Barnes v R

Court of Criminal Appeal (NSW)|2022-04-04|Before: Gleeson JA, Hamill J, Ierace J, Health J

1974] HCA 35 Richardson v R [2021] NSWCCA 304 Scott v R [2020] NSWCCA 81 Scullion v R (NSWCCA, 15 July 1992, unrep) Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13 Toller v R [2021] NSWCCA 204 Tuncbilek v R [2020] NSWCCA 30 Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 Category: Principal judgment Parties: James Barnes Regina Representation: Counsel: D Barrow (Applicant) E Wilkins SC (Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant appealed against the sentence imposed on him on 6 March 2019 in the District Court. He received a total effective term of 6 years and 11 months' imprisonment, with a non-parole period of 4 years and 10 months, for one offence of common assault and one offence of intentionally strangling another person, being reckless as to rendering the person unconscious. For the common assault offence, he was sentenced to 9 months' imprisonment, with a non-parole period of 6 months. For the strangling offence, he was sentenced to 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 8 months. He pleaded guilty to both offences, receiving 25% discounts on each sentence, and an offence of stalking with intent to cause harm was taken into account on a Form 1. In calculating the total effective term of imprisonment, the individual sentences were accumulated by a period of two months. The primary issue on appeal was whether the sentence proceedings miscarried due to the absence of the applicant's Justice Health medical records and a psychiatric report (ground 1). The applicant submitted that these records were not discoverable at the time of sentence and, if they had been admitted, would have resulted in findings of fact which were more favourable in relation to his experience in custody. The applicant sought to tender that material on the appeal, rather than on "the usual basis" for the purposes of re-sentencing. The evidence, which was not tendered at the sentencing hearing, was the foundation of the single ground of appeal. The respondent submitted that the evidence was inadmissible and no different sentence was warranted. The Court Held (per Hamill J, Gleeson JA and Ierace J agreeing), allowing the appeal and re-sentencing the applicant: As to the admission of fresh evidence (1) Sentence appeals are generally to be decided on the materials before the sentencing court. However, appellate courts retain a discretionary power to receive "fresh" or "new" evidence in order to avoid a miscarriage of justice. The circumstances in which such evidence will be admitted are not exhaustively defined, although those circumstances will be rare or exceptional: [24]-[27] (Hamill J); [1] (Gleeson JA); [80] (Ierace J). R v Munday [1981] 2 NSWLR 177; R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328; Scullion v R (NSWCCA, 15 July 1992, unrep); Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; Richardson v R [2021] NSWCCA 304 applied. (2) The sentencing Judge's conclusion that there was no evidence that a custodial sentence would weigh more heavily upon the applicant could not have been reached if the medical evidence had been admitted. The medical materials are therefore admitted as "fresh" evidence on appeal, having regard to the unique psychological factors, and unusual circumstances, leading to the applicant's decision to refuse his lawyer's access to the material prior to sentence: [34]-[38], [43]-[50], [54]-[69] (Hamill J); [1] (Gleeson JA); [80] (Ierace J). As to whether the Court should intervene (3) Contrary to the findings of the sentencing Judge, the applicant's experience of gaol is more onerous than that of inmates who do not suffer from mental illnesses of the kind suffered by the applicant. The sentence proceedings miscarried and a less severe sentence is warranted: [70]-[73] (Hamill J); [1] (Gleeson JA); [80] (Ierace J). As to re-sentencing (4) The respondent is resentenced to a total effective term of 6 years and 2 months' imprisonment, with a non-parole period of 4 years and 2 months: [74]-[78] (Hamill J); [1] (Gleeson JA); [80] (Ierace J). (i) For the common assault offence, the respondent is to serve a fixed term of 6 months' imprisonment, with no non-parole period. (ii) For the strangling offence, the respondent is to serve a term of 6 years' imprisonment, with a non-parole period of 4 years upon a finding of special circumstances.

Judgment

GLEESON JA: I agree with Hamill J.
HAMILL J: James Barnes seeks leave to appeal against a sentence imposed by Judge Herbert in the District Court sitting in Parramatta on 6 March 2019. He requires an extension of time which is not opposed by the respondent.
The applicant entered an early plea of guilty to an offence of intentionally strangling another person, being reckless as to rendering the person unconscious, contrary to s 37(1) of the Crimes Act 1900 (NSW) and a related offence of common assault (s 61 of the Crimes Act). An offence of stalking with intent to cause harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), was taken into account on a Form 1.
Judge Herbert allowed a 25% reduction for the guilty plea and found special circumstances based on the applicant's need for an extended period of supervision in the community especially for his established mental health conditions. The sentence was ordered to commence on the day of the applicant's arrest, that is 14 April 2018. Her Honour imposed the following sentences: 1. For the common assault offence - 9 months' imprisonment with a non-parole period of 6 months commencing on 14 April 2018; and 2. For the strangling offence - 6 years and 9 months' imprisonment with a non-parole period of 4 years and 8 months commencing on 14 June 2018.
It will be seen that the sentences were accumulated by a period of two months, resulting in a total effective sentence of 6 years and 11 months (expiring 13 March 2025) with a total effective non-parole period of 4 years and 10 months. The applicant is eligible for release to parole on 13 February 2023.
The application for leave to appeal is based on evidence that was not presented to the sentencing Judge and which the applicant submits would have resulted in a different and more favourable finding of fact on an important issue relevant to the exercise of the sentencing discretion. The respondent submitted the evidence is not admissible on appeal and, further, that no different sentence was warranted. The case raises the difficult question of when evidence not tendered on sentence might be admissible on a proposed appeal against sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW). While the High Court has provided relatively recent guidance on the subject, the issue remains problematic and must be determined based on the particular facts of the case, the nature of the evidence and its potential impact on the sentence.
It is necessary to canvass many authorities to demonstrate why I have concluded that the evidence is admissible in the peculiar circumstances of Mr Barnes' case. I would extend the time in which to appeal, grant leave to appeal and allow the appeal. I would impose a different, somewhat less severe, sentence. These are my reasons for those decisions.

