal avenues have been exhausted.
On the question of the new psychiatric evidence, the court found that the 2013 opinion from Dr Nielssen did not add materially to what had already been before Howie J at sentencing. Some evidence of psychiatric illness had been before the sentencing judge, and the Court of Criminal Appeal had already noted in 2006 that there was no basis to find the sentencing judge had failed to take that subjective material into account. Notably, the ground relating to the applicant's illness and the hardship of custody had been expressly abandoned by experienced Senior Counsel at the 2006 appeal.
The court also rejected the special circumstances argument. The sentencing judge had considered the issue and declined to make such a finding, a conclusion open on the evidence. The applicant's conduct throughout the proceedings, including his capacity to give instructions and his rational engagement with the court, was inconsistent with any suggestion that his psychiatric condition was not adequately recognised or managed at the time of sentence.
Overall, the court found the sentence, while stern, was one already reviewed and upheld by the Court of Criminal Appeal. The gravity of the offending, the significant financial profit involved, and the leniency inherent in the wholly concurrent sentence structure all told against any sense of unease sufficient to justify a further referral.
Orders Made
- The application was refused.
Key Takeaways
- Under s.78 of the Crimes (Appeal and Review) Act 2001, a Part 7 application is an administrative remedy of last resort, available only after all criminal proceedings, including appeals, are finalised.
- The threshold test requires the material to generate a genuine "sense of unease or disquiet" about the sentence; the mere existence of new psychiatric evidence does not automatically satisfy this threshold.
- Where a ground of appeal was expressly abandoned by experienced counsel in prior appeal proceedings, its resurrection in a Part 7 application faces significant obstacles, particularly where the abandonment itself suggests no legitimate complaint existed at the time.
- No error was established in the sentencing judge's refusal to find special circumstances where the applicant had received appropriate treatment, demonstrated capacity to participate in proceedings, and the psychiatric condition had been considered as part of the subjective case at sentence.
- In dismissing the application, the court emphasised that the severity of an otherwise lawfully imposed sentence, already reviewed on appeal, does not of itself create the unease required to enliven the Part 7 referral power.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss.78, 79
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.44(2)
- Drugs Misuse and Trafficking Act 1985 (NSW), ss.24(2), 25(2)
- Firearms Act 1996 (NSW), ss.7(1), 62(1)(b)
- Weapons Prohibition Act 1998 (NSW), s.7(1)
Cases:
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application of Victor Makarov pursuant to s.78 of the Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1468
- R v Walsh; R v Little (unreported, Supreme Court, 28 February 2005)
- Walsh v The Queen; Little v The Queen (2006) 168 A Crim R 237
- R v Fidow [2004] NSWCCA 172
- Caristo v R [2011] NSWCCA 7
- Fitzpatrick v R [2010] NSWCCA 26