Citation: Cornwell v Regina [2015] NSWCCA 269
Court: Court of Criminal Appeal, New South Wales
Date: 14 October 2015
Judge(s): Basten JA, Hall J, Wilson J
Background
The applicant was sentenced in the District Court at East Maitland in October 2013 for three property offences: one count of stealing a motor vehicle and two counts of aggravated break and enter of a dwelling with intent to commit larceny. He received an aggregate sentence of five years and three months imprisonment, with a non-parole period of three years.
At the time of sentencing, a psychologist's report before the sentencing judge noted cognitive impairment and flagged Huntington's disease as a possible explanation. However, no formal diagnosis existed, and the connection between the applicant's behaviour and any neurological condition remained speculative. After sentencing, the applicant was formally diagnosed with Huntington's disease, a progressive neurological condition that can impair reasoning and produce impulsive behaviour.
The applicant sought leave to appeal out of time, relying on fresh medical evidence from two neurologists. He argued that the diagnosis was relevant both to his moral culpability at the time of offending and to the burden his condition placed on his imprisonment.
Legal Issues
- Whether fresh medical evidence of a post-sentencing diagnosis of Huntington's disease could be admitted on appeal, given that some symptoms existed at the time of sentencing
- Whether the diagnosis, had it been available at sentencing, would have reduced the applicant's assessed moral culpability and therefore diminished the weight given to personal and general deterrence
- Whether the diagnosis and the applicant's deteriorating physical condition justified a reduction in sentence due to the harsher conditions of imprisonment the condition entailed
- Whether a psychological explanation for the failure to adduce the medical evidence at sentencing was sufficient to justify admission of that evidence on appeal
Decision
Admission of fresh evidence: The Court admitted the medical evidence on appeal. A recognised exception to the general rule against fresh evidence applies where a medical condition existed at the time of sentencing, even if undiagnosed or imperfectly understood. Hall J found that the reasons for not adducing the evidence earlier were relevant to whether the discretion to admit should be exercised, and that a psychological explanation for that omission was sufficient justification in this case.
Moral culpability: The Court accepted that the diagnosis would, on the balance of probabilities, have warranted some reduction in the weight given to personal deterrence. However, Basten JA identified significant difficulties with the applicant's culpability argument. The offending was not isolated or impulsive, it was carried out with co-offenders who had no similar neurological explanation, and the causative link between the disease's documented characteristics and the specific conduct remained somewhat vague.
Harsher conditions of imprisonment: The more compelling basis for intervention was the effect of the applicant's condition on his experience of custody. The Court accepted that a deterioration in the applicant's physical and psychological health post-sentence derived from a condition present at the time of sentencing. Had that condition been properly diagnosed and placed before the sentencing judge, it would have warranted a sentencing reduction. That connection between the pre-existing condition and the harsher burden of imprisonment provided the primary justification for re-sentencing.
Re-sentence: The aggregate sentence was reduced by nine months to four years and six months, with the non-parole period reduced by six months to two years and six months, dating from the original commencement date of 24 October 2013.
Orders Made
- Extension of time granted for the applicant to seek leave to appeal
- Fresh medical evidence admitted
- Leave to appeal granted
- Original District Court sentence set aside
- Applicant re-sentenced to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and six months, commencing 24 October 2013 and expiring 23 April 2016
Key Takeaways
- An established exception permits fresh medical evidence to be admitted on a sentence appeal where a condition existed at the time of sentencing but was undiagnosed or not fully understood, and the interests of justice require it.
- The reasons why medical evidence was not placed before the sentencing court are relevant to the exercise of the discretion to admit it on appeal. A credible psychological explanation for not adducing the evidence was accepted as sufficient in this case.
- A post-sentencing deterioration in an applicant's health does not, of itself, justify interference with a sentence. However, where that deterioration stems from a condition present at the time of sentencing, the connection may provide a proper basis for re-sentencing.
- Reduced moral culpability arising from a neurological condition will be harder to establish where offending was not isolated, was carried out with others who share no such condition, and the causative link between the condition's characteristics and the specific conduct remains vague.
- Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, where an aggregate sentence is imposed on appeal, the Court must indicate what the individual sentences would have been had they been imposed separately.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 113(2), 154A(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)
Cases:
- Dudgeon v R [2014] NSWCCA 301
- Fordham v R (1997) 98 A Crim R 359
- Khoury v R (2011) 209 A Crim R 509
- R v Smith (1987) 44 SASR 587
- Turkmani v R [2014] NSWCCA 186