Citation: [2018] NSWSC 99
Court: Supreme Court of New South Wales
Date: 13 February 2018
Judge(s): Fagan J
Background
The applicant was convicted in the Local Court at Parramatta in November 2016 of dishonestly obtaining a financial advantage, having induced an acquaintance of 30 years to part with over $96,000 through false representations about needing legal funding and holding inaccessible wealth. He did not appear at the hearing. He was sentenced to 20 months' imprisonment with a non-parole period of 15 months.
The applicant pursued multiple avenues of challenge. An application to annul the conviction was refused by the magistrate, and a subsequent District Court application to set aside that refusal was dismissed. A separate District Court appeal against the severity of his sentence was also dismissed, with the sentencing term confirmed. The severity appeal had focused on the applicant's diabetes, heart condition, and kidney disease, and included material about elevated PSA levels indicating a possible prostate cancer diagnosis.
The applicant then filed the present application in the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into his sentence. He argued that evolving medical evidence about a likely prostate cancer diagnosis constituted a mitigating circumstance that had not been properly addressed in the severity appeal.
Legal Issues
- Whether the available medical evidence about a possible prostate cancer diagnosis raised a "doubt or question" about a mitigating circumstance sufficient to warrant an inquiry under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW).
- Whether the Court was entitled to refuse to consider the application under s 79(3) on the basis that the subject matter had already been fully dealt with in the District Court severity appeal, and that no special facts or circumstances justified further action.
Decision
Fagan J found that the essential subject matter of the application, namely the possibility that the applicant suffered from prostate cancer, had already been before the District Court on the severity appeal. Medical records annexured to an affidavit in that proceeding had shown elevated PSA levels since 2012. No positive diagnosis of prostate cancer had been made, either at the time of the appeal or at the time of the present application. Nothing materially had changed.
Applying s 79(3), his Honour held that the matter had been fully dealt with below and that no special circumstances existed to justify further examination. He noted in particular that the applicant was due for release on parole within approximately two weeks of the decision, which further weighed against intervention.
His Honour also addressed the merits in the alternative, finding that even without s 79(3), the material would not have caused him any unease or disquiet about the sentence standing. Justice Health could manage investigation and treatment of a suspected cancer over the short remaining period of incarceration. Taking into account the seriousness of the offence, the applicant's extensive prior record, the absence of any restitution, and no signs of contrition or remorse, the health considerations would not have warranted a reduction in the sentence.
Orders Made
- The Court refused, pursuant to s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), to consider or otherwise deal with the application filed under s 78 of that Act.
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may refuse to consider a sentence inquiry application where the subject matter was already fully dealt with in a prior appeal, unless special facts or circumstances justify further action.
- A possibility of prostate cancer evidenced by elevated PSA markers, which was before the District Court on a severity appeal, did not constitute materially new or changed circumstances warranting a fresh inquiry by the Supreme Court.
- Where no positive diagnosis has been made, health concerns about a suspected but unconfirmed condition did not generate the "unease or disquiet" required under s 79(2) to proceed with an inquiry.
- Imminent eligibility for parole release was a relevant consideration in assessing whether further intervention into a sentence was warranted.
- In the alternative merits assessment, the court weighed the seriousness of the fraud offence, the offender's prior record, the absence of restitution, and the lack of remorse against the health considerations, and found those factors collectively did not support a reduction in the term imposed.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 78, 79(2), 79(3)
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(3)
Cases:
- Application of Peter James Holland [2008] NSWSC 251