The facts of the offences

The agreed facts on sentence disclosed a pre-meditated and violent attack on a young woman who was a stranger to the applicant. The victim finished work at around 8:00pm and walked through the grounds of the University of Sydney to a bus stop on Parramatta Road. The applicant saw her in the university and began following her. He boarded the same bus and alighted when she did, following her on foot to her apartment block in Ashfield. This occurred over a period exceeding half an hour during which the applicant stalked the victim through public spaces and to the threshold of her home. There was ample opportunity for the applicant to abandon his pursuit of the victim. When the victim arrived at her apartment building, the applicant surprised her from behind and hooked a bike chain around her neck, pulling her backwards onto the ground. The victim struggled and tried to fight the applicant off. She lost consciousness for a brief period.
It was fortuitous that some people nearby saw what was happening and intervened. The first witness was sitting in her car parked further along the street. She saw the victim walk past with the applicant trailing behind. She called out to the applicant after she heard a scream. The applicant said he had not done anything as he walked back in her direction. That witness's ex-husband was also present and, after seeing the chain in the applicant's hand, confronted the applicant and attempted to take his bag. The applicant punched the second witness in his face and ran from the scene. The punch to the witness constituted the common assault offence.

Impact and injuries suffered by the victim

The potentially devastating impacts of an attack of this nature need no elaboration. The victim became aware the applicant was following her when she departed the bus and was anxious, hoping her stalker would change course. She provided a victim impact statement in which she said that being involved in the police investigation was an uncomfortable experience. In the aftermath of the attack, she had trouble sleeping for more than a week and avoided going out at night for months. The incident impacted on her work and social life. She remains nervous if she hears somebody walking behind her. She has lost trust in people and changes her plans to avoid situations she perceives may be dangerous.
She suffered physical injuries including ligature marks around the neck, bruising and abrasions to her tongue and face, petechial haemorrhages to the structures of the neck, and sclera haemorrhages to her eyes. These injuries are consistent with strangulation leading to a loss of consciousness.

Findings on sentence

Judge Herbert found the strangulation offence fell within the high range of objective seriousness bearing in mind the planning involved and the use of a bike chain which the applicant brought with him. Judge Herbert acknowledged the significant harm caused to the victim, although she found it did not exceed the type of harm that would ordinarily result from such an offence.
In relation to evidence tendered concerning the applicant's mental health, the sentencing Judge made a number of relevant findings. Her Honour was not satisfied that the applicant's moral culpability was diminished to any significant extent. This was because of the "alternate possibility" posited by the psychiatrist Dr Furst that the causal link between the condition and the offending was disinhibition and impaired judgment, layered upon pre-existing "deviant interest[s] of a sadistic nature". [1] On the other hand, her Honour found the applicant was not an appropriate vehicle for general deterrence because of his mental illness. However, personal deterrence and community protection were held to remain factors of considerable weight. Of most significance in terms of the issues ventilated on appeal, Judge Herbert found that the gaol sentence would not weigh more heavily upon the applicant as a result of his mental health issues.
Judge Herbert found the applicant had some prospects of rehabilitation in light of his lack of previous convictions but qualified this finding by noting that Mr Barnes' prospects would depend on his willingness to comply with treatment for his mental health issues.

Application to adduce additional evidence on appeal

The applicant sought to adduce evidence that was not tendered at the sentencing hearing. This was in support of a single ground of appeal in the following terms: "1. The sentence proceedings miscarried because of the absence of the applicant's Justice Health medical records."
The respondent objected to the tender of the material. It was admitted provisionally, subject to the submissions of the parties, with the decision concerning admissibility to be determined as part of the resolution of the appeal.

