AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 24 February 2023

Eden v R

[2023] NSWCCA 31

Assault & violenceTheft & property
REFUSAL TO ADMIT NEW EVIDENCE APPEAL DISMISSED

Citation: Eden v R [2023] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 24 February 2023
Judges: Gleeson JA, Fagan J, Dhanji J

Background

The applicant pleaded guilty in the Local Court to armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW). The offending involved luring a victim to a location under false pretences, holding a knife to the victim's throat, deliberately slicing the victim's shoulder with the blade, and taking $50 in cash. The maximum penalty for the offence is 25 years imprisonment.

The applicant was sentenced in the District Court at Wagga Wagga on 19 November 2021 to a total term of 3 years and 9 months imprisonment, with a non-parole period of 2 years. The sentencing judge applied the principles from Bugmy v The Queen (2013) 249 CLR 571, finding they were enlivened "to a very significant extent" given the applicant's deprived upbringing, and made positive findings about the applicant's rehabilitation prospects and prosocial life since the offending.

On appeal, the applicant sought to rely on a report from a clinical neuropsychologist, Dr Berry, concluding that the applicant suffers from Foetal Alcohol Spectrum Disorder (FASD). This evidence had not been before the sentencing judge. The applicant did not contend that the sentencing judge made any error; rather, he argued that the absence of the FASD evidence caused a miscarriage of justice.

  • Whether the Court of Criminal Appeal should receive new evidence (the neuropsychological report diagnosing FASD) that was not before the sentencing judge.
  • Whether the absence of that evidence caused a miscarriage of justice requiring intervention by the Court.
  • Whether an FASD diagnosis and associated impairment in executive functioning would have reduced the objective seriousness of the offending or otherwise resulted in a lesser sentence.

Decision

Dhanji J (with Gleeson JA and Fagan J agreeing) confirmed that the Court has flexibility to receive new evidence on sentence appeal where necessary to avoid a miscarriage of justice. The threshold question is whether the new evidence is of sufficient potential significance to the sentencing outcome to make admission necessary.

On the facts, the court found that the FASD diagnosis, without accompanying evidence explaining how the applicant's specific cognitive deficits actually caused or contributed to the offending conduct, was unlikely to have reduced the assessment of objective seriousness. Other factors, particularly the applicant's drug use at the time, were also at play. The label of a diagnosed condition does not automatically translate into a reduced sentence.

The court also observed that Dr Berry's report had the potential to work against the applicant. The case run at sentencing emphasised that the applicant, despite a deprived upbringing, was actively overcoming adversity through vocational training and showed real rehabilitation prospects. The FASD diagnosis, by contrast, pointed to irremediable cognitive deficits present since birth. This would have cast doubt on the rehabilitation findings and potentially elevated the risk of reoffending, which could have increased the weight given to specific deterrence.

Because the new evidence had the capacity to undermine the applicant's subjective case, and because it was not established that admission of the report would have resulted in a lesser sentence, no miscarriage of justice was made out. The application to admit the report was refused and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Affixing a diagnostic label to an offender's condition does not, by itself, require any particular outcome at sentencing. The court confirmed that a diagnosis of FASD must be connected, by evidence, to the specific offending conduct before it can meaningfully affect the assessment of objective seriousness or moral culpability.
  • Where new evidence on a sentence appeal has the capacity to undermine, rather than bolster, the case as presented to the sentencing judge, that is a significant factor weighing against admission.
  • A sentencing court can take into account that evidence of impaired executive functioning (reduced capacity to control impulses or plan behaviour) may cut both ways: it may reduce culpability, but it may also increase the weight properly given to specific deterrence.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the primary constraint on the sentencing judge's discretion in this case was the need to reflect the objective seriousness of the offence, a matter that Dr Berry's report did not address or diminish.
  • Consistency between the evidence led at sentencing and any proposed fresh evidence on appeal is a relevant consideration. Running an alternative and inconsistent case on appeal carries risk, particularly where the original case generated substantial findings in the applicant's favour.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 98
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Barnes v R [2022] NSWCCA 140
- Wentworth v R [2022] NSWCCA 293
- Anderson v R [2022] NSWCCA 187
- DS v R; DM v R [2022] NSWCCA 156
- R v Wendy Olive Lawrence [2005] NSWCCA 91
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Clarke Jeffries v R [2019] NSWCCA 56
- R v Dodd (1991) 57 A Crim R 349