Cornwell v Regina

The Sentence

1. The applicant was sentenced in relation to the following offences:

• One offence of steal motor vehicle pursuant to s 154A(1)(a) of the Crimes Act 1900;
• Two offences of aggravated break and enter dwelling with intent to commit a serious indictable offence, namely, larceny, pursuant to s 113(2) of the Crimes Act 1900.

1. The applicant was sentenced to an aggregate sentence of 5 years 3 months imprisonment to date from 24 October 2013 with a non-parole period of 3 years to expire on 23 October 2016.
2. The offence of steal motor vehicle carries a maximum penalty of 5 years imprisonment. The offence of aggravated break and enter dwelling with intent to commit a serious indictable offence carries a maximum penalty of 14 years.

Fresh Evidence

1. At the hearing on 14 September 2015, Mr H White of Counsel who appeared on behalf of the applicant, applied for leave to rely upon the following affidavits: Affidavit of Jason Cornwell, applicant, affirmed 5 August 2015. Affidavit of Jason Cornwell, applicant, affirmed 7 September 2015. Affidavit of Alan Cornwell, brother of the applicant, affirmed 4 August 2015. Affidavit of Tammy Maree Hilditch, partner of Alan Cornwell, affirmed 4 August 2015. Affidavit of John Pearson, solicitor, affirmed 28 may 2015. Affidavit of John Pearson affirmed 10 August 2015. Affidavit of John Pearson affirmed 11 August 2015. Affidavit of John Pearson affirmed 8 September 2015.
2. In addition, the applicant relied upon the report of Dr Williams (neurologist) which was annexed to Mr Pearson's affidavit sworn 10 August 2015.
3. The applicant also relied upon the report of Dr Colebatch (neurologist) dated 11 February 2015, a copy of which was Annexure B to the affidavit of Mr Pearson sworn 28 May 2015.
4. The Crown objected to the affidavit evidence sought to be read at the hearing: (T 2).
5. In the Crown's written submissions, at [6]-[11], reference was made to established principles by which the admissibility of fresh or new evidence is to be determined. The Crown submitted that before such evidence will be admitted it must be shown that the sentencing process, in the absence of such evidence, has resulted in a miscarriage of justice. Reference was made in that respect to observations made in Fordham v R (1997) 98 A Crim R 359 per Howie AJ (Hunt CJ at CL and Smart J agreeing). Reference was also made to the principle that where evidence was available to the applicant at the time of sentencing a miscarriage of justice would rarely result even if the evidence may possibly have had an impact upon the sentence passed. The question as to availability of evidence as to the diagnosis of the applicant's medical condition, namely, Huntington's disease, as at the date of sentencing is discussed below.
6. The Crown referred to an exception to the principles governing the admissibility of fresh evidence in cases where an applicant seeks to rely on a medical condition. In that respect, evidence of particular facts or circumstances, as they existed at the time of sentencing, even if not known, or imperfectly understood, at that time, has been admitted where the interests of justice have so dictated: Khoury v R (2011) 209 A Crim R 509 at [113] per Simpson J (Davies J and Grove AJ agreeing).
7. In the present application, however, the Crown submitted that application of relevant principles does not support the admissibility of the new or fresh evidence which the applicant sought to rely upon. It was observed that the decision to admit fresh evidence remained a discretionary one and that the reasons for the evidence not having been tendered in the sentence hearing will be relevant: Khoury v R, supra, at [121].
8. The submissions for the Crown will be further detailed below.