Summary of the evidence sought to be adduced

The evidence falls into three categories. First, there is evidence concerning incidents of violence to which the applicant was allegedly subjected while in custody on remand awaiting sentence and thereafter. Secondly, evidence of the opinions of Dr Furst who provided evidence on sentence but was not aware of the material tending to establish that the applicant had been assaulted while in custody. Thirdly, there was material explaining why the evidence of the assaults in custody prior to sentence was not tendered in the District Court.
The evidence was adduced in the following affidavits: 1. Natalija Cavar (the solicitor who appeared at sentence) affirmed 22 October 2021 and 26 October 2021. 2. John Pearson (a solicitor who prepared the appeal) affirmed 2 November 2021. 3. Danka Durovic (a solicitor who took over from Mr Pearson) affirmed 14 March 2022. 4. James Barnes (the applicant) affirmed 27 January 2022.
Much of the important material was in the annexures to these affidavits, including various Justice Health records and the report of Dr Furst dated 9 September 2021.
The respondent read an affidavit of Adam Wilczek, the solicitor with carriage of the mater for the Director of Public Prosecutions, sworn 25 March 2022 with annexures consisting of Corrective Services documents. These were relied on by the respondent to suggest that the applicant may have been the aggressor in the incidents upon which reliance is now placed.
Some of the important items of evidence included: 1. A selection of Justice Health records, which disclosed five occasions prior to sentence where the applicant was treated for injuries sustained in violent incidents with other prisoners: 1. "22/04/18: …Pt t/f to Westmead hospital with DCS transport at 1630 hours for r/v facial/head injury due to? alleged assault." 2. An ED discharge summary from the following day notes: 3. "Limited history. Stated to triage fell in shower. Correctional officers state attacked by ~20 individuals seen on video…unsure if weapons used. Repeated blows to head & face, arms and abdomen". 4. "01/06/18: n/r 1305hrs. Incident in unit. Assessed post 'assault' - state woke up w/ swollen R[ight] eye. Bruised. Nil other obvious injuries." 5. "23/07/18: Pt seen following post assault…Pt states was hit 3-4 times - acknowledged by CSO who witnessed incident. � eye swollen, graze on top of forehead - not actively bleeding, icepack to L[eft] eye brow [and] cheek. Facial swelling - for obs cell overnight for medical obs". 6. "01/09/18: Pt seen following assault. Refusing to disclose information beyond nil LOC [loss of consciousness]." 7. "05/10/18: Pt presented following assault - multiple facial injuries. Non-life threatening. Ambulance called for due to head injury." 1. A report of Dr Furst dated 9 September 2021, which included the following opinion: "He was assaulted on multiple occasions by other inmates during his first 12 months in custody, consistent with the victimization often seen amongst people with schizophrenia and/or cognitive impairment in custody". [2]
Dr Furst was cross-examined on the hearing of the appeal by counsel for the respondent. While he made some concessions, such as agreeing to the self-evident proposition that he did not know how the various incidents started, he maintained his opinions. For example, he was asked about the opinion reproduced in the last paragraph: "Q. Is it about any of the assaults that you've described or is it just a general comment about the way, in your view, people with mental illness are treated in custody? A. No, it's a particular opinion based on a review of the extra evidence I was provided by the counsel or his legal practitioner as distinct from the applicant when there's documented five, I think, at least instances which are listed in this first half of the page on page 4 where he was assaulted, and that's what I'm referring to as victimisation because he's become the victim of a crime which is assault, and people with schizophrenia are more vulnerable to being victimised by crimes such as assault in custody."
Ms Cavar's affidavit established that the applicant gave her limited authority to obtain his mental health records. In particular, she said that her client was "not willing to provide an authority to obtain his Justice Health file, although [she] asked him for permission on a number of occasions." [3] As to his refusal to provide such an authority, Mr Barnes' affidavit asserted: "The reason I would not let them was because I would be sent to a forensic hospital. I did not want them to look at my psychiatric history at all due to my persecutory delusions, but I was especially concerned to prevent my lawyers having any communication with the gaol authorities about my mental health."

