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Court of Criminal Appeal 10 November 2021

GAR v R

[2021] NSWCCA 265

Theft & property

Citation: GAR v R [2021] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 10 November 2021
Judge(s): Macfarlan JA, R A Hulme J, Wright J (Wright J delivering the leading judgment, with the others agreeing)

Background

The applicant, referred to throughout as GAR, sought leave to appeal against a sentence imposed in December 2003 for armed robbery with wounding committed at a Sydney hotel in May 2000. GAR had committed the robbery while on parole for earlier armed robbery convictions, and the sentencing judge structured a complex series of sentences to account for multiple offences, including unrelated Queanbeyan offences sentenced at the same time.

The sentence for the Criterion Hotel robbery was 17 years' imprisonment commencing 5 October 2010, with a non-parole period of 10 years and 7 months. The application for leave to appeal was not filed until 31 March 2021, more than 17 years after sentence was imposed. An extension of time was therefore required before any ground could be pursued.

GAR was unrepresented and had previously brought related proceedings in the Court of Criminal Appeal in 2010. The current application raised three grounds: manifest excess, a fresh evidence ground relating to a diagnosis of cirrhosis of the liver, and a ground relating to the impact of COVID-19 pandemic restrictions on his conditions of custody and prospects of parole.

  • Whether an extension of time should be granted to bring a leave application filed more than 17 years out of time
  • Whether the sentence for the Criterion Hotel robbery was manifestly excessive
  • Whether fresh evidence of a post-sentencing diagnosis of cirrhosis of the liver (and a possible earlier hepatitis B infection) warranted intervention on sentence
  • Whether the impact of COVID-19 restrictions on prison conditions and external leave programs provided a basis for the Court of Criminal Appeal to intervene in the sentence

Decision

Manifest excess (Ground 1): The court declined to extend time in relation to the manifest excess ground. The extension of time was refused because no sufficient basis was identified to support the ground, and it was not in the interests of justice to grant the extension. The application on this ground therefore failed at the threshold.

Cirrhosis diagnosis (Ground 2): Time was extended and leave was granted to allow this ground to be argued. The court accepted that GAR had developed cirrhosis after sentencing, and considered whether this amounted to fresh evidence warranting a reduction in sentence. However, the court was not persuaded that the medical condition was sufficient to justify intervention. GAR had not established the necessary nexus between the condition and the sentencing exercise, and the ground was ultimately dismissed.

COVID-19 restrictions (Ground 3): Again, time was extended and leave granted. The court acknowledged that COVID-19 restrictions had made custody more onerous and may have affected GAR's participation in external leave programs. However, following the reasoning in earlier decisions, including Toller v R [2021] NSWCCA 204 and Hayward v R (Cth) [2021] NSWCCA 63, the court held that the impact of pandemic restrictions on prison conditions is a matter for the executive government, not the courts. Under the principle in House v The King, the Court's power to intervene is not enlivened simply because conditions of custody have become harder after sentencing. This ground was also dismissed.

Orders Made

  • Time extended to 8 April 2021 for filing of the notice under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) in relation to the second and third grounds of appeal only
  • Leave to appeal granted in respect of the second and third grounds of appeal
  • Appeal dismissed

Key Takeaways

  • A 17-year delay in filing a leave application requires a compelling basis for an extension of time; where the underlying ground lacks merit, the extension will be refused in the interest of justice.
  • Post-sentencing medical developments may, in appropriate circumstances, constitute fresh evidence warranting consideration on appeal, but the applicant must establish a sufficient connection to the sentencing exercise for the evidence to justify intervention.
  • Under the principle affirmed in R v Munday (1981) 2 NSWLR 177 and confirmed in Toller v R [2021] NSWCCA 204, the effect of COVID-19 restrictions on prison conditions and programs is a matter exclusively for the executive government, not a ground for appellate courts to reduce a sentence.
  • The Court of Criminal Appeal's power to intervene remains confined to error of the kind identified in House v The King (1936) 55 CLR 499; hardship arising from post-sentencing events does not itself constitute such error.
  • In dismissing all three grounds, the Court confirmed that granting leave to appeal on a ground does not guarantee success: leave may be granted to permit proper consideration, even where the ground ultimately fails on the merits.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Administration of Sentences) Act 1999 (NSW), s 160
- Crimes Act 1900 (NSW), ss 90A, 97, 98, 154A, 578A

Cases:
- House v The King (1936) 55 CLR 499
- Betts v The Queen (2016) 258 CLR 420
- Kentwell v The Queen (2014) 252 CLR 601
- Toller v R [2021] NSWCCA 204
- Hayward v R (Cth) [2021] NSWCCA 63
- R v Munday [1981] 2 NSWLR 177
- GAR v R (No 1) [2010] NSWCCA 163
- GAR v R (No 2) [2010] NSWCCA 164
- GAR v R (No 3) [2010] NSWCCA 165
- Wright v R [2016] NSWCCA 122
- Khoury v R [2011] NSWCCA 118
- Iglesias v R [2006] NSWCCA 261
- Anastasiou v R [2010] NSWCCA 100
- R v Jacobs [2001] NSWCCA 212