Grounds of Appeal

1. Two Grounds of Appeal were relied upon in support of the application. They were in the following terms: Ground 1: The sentence proceeded upon an erroneous view of the factual circumstances resulting in an unjust sentence being imposed. Ground 2: The aggregate sentence which was imposed in relation to all of the offences was manifestly excessive.
2. It was noted in the written submissions for the applicant that although, at the time of sentence, there had existed symptomatology of Huntington's disease referred to in the report of a Ms Gibson, Psychologist, which was tendered at the sentencing hearing, there was no evidence before the sentencing judge that established that the applicant at that time in fact suffered from Huntington's disease. The applicant had, for reasons discussed below, been reluctant to be tested for the disease.
3. In his written submissions on behalf of the applicant, Mr White stated that the applicant did not assert error on the part of the sentencing judge in relation to the sentencing process. He did, however, assert that the sentencing proceeded upon an erroneous view of the factual circumstances. In that respect reliance was placed upon the fact that, at the time he was sentenced, the applicant was suffering from Huntington's disease but that the disease had not been taken into account on sentence, in the circumstances to which I have referred, namely the absence of evidence concerning the same, the applicant having decided against undergoing testing that would establish the diagnosis.
4. The applicant relied upon his Outline of Submissions filed 28 May 2015 and an Outline of Further Submissions filed 25 August 2015. The Crown relied upon its submissions filed on 7 September 2015. Both parties' written submissions were supplemented by oral submissions at the hearing on 14 September 2015.

Sentencing Proceedings

1. The sentence hearing took place on 24 October 2013 and the applicant was sentenced on that date. As noted above, the report of Ms Helen Gibson, Psychologist, was tendered on the applicant's behalf on that occasion by his then counsel, Mr Booth. The report recorded the following observations at p 2: "…It was notable at interview that Mr Cornwell displayed intermittent bodily twitches consistently. This twitching was perplexing in isolation, however during discussions at interview it was revealed that Mr Cornwell's mother died from Huntington's Disease and, additionally, Mr Cornwell's older brother has also developed the disease. Huntington's disease is a genetically transmitted disease which inevitably proves fatal within 10-20 years of onset, and for which there is currently no effective treatment."
2. Ms Gibson outlined further some characteristics of the disease before recording at p 3: "Mr Cornwell stated that he has not been screened for the disease as he would prefer not to face the possibility of a positive diagnosis. Mr Cornwell added that the reason he has not fathered any children is because of the likelihood of passing on the gene as there is apparently an approximate 50% chance of the gene transmitting to any children of gene carriers. Given that Mr Cornwell exhibited marked physical twitching during interview, I am of the opinion that it may be useful to request that Mr Cornwell be further evaluated with respect to the possibility of cognitive impairment/decline. This may be undertaken either by way of assessment by a Psychiatrist and/or other medical investigations as may be deemed appropriate by the Court in order to clarify whether Mr Cornwell's offending behaviours may be attributable either wholly or in part to the presence/progression of Huntington's disease."
3. During the sentence hearing the possibility that the applicant may be suffering from Huntington's disease was raised by Mr Booth on the basis of Ms Gibson's observations. In making submissions on his behalf, Mr Booth stated that the applicant had: "…instructed us not to entertain any further investigation of the possibility of Huntington's disease being within his genetic make up. That's explained in the report, and perhaps is quite understandable…" (T 24 October 2013 at p 3).
4. Mr Booth later stated: "He's aware that he's going to spend a considerable period in custody. Notwithstanding that, he did not wish to ride on the coat tails of this illness that seems to genetically afflict his family. He does not want to know, and no amount of telling him that it may assist him would change his mind."
5. In these circumstances, the sentencing judge was correct not to take the disease into account in determining the appropriate sentence. Because no error is alleged on the part of the sentencing judge, I do not consider it to be necessary to detail further his Remarks on Sentence.