Principles relating to the admission on appeal of fresh or new evidence

The long standing practice of intermediate appellate courts around Australia is that sentence appeals are generally to be determined based on the material that was before the sentencing court. [4] Once error has been demonstrated, evidence of an offender's "progress toward rehabilitation in the period since the sentencing hearing", may be admitted. [5] The rationale for the general rule was explained in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]: "As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice."
The final sentence of that passage makes clear that the general rule is not absolute. [6] A review of cases over decades discloses many examples where evidence has been admitted on appeal to prevent a miscarriage of justice. One example relates to evidence of medical conditions that were present at the time of sentence but whose true impact was not appreciated at the time. [7] Another example is where the evidence was not adduced at first instance due to incompetent legal representation. [8] On occasion, evidence of assistance to authorities has been admitted on appeal. [9] This Court has recognised that the circumstances that may give rise to an exception to the general rule are not exhaustively defined. [10] In Richardson v R [2021] NSWCCA 304, Dhanji J said at [158]: "…the circumstances in which fresh or new evidence will be admitted other than on the usual basis are not necessarily closed."
The power to receive the material is a discretionary one and the general rule against admissibility should not be exercised so rigidly as itself to "be the cause of injustice". [11] It has been held that a degree of flexibility is preferrable where the statute is silent and the Court's jurisdiction is concerned with the prevention of a miscarriage of justice. [12]
While the authorities throw up many cases where evidence has been admitted on appeal, the general rule prevails in most cases. Additional evidence is only received where proper grounds have been established. [13] The Court has been "at pains" [14] for decades to ensure that the rule against admission of this evidence will only yield in "rare and exceptional cases" [15] or, put another way, for "substantial reasons [where there is] a grave risk of injustice." [16]
The case law draws a distinction between "fresh" and "new" evidence. Evidence will constitute "fresh evidence" if it was not available to a party, "could not have been discovered with the exercise of reasonable diligence" at the time of sentence, [17] and its admission will depend on whether it had the "capacity to affect the outcome of proceedings at first instance." [18] "New" evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence. [19] Fresh evidence is received more readily than new evidence.
However, the distinction was not emphasised in Betts v The Queen, [20] and it is a dichotomy of greater significance in appeals against conviction. [21] This Court's prevailing approach to the reception of both kinds of evidence on sentence appeals [22] is encapsulated in the following passage from Betts v The Queen at [10]: "Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice." (footnotes omitted)
One of the decisions cited by the High Court was the decision of R v Goodwin (1990) 51 A Crim R 328. In that case, Hunt J (as his Honour was at the time) set out the following relevant considerations: "(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings."
Another case to which reference is frequently made is R v Smith (1987) 44 SASR 587 where King CJ, said at 588: "While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence."
The cases draw a distinction between evidence of facts that have arisen entirely after sentence, which "cannot be taken into account, no matter how compelling they may be" [23] and are properly the province of the executive, [24] and evidence of factual circumstances which existed at the time of sentence or post-sentence evidence which throws light on facts that existed but were not fully appreciated.
In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, Simpson J (as her Honour then was) referred to the "subset of evidentiary propositions" which have emerged. Her Honour articulated the criterion for admissibility slightly differently saying it was when "the interests of justice have so dictated." [25] Her Honour recognised, distinct from the identification of any error, the basis for the discretion is to correct a misunderstanding. [26] Her Honour addressed the task of the Court in respect of this kind of evidence: "That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)."
The situation in the applicant's case can be contrasted with the case of Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133, where the sentencing Judge "said a number of times that the applicant's incarceration would be more difficult than it otherwise might be." [27] The Court declined to admit fresh evidence of dementia because the difficulties of incarceration "already formed a major component of the assessment of sentence". [28] Similarly, in Cabezuela v R [2020] NSWCCA 107, fresh evidence was not admitted because the potential hardship in custody was recognised at sentence, albeit not with the benefit of the additional evidence. [29] In Kaveh v R [2017] NSWCCA 52, Latham J said at [33]: "However the additional evidence is characterised, the salient question that governs the exercise of the discretion to admit the material is whether it may have had a real bearing on the exercise of the sentencing discretion: R v Goodwin (1990) 51 A Crim R 328; R v Fordham (1997) 98 A Crim R 359. There is nothing in the report that supports the contention that the applicant is experiencing hardship beyond that anticipated by the sentencing judge. The significance of the applicant's symptoms [was] fully appreciated at the time that sentence was imposed. Consistent with her Honour's view, the report suggests that the applicant is being appropriately treated for the same afflictions that were identified during the sentencing proceedings. I can discern no basis for concluding that the contents of Mr Jolan's report may have persuaded her Honour to exercise her sentencing discretion more favourably to the applicant."
In the applicant's case, the sentencing Judge made a specific finding to the contrary, observing: "There is no evidence before me that the offender will find that the custodial sentence would weigh more heavily upon him."
Judge Herbert could not have reached that conclusion (that there was "no evidence") had the Justice Health records been available along with Dr Furst's opinion that the evidence of what had happened to the applicant was consistent with the victimisation of people with mental health issues in gaol.
The situation is factually similar to Middleton v Director of Public Prosecutions [2019] ACTCA 24. In that case, the sentencing Judge made no finding of reduced moral culpability or that the applicant "would experience more arduous conditions of imprisonment". [30] On appeal, the appellant sought to tender an expert report establishing that the applicant had a brain disease which disinhibited him, impaired his judgment and stated "that it is more likely than not" that the period in custody would be more onerous. [31] The Prosecutor objected to the evidence being tendered on appeal and argued that the preconditions for the admission of fresh evidence were not met. It was submitted the evidence was unlikely to impact on the finding of moral culpability and there was "no chance" it would upset other findings relevant to sentence, such as the requirement for deterrence. [32] Loukas-Karlsson J, sitting as a single Judge to determine whether leave to appeal should be granted, held that the additional evidence was relevant to a variety of issues, including the assessment of moral culpability, insight into the offending, the applicability of general and specific deterrence, the additional hardship incarceration may occasion and the impact of the condition on life expectancy. [33] The appeal was ultimately allowed by the Full Court (Burns, Mossop and Bromwich JJ) and the matter was remitted to the sentencing Judge: Middleton v The Queen [2020] ACTCA 6.
A similar outcome was reached in Rae v R [2019] NSWCCA 284, a case raising the competence of counsel, where no evidence was tendered on sentence regarding the offender's mental health issues. The "legal representatives were not in a position to make, and did not make, the submission now made in this Court about moderation of general deterrence or the extent to which a custodial term might weigh more heavily upon him than an offender without similar mental health issues." [34] As a result, the sentencing Judge did not address the offender's mental health or make findings relevant to sentence. Harrison J found the evidence was admissible on appeal saying: "41 The sentencing judge did not have before him evidence that had the significant potential reliably to inform his sentencing discretion. In so saying I acknowledge that Mr Rae has not yet obtained, and this Court has not seen, any additional medical opinion upon which he hopes to rely. It is sufficient to observe that Mr Rae's history of illness suggests that a current review of his medical condition contemporaneously available with a sentencing decision would be a matter of potential significance to a sentencing tribunal. 42 In this last respect the Crown contends that even if his Honour had had the material explaining Mr Rae's medical history, or possibly even an up-to-date report from an expert detailing his current psychiatric health, there can be no certainty that a different result would follow and that the sentence imposed by his Honour was in any event quite lenient in the circumstances. Moreover, as Mr Rae accepts, the medical material already available does not provide or suggest that his mental health offers an explanation for his offending. In my view, these are matters that can be raised when Mr Rae is resentenced. They are not matters that derogate from the fact that Mr Rae has been the subject of a miscarriage of justice in the way I have described."

