AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 15 December 2022

Col v R

[2022] NSWCCA 279

DrugsFraud & dishonestyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE UNREPRESENTED APPLICANT SUPPLY PROHIBITED DRUGS ONGOING BASIS KNOWINGLY DEAL WITH PROCEEDS OF CRIME

Citation: Col v R [2022] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judges: Davies J (principal judgment); Ierace J and R A Hulme AJ agreeing

Background

The applicant pleaded guilty in the District Court shortly before trial to five offences spanning fraud, drug supply and dealing with proceeds of crime. The offending involved using a false identity to fraudulently obtain a vehicle worth over $55,000, supplying methylamphetamine and gamma-butyrolactone (GBL) on multiple occasions, possessing a large commercial quantity of GBL (over 5.4 kilograms), and holding $10,000 in cash derived from drug supply. A heroin supply charge was also taken into account on a Form 1.

Judge Mahony SC sentenced the applicant on 5 March 2021 to an aggregate term of 8 years and 4 months' imprisonment, with a non-parole period of 6 years and 3 months, commencing 15 May 2019. The applicant had been represented by counsel at the sentencing hearing.

The applicant, appearing for himself on appeal, sought leave to appeal out of time against his sentence. He raised three grounds: a factual error about his participation in the Drug Court program, a complaint that his counsel failed to tender a letter of remorse and character references, and a complaint that the sentencing judge did not account for the effects of COVID-19 on his time in custody.

  • Whether leave to appeal out of time should be granted where no explanation for the delay was provided
  • Whether the sentencing judge's erroneous finding that the applicant had participated in the Drug Court program constituted a miscarriage of justice
  • Whether counsel's alleged failure to tender a letter of remorse and character references amounted to a miscarriage of justice
  • Whether COVID-19 custody conditions should have been taken into account in sentencing, and whether the applicant could introduce evidence of those conditions on appeal
  • Whether evidence not before the sentencing judge (described as "new" rather than "fresh") could be admitted on appeal to establish a miscarriage of justice

Decision

Leave to appeal out of time: Davies J noted that a satisfactory explanation for a late appeal is required, and that consideration of whether leave should be granted is closely connected to whether the appeal has any merit. As no explanation was offered for the delay, and as none of the grounds had merit, leave was refused.

Ground 1 (Drug Court factual error): The sentencing judge had incorrectly found that the applicant participated in the Drug Court program. This finding was relevant to rehabilitation prospects and specific deterrence. However, Davies J concluded that other material before the sentencing judge demonstrated that the error was not of "real substance." The applicant had been abusing illicit drugs since 2004, was a recidivist, and the remaining sentencing material adequately addressed those same issues. No miscarriage of justice resulted.

Ground 2 (Letter of remorse and character references): The applicant argued that his counsel failed to tender a letter of remorse and character references. The Court applied the well-established principle that a party is bound by how legal representatives conduct proceedings. The applicant reconstructed a version of the letter of remorse for the appeal, but it fell well short of the statutory requirements for remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. Moreover, the reconstructed letter went no further than what counsel had already put to the sentencing judge. The character references were not available at all on appeal. This ground was rejected.

Ground 3 (COVID-19 conditions in custody): The applicant swore an affidavit describing lockdowns and loss of family visits during the pandemic. Davies J drew a clear distinction between events occurring before sentencing and those occurring after. Evidence of post-sentence events was inadmissible. Evidence of pre-sentence events was characterised as "new" evidence (not "fresh"), and its admission required demonstration of a miscarriage of justice caused by its absence. Balanced against all other sentencing considerations, the described conditions of two or three lockdowns of two to three weeks each did not rise to that level. This ground was also rejected.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A satisfactory explanation for a late appeal is a threshold requirement, and the merits of the proposed grounds are closely tied to whether leave will be granted. Where neither explanation nor merit is present, leave will be refused.

  • Not every factual error by a sentencing judge will produce a miscarriage of justice. A miscarriage requires that the absent or incorrect information was of "real substance," meaning the judge proceeded on materially incomplete information. Where other evidence before the sentencing court covered the same ground, the error may be found to lack real substance.

  • Parties are bound by the way their legal representatives conduct proceedings at first instance. An applicant on appeal cannot generally rerun the sentencing hearing with fresh evidence simply because counsel chose not to tender certain material.

  • The Court of Criminal Appeal confirmed the distinction between "fresh" and "new" evidence in the sentencing appeal context. Evidence that was available but not tendered at the sentencing hearing is "new," not "fresh," and its admission requires proof of a miscarriage of justice arising from its absence.

  • Evidence relating to custodial conditions arising after the date of sentence is inadmissible on a sentence appeal. Pre-sentence custodial hardship evidence may be admissible only where a miscarriage of justice can be demonstrated from its omission at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases:
- Khoury v R [2011] NSWCCA 118
- Lowe v R [2013] NSWCCA 141
- McCall v R [2010] NSWCCA 174
- Momoa v R [2020] NSWCCA 328
- R v Birks (1990) 19 NSWLR 677
- R v Fordham (1997) 98 A Crim R 35
- R v Lawrence [1980] 1 NSWLR 122
- R v Sunderland (1927) 28 SR (NSW) 26
- Roff v R [2017] NSWCCA 208
- Rossall v R [2021] NSWCCA 200