Leave to Adduce Fresh Evidence

1. In Turkmani v R [2014] NSWCCA 186, this Court considered a ground of appeal in respect to which the applicant sought leave to adduce fresh evidence as to his health and what was contended to be inadequate medical treatment in custody for a pre-existing leg injury.
2. The Court referred (at [65]) to the following statement by King CJ in R v Smith (1987) 44 SASR 587 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."
3. The Court in Turkmani went on to state at [66]: "Three examples of the application of this principle are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ("Iglesias"); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ("Springer"). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id)."
4. After detailing the fresh evidence in the case before them, the Court in Turkmani at [81]-[82] observed: "The criteria for the admission of such evidence is not entirely clear. In R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 at 76 Howie J stated that the Court receives evidence concerning events subsequent to sentencing which concern "the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed". However his Honour also noted (at 77) that the admission of such material was conditioned by the need for the circumstances to be "special and unusual" (citing R v Ehrenburgh (Supreme Court (NSW), 14 December 1990, unrep); see also R v Kertebani; Kertebani v R [2010] NSWCCA 221 at [37] to [39]). In Iglesias at [12] such evidence was admitted without the Court specifically adverting to whether it was "special" or "unusual". McClellan CJ at CL dealt with the material as follows: "[12] I am satisfied in the present case that the circumstances justify this Court in receiving the fresh evidence. Although the applicant had complained of symptoms which were clearly related to his carcinoma, his condition had not been diagnosed at the time of sentence. It was only a matter of weeks before the correct diagnosis was made which revealed a significantly adverse medical situation. However, whether, having regard to the facts which are now known, this Court should intervene raises different considerations. [13] Critical to that question is whether or not, by reason of the medical condition of the applicant as it is now understood, his period of incarceration will be more onerous than was appreciated when he was sentenced, justifying any reduction in his non-parole period. This requires consideration of his physical condition, the availability of medical facilities and whether he can be adequately treated within the prison system." (emphasis added)
5. The present case falls within either the first or second category of case identified by this Court in Turkmani (at [28]) in that the applicant's condition was unknown, it not having been formally diagnosed as at the date of the sentencing hearing, despite the applicant being symptomatic (according to the report of Ms Gibson) and there being indications that he may have then suffered from Huntington's disease.
6. In the present appeal, both parties acknowledged the general principle that parties will not normally be able to produce fresh or new evidence on appeal and the importance of the principle of finality. It was also acknowledged by the applicant and the Crown that evidence as to a medical condition may form the basis for an exception to the general principle of receiving evidence on appeal and that this has been confirmed by Turkmani, Khoury and the earlier cases of Iglesias and Springer as well as the decision of Dudgeon v R [2014] NSWCCA 301, a case where the applicant was terminally ill with cancer in which Fullerton J (Beazley P and Hidden J agreeing) stated at [23]: "I am also satisfied, that the jurisdiction of this Court is properly invoked and it was appropriate to receive the full complement of the applicant's medical records as fresh evidence on the appeal (including the materials furnished after the hearing of the appeal) and to reopen the question of an appropriate sentence in light of that evidence, including evidence bearing upon the circumstances which will make the applicant's continued incarceration more burdensome than would be the case were he in good health (see Iglesias v R … at [1]-[13]). Were I not persuaded that the applicant's terminal illness predated the date of sentencing, this Court would have no jurisdiction to receive fresh evidence bearing on his medical condition or to move to re-sentence on the basis of that evidence. Where a terminal illness is diagnosed after sentence and cannot be shown on the available medical evidence to have been extant at the date of sentence, the custodial conditions a prisoner in that situation may have to endure is a matter for the executive (see R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at [124]-[126])."
7. In the abovementioned circumstances, the Court granted leave to the applicant to rely upon fresh evidence in support of the application for leave to appeal.

The Fresh Evidence

1. Dr Williams, neurologist, had before him when preparing his report certain documents including a report of Dr James Colebatch dated 11 February 2015, a previous report of Dr Colebatch dated 28 July 2014, Justice Health Notes and a draft version of the applicant's Affidavit.
2. The critical medical evidence in relation to the applicant is to be found in the reports of Dr Colebatch and Dr Williams. Dr Williams also gave oral evidence at the hearing on 14 September 2015.