Submissions of the parties

The parties focussed on the facts of this case and generally relied on the decision of the High Court in Betts v The Queen and a few of the decisions referred to in the preceding paragraphs.
The applicant submitted that the additional evidence is "fresh" because it was not available with due diligence, due to the circumstances of the applicant's untreated mental illness. [35] Mr Barrow submitted that the applicant's refusal to provide consent for his lawyers to obtain the Justice Health records was the result of his psychiatric illness and his decision making was compromised because his mental health remained unreviewed and unmedicated for the almost 12 months he was in custody prior to sentence. [36] Reliance was placed on the following observation in Dr Furst's report dated 15 July 2018: "His reluctance to sign a consent form to give me permission to obtain medical records from his past admission is highly unusual, even for a patient suffering from a psychotic illness, suggesting that his lack of insight into his schizoaffective/schizophrenic illness is profound and/or [he] is in complete denial about suffering from such an illness."
The respondent submitted that the material was not fresh evidence because it was either intentionally withheld by the applicant as a forensic choice and/or was discoverable by subpoena by the applicant's lawyers.
As to the second of those submissions, to issue a subpoena would have been contrary to the applicant's express instructions and raises ethical issues and privacy considerations. Mr Barrow submitted: " …one of the submissions that the Crown makes in the written submissions is that the material wasn't sought because of some sort of forensic judgment on the part of his legal representatives It's said it was an understandable tactical approach. That's not what Ms Cavar says in her unchallenged affidavit, and at 53 of the Crown submissions it's said that well, the Department of Corrective Services' records could have been accessed over his wishes. Well, Justice Health is not a part of Corrective Services and the release of those records it was governed by the Health Records and Privacy Act 2002, and it's clear that the applicant repeatedly refused to agree to their release, and it was his refusal to allow permission for it to occur that meant that they were not available. If there had been an attempt to subpoena them, a question of whether or not it might have amounted to professional misconduct but also it would have been a situation where he would most likely have withdrawn his instructions. It would have been destructive of any professional relationship that they had together. So in my submission, these records they weren't available to his legal representatives exercising due diligence, and alternatively even if they were, Betts v The Queen at para 2 indicates that they would be available to the Court in any event to avoid a miscarriage of justice, the miscarriage of justice being that the judge came to a conclusion on the material as to a relevant matter on sentence erroneously because she wasn't appraised of the real situation." [37]

Conclusion: if leave is otherwise granted, the evidence is admissible on the appeal

Leaving aside any distinction between fresh and new evidence, whether the evidence was discoverable by the applicant's lawyers impacts on whether there is any unfairness in refusing leave which may itself produce a miscarriage. [38] It is necessary to consider "the circumstances of, and any explanation for, the non-production of the evidence" and if it was "a deliberate decision on the part either of the applicant, or his or her legal representatives" or "ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives". [39] Another question is whether the evidence "may have had a real bearing on the exercise of the sentencing discretion". [40]
I would classify the Justice Health records, and the third report of Dr Furst, as fresh evidence. The discretion to admit the evidence should be exercised favourably to the applicant, having regard to the "unique psychological factors" which led to the decision to refuse access to the health records prior to sentencing. [41] The circumstances are exceptional. [42] To adopt Dr Furst's language, the applicant's refusal to allow access to the Justice Health records was highly unusual, even allowing for the applicant's mental illness. There was no deliberate or forensic decision made not to review and use the Justice Health records. There is nothing to suggest the applicant appreciated the potential significance of the incidents in custody. Evidence of a similar nature has been admitted in previous cases. [43]
I reject the respondent's submission that the information could have been obtained by issuing a subpoena for the records contrary to the applicant's instructions or that the applicant made an informed forensic choice not to rely on the evidence of the previous assaults. [44] I do not accept that the Corrective Services records (tendered by the respondent on the appeal) undermine the material relied on by the applicant or lead to a conclusion that the evidence would not have impacted on the sentencing outcome. This is an issue to which it will be necessary to return.
I am satisfied that the evidence admitted provisionally has the capacity to affect the outcome of the sentence proceedings and establish that the relevant finding made by the sentencing Judge was, with the benefit of evidence her Honour did not have, incorrect.
For those reasons, I would admit the evidence relied on by the applicant on the hearing of the appeal.
Having done so, I would also admit the evidence relied on by the respondent, that is the affidavit annexing the applicant's custodial history and other Corrective Services disciplinary records.

Miscarriage of justice, the ground of appeal and whether the Court should intervene.

