Argument on appeal
20 Mr Brink does not contend that the decision of the sentencing judge entailed error at the time it was made. The complaint identified in the Notice of Appeal and Mr Brink's written submissions was that his prosthetic leg had not been maintained whilst he was in custody. Mr Brink stated that the prosthesis needed to be replaced "due to the foot disintegrating and the mechanical knee seizing intermittently". He stated that authorities had been aware of the problem for at least a year but that, since he is a foreign national and not covered by Medicare, there had been lengthy discussions between departments about the cost and supply of a new prosthesis.
21 Mr Brink submitted:
"The undue stress on the applicant due to the lack of maintenance, the prospect of being immobile in the event of the failure of the prosthesis, the length of time afforded to replace the prosthetic leg constitutes "special circumstances".
These "special circumstances" were not fully taken into account by the sentencing judge as they were not foreseen."
22 Mr Brink subsequently filed an affidavit annexing medical records to sustain those submissions. The Crown also filed an affidavit annexing correspondence from Justice Health as to the present circumstances concerning the prosthesis. The first question is whether that evidence should be received.
23 It is well established that, in exceptional circumstances, this Court may exercise its jurisdiction to quash a sentence, notwithstanding the absence of error in the sentence first imposed. Ancillary to that power is the principle that, exceptionally, fresh evidence may be admitted to demonstrate that some less severe sentence is warranted. It is trite, however, that the power to intervene in a sentence imposed without error on the part of the sentencing judge is a narrowly confined exception to the fundamental principle of finality of proceedings.
24 The relevant principles were summarised by McClellan CJ at CL in Iglesias v R [2006] NSWCCA 261. There, his Honour explained (at [8]) that the conventional approach of this Court is not to receive evidence of events occurring after sentence where it is not suggested that the original sentence entailed error. That approach reflects the fact that the essential function of this Court is to determine whether or not there was error at first instance.
25 His Honour noted that, as an exception to the general approach, fresh evidence may be received in exceptional circumstances, such as to explain a medical condition which existed at the time of sentencing although the gravity of the condition was not fully appreciated at that time.
26 In a later decision in Springer v The Queen (2007) 177 A Crim R 13 at [3], McClellan CJ at CL gave examples of the kind of evidence of post-sentencing events that might be received in accordance with those principles. Relevantly for present purposes, the examples included evidence showing that the applicant's treatment in custody has been "quite different" from the expectation gained from the evidence led before the sentencing judge.
27 The fresh evidence sought to be relied upon by Mr Brink is set out in his affidavit sworn 5 July 2010. That affidavit and the medical records annexed to it disclose the following matters relevant to Mr Brink's appeal. Mr Brink requested stump socks on 11 June 2008 but did not receive them until 15 July 2009. He said that, during the intervening period, he had to make do with the two socks he had in his possession, which caused him great discomfort.
28 On 15 September 2008, Mr Brink notified authorities of a problem with the mechanical knee of his prosthetic leg. The medical notes confirm a request that day to have the prosthesis checked. He mentioned the matter again on 28 September 2008 and that is recorded in the notes.
29 Mr Brink states that his prosthesis was not checked until he was at Junee (presumably after he was sentenced in February 2009). He was ultimately seen by a rehabilitation specialist in Sydney on 7 October 2009, who noted that the existing prosthesis was "9 years old and worn out". She prescribed a new prosthesis. However, the particular prosthesis prescribed was never provided, apparently because there was no funding for it because Mr Brink is a foreign national and is not covered by Medicare.
30 Mr Brink finally received a new prosthesis from Wagga Base Hospital on 10 May 2010. He states that it had to be returned on 17 May 2010 due to the foot coming loose, causing him to fall. He states that under normal circumstances he would spend time at a clinic having various adjustments made and tried but that this was not possible due to his incarceration. There was no evidence of any ongoing difficulties with the new prosthesis.
31 The fresh evidence sought to be adduced demonstrates a measure of hardship and delay encountered by Mr Brink in obtaining his new prosthesis. However, as disclosed by the material outlined above, there was evidence in relation to those matters before the sentencing judge which his Honour specifically took into account. In particular, the judge was aware of the prospect of increased hardship being encountered by Mr Brink by reason of his prosthetic leg and of the possibility of its needing to be replaced whilst Mr Brink remained in custody.
32 Accordingly, I am not satisfied that the material sought to be relied upon by Mr Brink discloses exceptional circumstances such as to warrant its being admitted as fresh evidence in the appeal.
33 For those reasons, I would refuse leave to appeal.
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