Dr Colebatch

1. Dr Colebatch is a consultant neurologist who diagnosed the applicant with Huntington's disease following DNA testing for the Huntington's gene abnormality. That diagnosis is one of the post-sentencing events relied upon by the applicant. Dr Colebatch made a number of observations about the disease at p 2 of his report dated 11 February 2015 as follows: 1. Huntington's disease is a progressive neurological disorder affecting movement as well as cognitive and psychiatric function. 2. Prognosis is for a shorter life expectancy and a figure of 10‑25 years has been suggested following diagnosis. 3. Death is most commonly the result of aspiration pneumonia or complications of immobility. 4. Patients are typically cared for at a specialised clinic at Westmead Hospital. 5. The onset of the disease may involve psychiatric or behavioural disturbances, or neurological symptoms, or both. Symptoms in the former category may include lack of inhibition leading to socially inappropriate behavior, disorganisation, apathy, depression and paranoia. 6. Dr Williams
2. Dr Williams provided his written opinion on 10 August 2015 following a request by the applicant's legal representatives. In relation to the general characteristics and symptoms of the disease, he gave similar information to Dr Colebatch. His report contained the following general observations: 1. The most obvious manifestation of Huntington's disease is chorea, an involuntary movement which interferes with the sufferer's voluntary movements (p 1). 2. The cognitive disturbances and symptoms suffered are more variable than the involuntary movements, which can be stereotyped. The psychiatric manifestations are "protean" (p 1). Cognitive and psychiatric manifestations of Huntington's disease vary according to the upbringing of the patient and particularly the behavior of symptomatic parents (p 2).
3. Dr Williams also made specific findings in relation to the applicant's medical condition. He considered that the applicant is likely to have been symptomatic from at least his early 20s, that is, for more than seven years prior to Dr Williams' report. The applicant was exhibiting the "movement" symptoms of the disease by 2010 'at the latest' (pp 3-4).
4. Dr Williams gave an opinion as to whether the presence of Huntington's disease could be considered to be a mitigating factor vis-a-vis the applicant's criminality as he understood it to be. In this context he noted that in sufferers of Huntington's disease "…the control of thinking, and insight into the consequences of contemplated actions, are progressively compromised" (p 4). Dr Williams stated that an adult who cannot "control their thinking" in the expected way: "may fail to take into account pertinent aspects of the situation, fail to identify all possible actions, fail to imagine likely consequences of those actions, or fail to heed recognised social constraints…Mr Cornwall (sic) shows evidence of this cognitive dysfunction in his psychological assessment" (pp 4-5).
5. Dr Williams considered that in the applicant's case the consequences of his cognitive decline would be compounded by the fact that his cognitive function was well below average independent of the disease (p 5). After further detailing aspects of the applicant's condition which, in his opinion, amounted to mitigating factors, Dr Williams concluded at p 7: "The degree to which these mitigating factors can or should be taken into account is for the court to decide. However, if appropriate supervision of Mr Cornwell's neurodegenerative condition can be provided outside of the penal system, I would regard that as the most appropriate management for a man with a recognised neurological disease, and poor long-term prognosis."
6. In his oral evidence, Dr Williams stated that the fact that a car was stolen by the applicant at the time of the offending the subject of the sentence "may represent repetitive behavior or inability to inhibit behavior which is one of the hallmarks of cognitive dysfunction in Huntington's disease": T 4:30-35. The attempt by the applicant to steal a cigarette machine indicated, in Dr Williams' opinion, a "lack of judgment or a lack of planning…": T 4:35-40.