I have set out the terms of the ground of appeal at [15].
The fact that the evidence is admitted does not mean the Court will intervene to allow the appeal and reduce the applicant's sentence. While the sentencing proceedings certainly "miscarried" in the sense that the Judge was denied relevant evidence and came to a conclusion that was adverse to the applicant as a result, the question remains whether the Court is satisfied that a different, less severe, sentence is warranted and should have been passed. [45] This determination is to be made in light of the whole of the evidence tendered at first instance and on the appeal.
I have set out very briefly the agreed facts of the offences, including the injuries suffered by the victim, at [8]-[11]. The strangling offence was extremely serious, a matter recognised by Judge Herbert who found the offence to be at the high end of objective seriousness. The offence carried a maximum penalty of 10 years' imprisonment. The stalking offence, which encompassed the fact that the applicant followed the victim over an extended period whilst armed with the bike chain, made the offending, considered as a whole, quite chilling.
Matters calling for mitigation of the sentence included the applicant's early plea and his lack of previous criminal convictions.
I agree with and adopt Judge Herbert's findings relating to, and approach to, the applicant's prospects of rehabilitation and his need for an extended period of supervision on parole. I also agree with her Honour that there should be some accumulation of the sentences, while accepting that the offences were part of a single episode of criminality so that the sentences should be largely concurrent. Judge Herbert's decision to commence the sentence for the strangling offence two months later than the common assault offence is a sensible resolution and gives proper account to the principle of totality while recognising that there was a second victim who was assaulted when he came to the aid of the first.
The real issue concerns the impact of the new evidence on the approach her Honour took to the applicant's psychiatric condition. This must be considered in the context of the two reports tendered on sentence.
Dr Furst's report dated 15 July 2018 followed an interview with the applicant in custody on 6 June 2018. This was primarily concerned with whether the applicant was fit to plead. In terms of mental health history, Dr Furst considered the limited material available from the Mental Health Review Tribunal which indicated the applicant was "floridly psychotic pre-admission" to Blacktown and/or Cumberland Hospital in 2016. He was in hospital for 10-12 weeks and exhibited symptoms such as randomized violence, "black outs", suicidal ideation, and mood disturbances consistent with a schizoaffective disorder. [46] Dr Furst diagnosed the applicant with schizoaffective disorder or schizophrenia. Dr Furst considered the applicant fit to be tried. However, due to the inadequate history and the absence of various records, the doctor was unable to form an opinion on the availability of the mental illness defence.
The second report followed an assessment of the applicant in gaol, after he pleaded guilty, on the 17 January 2019. Based on this examination and a review of medical records concerning the 2016 admission and other community health notes, Dr Furst confirmed the diagnosis of schizophrenia. [47] He provided an opinion that there was a causal connection between the diagnosis and the offending. According to the report, this was so whether the untreated schizophrenic illness produced delusions which resulted in violent ideation, or whether the applicant harboured sadomasochistic fantasies and the illness impaired his judgment and disinhibited him. [48] Dr Furst could not provide a specific opinion on the applicant's prospects of rehabilitation in "the absence of active treatment of his psychotic illness over the last 18-months". [49]
Moving to the material available to this Court, the Justice Health records provide cogent evidence that the applicant was subject to violent assaults and, as Dr Furst put it, was victimised in custody. I do not accept that the disciplinary records tendered by the respondent undermine this evidence in any material way or that they demonstrate the applicant was the author of his own misfortune in the sense that he was the true aggressor.
The incident on 22 April 2018, evidenced in the progress/clinical notes and associated discharge summary, is the starkest example although it was not an isolated incident. The applicant suffered multiple facial and head injuries. He reported he "fell in the shower" but Correctives Services officers said he was "attacked by [about] 20 individuals" and that this was "seen on video". He was subject to "repeated blows to head & face, arms and abdomen" and suffered "significant bilateral periorbital swelling, bruising of the left cheek" as well as "multiple bruises over bilateral arms". Another record described a "large haematoma over left [cheek], multiple bruising under both eyes, tender C7, T1". Under the heading "CT brain" the notes described "subcutaneous soft tissue swelling and haematoma in the left front temporal parietal region, bilateral periorbital and maxillary region."
The Corrective Services records relied on by the respondent made no reference to the assault on 22 April 2018.
On 1 June 2018, the applicant was seen by a nurse and "assessed post assault". He was assessed with "a swollen R[ight] eye. Bruised." The Corrective Services records do not refer to this incident.
A clinical note made by a nurse on 23 July 2018 related to a third incident of violence: "Pt seen following post assault. … Pt was hit 3-4 times acknowledged by [Corrective Service Officer] who witnessed incident. L[eft] eye swollen, graze on top of forehead … facial swelling"
The Corrective Services records show that the other inmate was locked in his cell for a disciplinary infraction recorded as "fight or engage in physical combat".
On 1 September 2018 a clinical note records that "Pt seen following assault" but that he refused to disclose information apart from the fact that he did not lose consciousness. The Corrective Services records showed that the applicant was subject to a misconduct report for "fight or engage in physical combat" but also that "James [the applicant] came to my attention as he has a noticeably red and swollen face." Another officer said he had "a large bump on his head and red markings all over his face." The other inmate also had "red marks on his face". Neither inmate wished to take the matter further.
