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Court of Criminal Appeal 21 December 2022

Wentworth v R

[2022] NSWCCA 293

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG

Citation: Wentworth v R [2022] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 21 December 2022
Judge(s): Meagher JA; Beech-Jones CJ at CL; Garling J

Background

The applicant pleaded guilty to two offences of supplying a large commercial quantity of a prohibited drug (1,4-Butanediol) under the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2). Both supplies were made to undercover police officers in September and November 2019, each involving over 100 kilograms of the substance. The standard non-parole period for each offence was 15 years.

The applicant had been living with a colostomy bag since before the offending, following bowel surgery caused by ulcerative colitis. At sentencing, the original judge took careful account of the significant hardships the applicant would face in custody due to this condition. An aggregate sentence of 8 years was imposed with a non-parole period of 4 years, a result the Court of Criminal Appeal later described as "very lenient" given the drug quantities involved.

The applicant sought leave to appeal against that sentence, relying on fresh evidence about his medical condition and the ongoing availability of stoma reversal surgery while he remained in custody. He argued that circumstances had materially changed since sentencing, such that the surgery was no longer available to him in custody.

  • Whether the further medical and factual evidence tendered on appeal qualified as "fresh" evidence capable of affecting the sentencing outcome.
  • Whether subsequent events or circumstances cast new light on circumstances that existed at the time of sentencing, such that the Court of Criminal Appeal could act on that evidence under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether the applicant's fundamental premise was established: that stoma reversal surgery was no longer possible for him to pursue while in custody.

Decision

The Court accepted that all of the further evidence was "fresh" in the technical sense, as it related to events occurring or medical opinions formed after the original sentencing date. However, freshness alone is not sufficient to ground the exercise of the Court's power under s 6(3) of the Criminal Appeal Act. The Court must also identify an error in the sentencing process or outcome, and generally subsequent events alone will not establish such error.

An exception applies where subsequent events cast new light on circumstances that did exist at the time of sentencing. The applicant sought to bring his case within a recognised category: where a person was sentenced on the expectation of receiving a particular level of medical care in custody but did not receive it. He argued that at sentencing there was an expectation he could pursue stoma reversal surgery in custody, but that this had since become impossible.

Meagher JA rejected this submission on the facts. The evidence showed that stoma reversal surgery remained available to the applicant through Justice Health and the public health system. The reason the surgery had not proceeded was not any failure by the custodial health system, but rather that the applicant's treating doctors were unwilling to recommend surgery at this time because of risks associated with his current body weight. The opportunity for surgery remained; the applicant had simply been advised not to pursue it yet.

Beech-Jones CJ at CL added that the sentencing judge had already proceeded on the basis that the surgery might not occur, expressly sentencing the applicant "irrespective of that possibility." The further evidence therefore did not change the relevant sentencing landscape. Garling J agreed with both Meagher JA and the Chief Judge.

Orders Made

  • The application for leave to appeal against sentence was dismissed.

Key Takeaways

  • A court considering fresh medical evidence on a sentencing appeal must identify an error in the original sentencing process or outcome; subsequent events alone are generally insufficient to warrant intervention under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • Fresh evidence may ground appellate review where it casts new light on circumstances that already existed at sentencing, including where an offender was sentenced on the expectation of a particular level of medical care that was not in fact provided.
  • In dismissing the application, the Court of Criminal Appeal drew a clear distinction between surgery being unavailable in custody and surgery being medically inadvisable at the present time. Only the former would have engaged the relevant exception.
  • Where a sentencing judge has already accounted for ongoing medical hardship and uncertainty about future treatment by way of special circumstances, subsequent evidence of similar ongoing difficulties does not, without more, establish a new basis for appeal.
  • No error was established in the original sentence, which had been calculated to reflect the applicant's medical circumstances and the genuine difficulties he would face managing his condition throughout his term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Hoang v R [2020] NSWCCA 324
- JM v R [2008] NSWCCA 254
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 502
- Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402
- Bailey v R (1988) 35 A Crim R 458
- Iglesias v R [2006] NSWCCA 261
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13
- R v Keir [2004] NSWCCA 106