Other Evidence

1. The affidavit of Tammy Maree Hilditch, the partner of the applicant's brother, included evidence as to the applicant's family situation and particularly his mother's condition and her incapacity as a result of suffering Huntington's disease: Affidavit of Tammy Hilditch at [3]. Ms Hilditch also gave evidence in her affidavit at [7] as to the applicant's condition as she perceived it and particularly his ability to talk which she stated has "gotten much worse" since he has been imprisoned and the fact that he walks in a manner which she views as "quite odd"' The Affidavit of Alan Cornwell, the applicant's brother, addressed similar issues.
2. In his affidavit of 5 August 2015, the applicant gave evidence as to his mother's condition and death. The evidence indicated that his mother had suffered from Huntington's disease. At paragraphs [4]-[9] of his affidavit the applicant also provided evidence as to his symptoms and condition in custody. He said he has problems standing and walking and that he finds it difficult getting up and down stairs which he cannot avoid, as access to his cell requires the use of stairs. He stated that he trips over a lot, cannot write because of his twitching, experiences dizziness and has trouble swallowing. At [9] of his affidavit he stated that the gaol is a "work-based gaol" and that he had been put on light duties because of his illness. He stated that he cannot climb ladders or use power tools. He also stated that he was going to be moved at one stage to a lower security prison but that he was "not allowed to go there" because there were no medical staff to treat him at the alternative facility.
3. In his second affidavit, dated 7 September 2015, the applicant stated that he had been "removed from work" until he was approved to work by medical staff. As such, he cannot earn any income in custody.
4. A letter prepared by a social worker, John Conaghan, was annexed to the affidavit of John Pearson dated 11 August 2015. Mr Conaghan set out the applicant's family history of Huntington's disease as well as health and support services that the applicant could access for treatment as a sufferer of the disease.

Crown's Case on Fresh Evidence

1. The Crown relied upon two affidavits of Catherine Anne Williams dated 26 August 2015 and 8 September 2015. The first affidavit annexed a report from Senior Assistant Superintendent CP MacGregor dated 24 August 2015 which was endorsed by the Acting General Manager of the Cessnock Correctional Centre, Simon Raper. This report confirmed that the applicant had applied for consideration to be moved to a lower security correctional centre but that this did not eventuate because of the lack of medical support in the alternative facility. The report also confirmed that the applicant is unemployed as a result of his condition. In written submissions, the Crown relied upon the statement in the report that a soft food diet is available to the applicant, as is a cell on the ground floor of the gaol.
2. Ms Williams' second affidavit annexed a report of Dr Katerina Lagios of Justice Health and Forensic Mental Health Network dated 8 September 2015. In that report, Dr Lagios stated that the applicant had been referred to the Huntington's Clinic at Westmead Hospital, where he has an appointment in October 2015. It was stated that the clinic would be involved in the long term management of his care. This would require that the applicant be transferred to a metropolitan centre where he would have better access to medical specialists.
3. As noted above, the Crown in its written submissions relied upon the fact that the decision to admit fresh or new evidence is a discretionary one which, it argued, should not be exercised in this case given that: 1. No error had been made by the sentencing judge and that the present application was not the appropriate avenue for addressing the issue concerning the applicant's medical condition. The Crown submitted that the appropriate course was for it to be determined by the Executive, as the body responsible for his care requirements or his release to parole under s 160(1) Crimes (Administration of Sentences) Act 1999. 2. The applicant is bound by the actions of his counsel at the sentencing and his own instructions to not seek diagnosis.

Conclusion as to Admitting Fresh Evidence

1. The Crown did not contend that the applicant had not suffered from Huntington's disease at the time of the sentencing. As such, the comments of Fullerton J in Dudgeon referred to at [39] above are apposite.
2. It is clear from the authorities discussed above that this Court has the power to admit the fresh evidence and that the intervention of the Executive is not the sole avenue available to him.
3. I consider that the evidence establishes that the pre‑sentence instructions given by the applicant to his legal representatives, to the effect that he did not wish to undergo testing for Huntington's disease, were justified by psychological factors and particularly the applicant's stated fear of a positive diagnosis following his family's experiences of living with the deteriorating condition. I accept the applicant's statement to the psychologist, Ms Gibson, that he "has not been screened for the disease as he would prefer not to face the possibility of a positive diagnosis". In these circumstances the applicant's decision not to seek testing should not operate to his disadvantage in the determination of the present application.
4. The authorities establish that fresh evidence and particularly fresh evidence as to medical conditions should be admitted where it is in the interests of justice to do so. The Court at the hearing on 14 September 2015 determined that the discretion should be exercised in this case in light of the unique psychological factors leading to the applicant's decision to refuse testing for the disease prior to sentencing. Also taken into account was the fact that the applicant was clearly suffering from the disease at the time of sentencing, and that custody is likely to be more burdensome for him having regard to his particular circumstances.

