Citation: Wright v R [2016] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 23 June 2016
Judges: Basten JA; R A Hulme J; Fagan J
Background
The applicant, an elderly man sentenced for historical child sexual offences, sought leave to appeal against sentences imposed in the District Court. The offences involved sexual assaults on young children and were prosecuted as historical matters under the Crimes Act 1900 (NSW).
At the time of sentencing, the applicant was in poor health and of advanced age. The sentencing judge expressly took those factors into account, finding that imprisonment would be harder for the applicant than it would be for a younger, healthier person. The result was a sentence described as already lenient, including a non-parole period of two years.
After sentencing, the applicant received a diagnosis of Alzheimer's disease. The condition was found to have been present but undiagnosed at the time of the sentence hearing. The applicant sought to rely on that diagnosis as fresh evidence warranting a reduction in sentence.
Legal Issues
- Whether a post-sentence Alzheimer's diagnosis, representing a condition that existed but was undiagnosed at the time of sentencing, qualifies as "fresh evidence" or "new evidence" that the Court of Criminal Appeal may receive.
- Whether receiving that evidence was necessary to prevent a miscarriage of justice.
- Whether the diagnosis would have made a significant difference to the sentence even if it had been before the sentencing judge.
- What principles govern the admission of evidence not before the sentencing judge, particularly in the context of identifying error at the first stage of a sentence appeal.
Decision
The Court refused leave to appeal. All three judges agreed, with R A Hulme J delivering the principal judgment and Basten JA and Fagan J adding separate reasons.
The Court provided a detailed restatement of the principles governing fresh or new evidence in sentence appeals, drawing on recent High Court authority in Betts v The Queen [2016] HCA 25 and Kentwell v The Queen [2014] HCA 37. Those principles require the Court first to identify error in the sentencing judge's exercise of discretion before any question of resentencing arises. Error is ordinarily identified from the material before the sentencing court. While the Court retains flexibility to receive fresh or new evidence to avoid a miscarriage of justice, proper grounds must be established, and evidence is only "fresh" if it could not have been obtained at the time of the sentence hearing through the exercise of reasonable diligence.
The Court accepted that the Alzheimer's diagnosis was a post-sentence development and that the condition was undiagnosed at the time of the sentence hearing. However, the Court found that the evidence, even if received, would not have made a significant difference. The sentencing judge had already substantially discounted the sentence to account for the applicant's poor health and advanced age. The Alzheimer's diagnosis represented a deterioration in a condition whose existence and general effect had already been recognised and given significant weight.
R A Hulme J concluded that the evidence could but should not be received by the Court, and that even if it were, it was insufficient to establish that a miscarriage of justice had occurred or to warrant a fresh assessment of sentence. The distinction drawn in the judgment between this case and prior cases such as R v AB (which involved a significantly longer limiting term and different sentencing considerations) was that the degree of hardship attributable to incarceration did not carry the same weight here as in those other cases.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that, before any question of resentencing arises in a sentence appeal, an applicant must first establish error on the part of the sentencing judge in the manner described in House v The King (1936) 55 CLR 499.
- A post-sentence medical diagnosis does not automatically qualify as fresh evidence capable of enlivening appellate intervention, particularly where the underlying condition and its general effects were already known to and taken into account by the sentencing court.
- In dismissing the application, the Court applied the principle that the appellate court retains flexibility to receive new evidence to prevent a miscarriage of justice, but that proper grounds must be established; that flexibility is not a general licence to run a different case on appeal.
- Where ill-health and advanced age have already exerted a major influence in producing a lenient sentence, a more precise post-sentence diagnosis of an existing condition is unlikely, of itself, to establish that a lesser sentence is warranted in law.
- The decision illustrates the distinction, restated from Betts, between evidence going to the identification of first-instance error (first stage) and evidence of post-sentence rehabilitation or circumstances relevant to resentencing (second stage); different considerations apply to each.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 73, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44
- Criminal Appeal Act 1912 (NSW) ss 5, 6
Cases:
- Betts v The Queen [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499
- R v Vachalec [1981] 1 NSWLR 351
- R v Lanham [1970] 2 NSWR 217
- R v Deng [2007] NSWCCA 216; 176 A Crim R 1
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87
- R v AB [2015] NSWCCA 57
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- Cornwell v R [2015] NSWCCA 269
- Turkmani v R [2014] NSWCCA 186; 244 A Crim R 186
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368