On 5 October 2018 the applicant was treated "following assault - multiple facial injuries". An ambulance was called due to the existence of a head injury. The Corrective Services records do not deal with this this assault.
There are further incidents of violence and injury recorded in the Justice Health records after the applicant was sentenced. Those incidents are relevant to re-sentence if the Court comes to exercise the discretion afresh, but they also informed the opinions of Dr Furst.
Dr Furst summarised the material in his report dated 9 September 2021, which was prepared in anticipation of the possible appeal. He formed the view that the applicant was victimised and said this was "consistent with the victimisation often seen amongst people with schizophrenia and/or cognitive impairment in custody." Dr Furst described the applicant's mental state and fear of gaol, relating it to the evidence of what happened during the 2016 admission to Cumberland Hospital: "He also described 'bouts of psychosis', stating, 'Every few days I think strange things. Magical thinking. My people perception changes…people around me want to harm me. I fear jail.' He said he felt he was 'in danger' every time he meets a new person, suggestive of ongoing paranoid thinking."
As I have said, Dr Furst was cross-examined on the hearing of the appeal. The cross-examination, and the tender of the applicant's Corrective Services records, was calculated (i) to prove the applicant was the aggressor in these altercations and (ii) to undermine Dr Furst's opinions. It achieved neither of those objectives. I set out one part of the cross-examination at [22] above. The context of that extract and another part of the respondent's cross-examination of Dr Furst included: "Q. When you refer to assault, you're saying someone has hit him. That's what you mean essentially and no more or no less. Is that right? A. That's a commonly accepted definition in law in this State, yes. Q. You went on in your report on page 6 to say that, '[t]hese assaults on multiple occasions were consistent with the victimisation often seen among people with schizophrenia and/or cognitive impairment in custody'. Are you now saying that your view of the assault really didn't go that far; you weren't characterising it as him being victimised, simply him being hit and you didn't know the details of why or how those events occurred? A. I think we're talking at cross purposes here. You've asked me about a particular incident in April 2018. I've answered your questions faithfully about that incident. My opinion about him being victimised is a separate opinion; it's not about that incident. Q. Is it about any of the assaults that you've described or is it just a general comment about the way, in your view, people with mental illness are treated in custody? A. No, it's a particular opinion based on a review of the extra evidence I was provided by the counsel or his legal practitioner as distinct from the applicant when there's documented five, I think, at least instances which are listed in this first half of the page on page 4 where he was assaulted, and that's what I'm referring to as victimisation because he's become the victim of a crime which is assault, and people with schizophrenia are more vulnerable to being victimised by crimes such as assault in custody." [50] … "Q. Would you agree that at least in relation to the ones where he has been formally dealt with for fighting, that you could not characterise that as victimisation in the way that you have in your report? A. No, I don't. I don't - I don't accept that suggestion. IERACE J Q. Doctor, could you elaborate on that, why don't you accept it? A. Well, your Honour, like basically there's evidence of the applicant being assaulted on multiple occasions, I think seven - six or seven at least - and the fact that he suffered injuries means that he was technically the victim of an assault by someone. Whether he caused that or not is not really the main issue, as I see it, especially from a mental health point of view. The fact that someone is getting into fights in a custodial centre is a risk factor for that person being seriously injured and often is a sign of poorly controlled mental illness, whether it's mania or psychosis. So the fact that he has been suffering injuries and on one occasion had a large group of people who apparently assaulted him is consistent with being victimised." [51]
In re-examination, Dr Furst confirmed and elaborated on these opinions: "Q. Is it your evidence that irrespective of the origins of these various incidents, the likely genesis of these incidents of violence can be linked to his unmedicated mental illness whether he was the aggressor or the victim? A. Yes, I believe that's the most likely scenario because of the - I guess I've gone through the reasons but the frequency of the assaults and him being either targeted or involved somehow would suggest that he was interpreting things in a paranoid manner or was perhaps acting differently or strangely. I don't know exactly but I think either way, it would likely be part of his untreated schizophrenic illness. Also, sorry, it could also be even without feeling paranoid when psychotic, he is prone to aggression as he was in Cumberland Hospital back in 2016." [52]
I accept Dr Furst's opinion that the origin or cause of each incident is not critical; it is the prevalence of acts of violence committed towards or involving the applicant. There is nothing to contradict, and no reason to doubt, Dr Furst's opinion that such incidents are typical of the treatment of schizophrenic inmates.
The inevitable conclusion is that the applicant's experience of gaol is more onerous, and harsher, than that of the average inmate or, put slightly differently, to that of inmates who do not suffer from a mental illness of the kind suffered by Mr Barnes.
This conclusion, which is contrary to the finding made by the sentencing Judge, along with all other evidence relevant to sentence, leads me to conclude that a less severe sentence is warranted and should have been passed. In reaching this conclusion, I have paid close regard to the seriousness of the offences, the maximum penalties and the need to protect the community.
Despite the somewhat revised opinion expressed by Dr Furst on the applicant's moral culpability, I would not interfere with Judge Herbert's conclusion that there is not a "significant reduction" in the moral culpability of the applicant. While I accept that the applicant's untreated mental health problems played some role in the offending, I also accept the possibility that his sadistic sexual fantasies played a role. As Judge Herbert held, this offence was planned to some degree at least.
I would uphold ground 1.