Consideration - Re-Sentencing

1. The applicant submitted that there were two ways in which his suffering from the disease, had it been known to the sentencing judge, may possibly have been relevant, namely: 1. The effect of the disease on his rationality and understanding of his actions and in turn the objective seriousness of the offences committed. 2. The likelihood of imprisonment being particularly onerous or burdensome on him and the possibility of him suffering increasing hardship as his condition deteriorates.
2. Dr Williams' report addressed the first issue, that is, whether the disease could be taken into account as a mitigating factor against the applicant's criminality. Given the applicant's lengthy criminal history and the young age at which he started offending, doubt exists as to whether the sentencing judge, had the medical evidence been available, would have considered it to have a bearing on the objective seriousness of the offending.
3. The ground that determined this Court's intervention and re-sentencing of the applicant was the second issue. It has been necessary to undertake an assessment as to the extent to which the applicant's condition has and will continue to make his time in custody more burdensome than it would be if he did not suffer from Huntington's disease. The matters addressed in the affidavit evidence relied upon by the Crown did not provide a sufficient basis upon which the hardship could be adequately addressed.
4. The applicant's physical condition, in particular his symptoms established by the evidence, suggest that there has been some progressive deterioration in his mobility. This has caused him to trip and fall on occasion and has resulted in his inability to climb stairs and ladders. The latter effect has meant that the applicant cannot work which, on the evidence, can be considered as adversely impacting on his psychological welfare.
5. One psychological effect of Huntington's disease identified by both Dr Colebatch and Dr Williams as common to those who suffer from the disease is depression. The likelihood that the applicant will continue to experience both physical and psychological disabilities is of significance. The evidence supports the conclusion that such disabilities will make his imprisonment more burdensome.
6. It is apparent from the evidence that steps have now been taken to ensure treatment is available to the applicant through the Westmead specialist clinic. Whilst this is undoubtedly beneficial in terms of the applicant's ongoing imprisonment, it would require his transfer to Sydney which would result in his relocation away from his family who are currently able to visit him regularly.
7. Whilst no error is alleged in the sentence imposed, the fresh evidence as to the applicant's subsequent diagnosis, his deteriorating physical condition, his limited life expectancy and the adverse psychological impact of the diagnosis upon the applicant, supported the need for this Court's intervention.
8. For the purpose of re-sentencing the applicant in respect of the three offences for which he was charged, as to which see [14] above, it was determined that the aggregate sentence stated in [12(5)] above should be substituted for the aggregate sentence imposed by the District Court. In accordance with the provisions of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, it is noted that had separate sentences been imposed instead of the aggregate sentence which this Court did impose on 14 September 2015, such sentences would, there being no need to specify non-parole periods, (after taking into account the relevant matters under Part 3 of that Act) have been as follows: 1. The offence of steal motor vehicle pursuant to s 154(1)(a) of the Crimes Act 1900, a term of imprisonment of 1 year 3 months. 2. In respect of each of the two offences of aggravated break, enter and steal pursuant to s 113(2) of the Crimes Act 1900, a term of imprisonment of 3 years 6 months.
9. This Court in determining the aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months, made allowance for an appropriate degree of concurrency in respect of the above indicative sentences.
10. The effect of the re-sentencing order made by the Court on 14 September 2015 accordingly is that the aggregate sentence was reduced by 9 months to an aggregate sentence of 4 years and 6 months and the non-parole period was reduced by 6 months to a period of 2 years and 6 months. The non-parole period will expire on 23 April 2016 upon which date the applicant will be eligible for parole.
11. WILSON J: I have had the advantage of reading in draft the judgment of Basten JA, and that of Hall J, providing reasons for the orders made by the Court on the date of the hearing of the appeal.
12. I regard the evidence of the applicant's medical condition, present at the time of sentence (if not undiagnosed) as having an impact upon both the applicant's moral culpability for these offences and, more significantly, upon the conditions under which the remainder of his sentence will be served.
13. I therefore agree with the reasons of Basten JA and Hall J, and with the orders the Court made.

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