18 The principle referred to in Ashton has application where the relevant condition existed at the time of the imposition of sentence but its existence or effect was unknown or not fully appreciated at that time. See Ashton (late manifestation of a pre-existing psychiatric condition) and the cases upon which it relied namely Bailey (1988) 35 A Crim R 458 (late diagnosis of AIDS Virus), R v Ehrenburg(NSWCCA, unreported, 14 December 1990), (late birth of deformed child as a result of complications of pregnancy) see also R v Mioduszewski (NSWCCA, unreported 28 May 2004).
19 In his remarks on sentence the learned sentencing Judge observed that the applicant was in good health and there was nothing untoward with his physical or mental health. The histories recorded in the reports which the applicant sought to tender were confirmatory of his Honour's remarks.
20 Counsel for the applicant accepted the evidence did not establish the existence of a psychiatric condition which pre existed the imposition of sentence. The applicant had obtained an adjournment of the appeal on 28 September 2006 to seek expert evidence on that issue. The only report subsequent to that date sought to be tendered on behalf of the applicant was a report of the psychiatrist Dr Roberts dated 22 February 2007. That report did not traverse that issue.
21 The applicant was examined by a psychiatrist on behalf of the Crown. His reports were sought to be tendered in the event the applicant's further evidence was admitted. He stated expressly that the applicant had no premorbid psychiatric illness or psychiatric disorder. He also opined that the applicant had the mental and physical capacity to serve his sentence and that his response was not unduly different to many other persons sentenced for similar offences.
22 The further evidence sought to be tendered does not establish the applicant, at the time of the imposition of sentence, was suffering from any psychiatric condition or one the effect of which was unknown or not fully appreciated at that time. The principle referred to in Ashton's case has no application.
23 This Court in Ehrenburg stressed that the principle referred to in Ashton should be confined.
24 Loveday J, with whom Gleeson CJ agreed, said:
It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstance of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this Court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177).