Re-sentencing

I would impose a fixed term sentence of 6 months for the common assault. This is based on a starting point of 8 months reduced by 25% for the early guilty plea. I decline to set a non-parole period because (i) the sentence is largely concurrent with the sentence to be imposed for the choking offence and (ii) the sentence has long ago expired. [53]
I would adopt the approach to accumulation taken by Judge Herbert. That is, I would commence the sentence for the strangling offence two months after the commencement of the sentence for the common assault.
As to the strangling offence - noting its objective seriousness, the maximum penalty of 10 years, and taking into account the stalking offence which increases the weight to be afforded to specific deterrence - I would commence with an undiscounted starting point of 8 years. Allowing for a 25% discount for the early plea of guilty, the total sentence will be one of 6 years. Upon a finding of special circumstances, made for the same reasons stated by Judge Herbert, I would impose a non-parole period of 4 years.
The total effective sentence is one of 6 years and 2 months with a non-parole period of 4 years and 2 months. The sentence should be backdated to the day the applicant was arrested, that is 14 April 2018.
The practical upshot of this is that the applicant would have been eligible for release on parole on 13 June 2022. Exactly when he is released, and the conditions upon which he is released, will turn on decisions of the NSW State Parole Authority. It is unfortunate, to say the least, that there was a delay of more than three years between the date sentence was imposed (6 March 2019) and the hearing of the appeal (4 April 2022).

Orders

For those reasons, I would make the following orders: 1. To the extent necessary, extend time in which to appeal. 2. Application for leave to appeal granted. 3. Appeal against sentence allowed. 4. Quash the sentences imposed in the District Court on 6 March 2019 and in lieu thereof: 5. (i) for the offence of common assault, the applicant is sentenced to a fixed term of imprisonment of 6 months commencing 14 April 2018 and expiring 13 October 2018. 6. (ii) for the offence of strangling, the applicant is sentenced to a non-parole period of 4 years commencing 14 June 2018 and expiring 13 June 2022 with a balance of term of 2 years commencing 14 June 2022 and expiring 13 June 2024. 7. The applicant became eligible for release to parole at the expiration of his non-parole period on 13 June 2022, noting that the non-parole period has expired. 8. Recommend that the NSW State Parole Authority give priority to consideration of the applicant's eligibility for release to parole.
IERACE J: I also agree with Hamill J.

Endnotes

Remarks on Sentence, 6 March 2019, p 18.
Report, Dr Furst, 9 September 2021, p 6.
Affidavit, Natalija Cavar, 22 October 2021 at par [5].
R v Munday [1981] 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328 at 330.
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11].
Scullion v R (NSWCCA, 15 July 1992, unrep) p 2 (Clarke JA).
See, for example, R v Ehrenburg (NSWCCA, 14 December 1990, unrep); R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 at [81]; Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [66] and Cornwell v R [2015] NSWCCA 269 at [39].
Toller v R [2021] NSWCCA 204 at [22].
R v Many (1990) 51 A Crim R 54.
Toller v R [2021] NSWCCA 204 at [22].
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [113].
See, for example, Agnew (a pseudonym) v R [2018] NSWCCA 128 (Basten JA); Scullion v R (NSWCCA, 15 July 1992, unrep) p 2 (Clarke JA).
R v Lanham [1970] 2 NSWLR 217; R v Cartwright (1989) 17 NSWLR 243 at 257.
Scullion v R (NSWCCA, 15 July 1992, unrep) p 2 (Clarke JA).
Scullion v R (NSWCCA, 15 July 1992, unrep) p 2 (Clarke JA).
R v McKenna (NSWCCA, 16 October 1992, unrep) (Kirby P).
Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49.
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [108] (Simpson J); Hoang v R [2020] NSWCCA 324 at [16].
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [107].
See the comments of Basten JA in Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [7]-[14].
See, for example, Ratten v The Queen (1974) 131 CLR 510 at 516-519; [1974] HCA 35 and Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35.
Richardson v R [2021] NSWCCA 304 at [111]; Tuncbilek v R [2020] NSWCCA 30 at [71]; Scott v R [2020] NSWCCA 81 at [163] and Toller v R [2021] NSWCCA 204 at [22].
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [110].
R v Munday [1981] 2 NSWLR 177 at 178.
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [113].
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [113].
Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [85].
Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [86].
See Cabezuela v R [2020] NSWCCA 107 at [50].
Middleton v Director of Public Prosecutions [2019] ACTCA 24 at [15].
Middleton v Director of Public Prosecutions [2019] ACTCA 24 at [18].
Middleton v Director of Public Prosecutions [2019] ACTCA 24 at [33]-[34].
Middleton v Director of Public Prosecutions [2019] ACTCA 24 at [51].
Rae v R [2019] NSWCCA 284 at [33].
Appeal Tcpt, 4 April 2022, pp 22-23.
Appeal Tcpt, 4 April 2022, p 14.
Appeal Tcpt, 4 April 2022, pp 15-16.
Rae v R [2019] NSWCCA 284 at [36]; R v Diab [2005] NSWCCA 64 at [19].
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [121] (Simpson J); Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [71].
Cf Kaveh v R [2017] NSWCCA 52.
Cornwell v R [2015] NSWCCA 269 at [59].
Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [14] (Basten JA).
Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13 at [3].
Respondent's Written Submissions, 25 March 2022 at [53].
Criminal Appeal Act 1912 (NSW), s 6(3).
Report, Dr Furst, 15 July 2018, p 3.
Report, Dr Furst, 22 February 2019, p 4.
Report, Dr Furst, 22 February 2019, p 6.
Report, Dr Furst, 22 February 2019, p 8.
Appeal Tcpt, 4 April 2022, p 7.
Appeal Tcpt, 4 April 2022, p 11.
Appeal Tcpt, 04 April 2022, p 12.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 45.

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