Citation: D'Agostino v R [2023] NSWCCA 212
Court: Court of Criminal Appeal, New South Wales
Date: 30 August 2023
Judge(s): Beech-Jones CJ at CL, Cavanagh J (principal judgment), Weinstein J
Background
The applicant had pleaded guilty to a rolled-up charge of conspiracy to import a commercial quantity of border-controlled drugs, specifically heroin and cocaine, contrary to the Criminal Code Act 1995 (Cth). The offending spanned three separate conspiracies between 2014 and 2016, involving proposed importations of significant quantities of narcotics into Australia. The sentencing judge in the District Court described the applicant as a trusted lieutenant to his more culpable brother, and sentenced him to 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months, commencing 28 March 2018.
The applicant sought to appeal the sentence out of time, arguing it was manifestly excessive. His case did not challenge any of the original factual findings made at sentence. Instead, the appeal rested on the claim that his physical health had deteriorated significantly since sentencing, and that the burden of custody had therefore become substantially greater than the sentencing judge had anticipated.
The applicant suffered from Meniere's disease (an inner ear disorder causing vertigo, hearing loss, and related symptoms), and argued that his condition had worsened in custody and that he had not received adequate treatment. He sought resentencing with a reduced non-parole period, which was due to expire on 27 June 2024.
Legal Issues
- Whether an extension of time should be granted for leave to appeal against sentence under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW)
- Whether the sentence was manifestly excessive, on the basis that the applicant's medical condition has deteriorated significantly since sentence
- Whether expert medical evidence about Meniere's disease constituted "fresh evidence" admissible on appeal
- Whether the deterioration of a medical condition beyond what a sentencing judge anticipated is sufficient, of itself, to warrant appellate intervention
Decision
The Court granted the extension of time but refused leave to appeal. Cavanagh J, with whom Beech-Jones CJ at CL and Weinstein J agreed, held that a mere deterioration in a medical condition beyond what was anticipated at sentence does not ordinarily give rise to a successful appeal. Something more is required, such as evidence that the sentencing judge sentenced on the basis of misapprehended facts.
On the question of fresh evidence, the Court confirmed the established principle that fresh evidence must be evidence that was not available at the date of sentencing and could not have been adduced at that time, and it must also be capable of affecting the outcome. The report of an expert audiologist tendered by the applicant was excluded on this basis: it could have been obtained prior to the original sentencing hearing. Because the audiologist's report was inadmissible, the responsive report from the Crown's expert was also not admitted.
The admissible fresh evidence consisted of custodial records and lay evidence showing a deterioration in the applicant's condition since sentence. However, the Court found this was insufficient to warrant intervention. The sentencing judge had already accepted that the applicant suffered from Meniere's disease and had accounted for it. The applicant had not established that appropriate treatment for Meniere's disease could not be provided within the custodial setting, and the Court noted some overstatement in the characterisation of the inadequacies in treatment provided by Justice Health.
Leave to appeal is discretionary, and the Court concluded the circumstances did not justify granting it. The general rule remains that an appellate court acts on the facts presented at the time of sentence, and the applicant's case fell short of the threshold needed to depart from it.
Orders Made
- Extension of time granted to the applicant to apply for leave to appeal against sentence.
- Leave to appeal refused.
Key Takeaways
- A demonstrated deterioration in a medical condition since sentencing is not, of itself, sufficient to ground a successful appeal against sentence. More is required, such as evidence that the sentencing judge acted on a misapprehension of fact.
- Fresh evidence on appeal is confined to evidence that was unavailable at the time of sentencing and could not have been obtained then. Evidence that could have been gathered before the original sentencing hearing will not qualify, regardless of when it is actually commissioned.
- The Court of Criminal Appeal confirmed that it generally acts on the facts as they stood at the time of sentence, and departure from that rule requires more than a worsening of a medical condition that the sentencing court already acknowledged.
- Where a sentencing judge has expressly accepted a medical condition and taken it into account, an applicant bears the burden of establishing that adequate treatment for that condition cannot be provided in custody before appellate intervention will be considered.
- An extension of time to seek leave to appeal may be granted even where leave is ultimately refused, reflecting that the threshold for the extension is lower than the threshold for leave itself.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1) and 307.1(1)
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)
Cases:
- Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186
- Hoang v R [2020] NSWCCA 324
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Iglesias v R [2006] NSWCCA 261
- R v Munday [1981] 2 NSWLR 177