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Court of Criminal Appeal 24 June 2022

Barnes v R

[2022] NSWCCA 140

Also reported as (2022) 299 A Crim R 483
Assault & violence
CRIMINAL APPEALS FRESH EVIDENCE ON SENTENCE APPEAL WHEN ADMISSIBLE APPLICANT A SCHIZOPHRENIC SENTENCE APPEAL SENTENCING

Citation: Barnes v R [2022] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 24 June 2022
Judge(s): Gleeson JA; Hamill J (primary judgment); Ierace J

Background

The appellant pleaded guilty in the District Court in March 2019 to intentionally strangling a stranger with a bike chain and a related common assault. The strangling offence arose from a premeditated attack: the appellant followed his victim from the University of Sydney over a period exceeding half an hour before ambushing her at her apartment building, pulling her to the ground with a chain around her neck until she briefly lost consciousness. A bystander's intervention ended the attack. A separate stalking offence was taken into account on a Form 1.

The sentencing judge imposed a total effective term of 6 years and 11 months, with a non-parole period of 4 years and 10 months. She allowed a 25% guilty plea discount and found special circumstances arising from the appellant's established mental health conditions. However, the sentencing judge also found no evidence that a custodial sentence would weigh more heavily on the appellant because of those conditions.

The appeal turned on the absence from the sentencing hearing of Justice Health medical records and a psychiatric report. The appellant, who suffers from schizophrenia, had refused to authorise his lawyers to access those records before sentence. He sought to tender that material on appeal as "fresh evidence," arguing it would have produced more favourable findings about his experience in custody.

  • Whether Justice Health records and psychiatric evidence, not tendered at sentence, were admissible as fresh evidence on appeal to avoid a miscarriage of justice
  • Whether the sentencing judge's finding that custody was not more onerous for the appellant by reason of his mental illness was undermined by that fresh material
  • Whether the sentencing proceedings miscarried, and if so, what sentence was warranted on resentencing

Decision

Admissibility of fresh evidence. The Court confirmed that sentence appeals are ordinarily determined on the materials before the sentencing court, but that appellate courts retain a discretionary power to admit "fresh" or "new" evidence where necessary to avoid a miscarriage of justice. The circumstances in which such evidence will be admitted are not exhaustively defined, but they will be rare or exceptional. The applicable principles are drawn from a long line of authority including R v Munday, R v Cartwright, Betts v The Queen and Richardson v R.

Why fresh evidence was admitted here. The Court accepted that the appellant's refusal to authorise access to his Justice Health records was a product of unique psychological factors connected to his schizophrenia rather than a simple forensic choice. Hamill J found that the medical evidence, if admitted at sentence, would have led to materially different findings of fact about the conditions the appellant faced in custody, including documented incidents of violence consistent with the victimisation of schizophrenic inmates. Those factors, taken together, brought the case within the rare or exceptional category warranting admission.

Miscarriage established. The sentencing judge's conclusion that there was no evidence the custodial sentence would weigh more heavily on the appellant could not stand in light of the fresh material. The Court found, contrary to that conclusion, that the appellant's experience of gaol was more onerous than that of inmates who did not suffer from his form of mental illness. The sentencing proceedings had therefore miscarried and a less severe sentence was warranted.

Resentencing. The Court resentenced the appellant to a total effective term of 6 years and 2 months, with a non-parole period of 4 years and 2 months. The reduction reflected the corrected factual findings about custodial conditions, not any change in the assessment of the seriousness of the offences themselves. The non-parole period had already expired by the time the orders were made, and the Court recommended the NSW State Parole Authority give priority to consideration of the appellant's release.

Orders Made

  • Time to appeal extended
  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentences imposed in the District Court on 6 March 2019 quashed and replaced:
  • Common assault: fixed term of 6 months' imprisonment commencing 14 April 2018, expiring 13 October 2018 (no non-parole period)
  • Strangling offence: non-parole period of 4 years commencing 14 June 2018 and expiring 13 June 2022, with a balance of term of 2 years commencing 14 June 2022 and expiring 13 June 2024
  • Note that the non-parole period had expired by the date of the orders
  • Recommendation that the NSW State Parole Authority give priority to consideration of the appellant's eligibility for release to parole

Key Takeaways

  • Appellate courts retain a discretionary power to admit fresh evidence on sentence appeal, but the circumstances warranting admission are rare or exceptional and are assessed on the particular facts of each case, including the nature of the evidence and its potential impact on the sentence.

  • Where a sentencing finding about the conditions an offender will experience in custody rests on an absence of evidence, and that absence is itself attributable to the offender's mental illness rather than a straightforward forensic decision, the appellate court may receive evidence that was never placed before the sentencing judge.

  • A schizophrenic offender's refusal to authorise access to medical records prior to sentence does not automatically foreclose the admission of those records on appeal, particularly where the refusal is connected to the illness itself.

  • Establishing that a custodial sentence will weigh more heavily on an offender by reason of mental illness is a relevant sentencing consideration; where that issue is not properly investigated or resolved at first instance, the proceedings may miscarry.

  • The offences themselves were described by the Court as having "chilling facts," and the reduction in sentence on resentencing was confined to correcting the error about custodial conditions; the gravity of the strangling offence remained central to the ultimate sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- R v Munday [1981] 2 NSWLR 177
- R v Cartwright (1989) 17 NSWLR 243
- R v Goodwin (1990) 51 A Crim R 328
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Richardson v R [2021] NSWCCA 304
- Hoang v R [2020] NSWCCA 324
- Cornwell v R [2015] NSWCCA 269
- Cabezuela v R [2020] NSWCCA 107
- Kaveh v R [2017] NSWCCA 52
- Agnew (a pseudonym) v R [2018] NSWCCA 128
- Middleton v Director of Public Prosecutions [2019] ACTCA 24
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- R v Diab [2005] NSWCCA 64
- R v Lanham [1970] 2 NSWLR 217
- R v Many (1990) 51 A Crim R 54
- R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
- R v McKenna (NSWCCA, 16 October 1992, unrep)
- R v Ehrenburg (NSWCCA, 14 December 1990, unrep)
- R v Munday [1981] 2 NSWLR 177