Doudar v R

Court of Criminal Appeal (NSW)|2020-11-25|Before: Hoeben CJ, Bellew J, Wright J, Hulme J

Solicitors: One Group Legal - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2018/254011 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Doudar [2020] NSWSC 1262 Date of Decision: 17 September 2020 Before: R A Hulme J File Number(s): 2018/254011

Ground (1) - In assessing the objective gravity of the offence, his Honour erred in finding beyond reasonable doubt that: 1. there had been prior planning and arranging; 2. that Nazlioglu was assisted in evading justice for the period in which the police were unable to locate the vehicle; and 3. the applicant shared a belief that Nazlioglu and others had an entitlement to extinguish the life of another.

Ground (2) - his Honour, in concluding that the evidence was not sufficient to support a finding that the applicant is experiencing more onerous custodial conditions as a consequence of his diagnosis with diabetes, failed to have regard to the report of Professor Woods, as supported by the medical records.

Ground (3) - his Honour erred in failing to take into account the effects of the COVID-19 pandemic because there was no evidence as to the effect the restrictions had upon the applicant.

Ground (4) - his Honour erred in finding that the applicant did not really have anything to rely upon in terms of a subjective case except for his plea of guilty.

Ground (5) - Based on fresh evidence now available to the applicant, a miscarriage of justice was occasioned as a consequence of a misapprehension at the time of sentence as to the onerousness of the applicant's custodial conditions as a result of:

the standard of care available to the applicant in custody with respect to the treatment of his diabetes;
the extent to which that condition had stabilised; and
the applicant's levels of anxiety and stress as a result of that condition.

Factual Background

Mahmoud ("Mick") Hawi came out of the Fitness First gym in West Botany Street, Rockdale shortly after midday on 15 February 2018. He got into his black Mercedes Benz 4WD, which was parked just outside the entrance. A man dressed in black and wearing a black balaclava approached the driver's side window and shot Mr Hawi multiple times in the head and upper body with a pistol.
A number of bullets hit the front glass windows and doors of the gym. There were patrons of the gym and members of the public in the immediate vicinity.
First aid was provided by members of the public before police and ambulance officers arrived. Mr Hawi was taken to St George Hospital. It was found that he had suffered a non-survivable penetrating brain injury and he died after life support was withdrawn.
On the Crown case before his Honour the person who shot Mr Hawi was Yusuf Nazlioglu (Nazlioglu), a close friend of the applicant. Nazlioglu used to be friendly with Mr Hawi but they had a falling out in 2017.
Nazlioglu was driven to the scene of the shooting in a silver Mercedes Benz by Jamal Eljaidi. Immediately after killing Mr Hawi, they drove to Chandler Street, Bexley. There they set fire to the Mercedes and then drove away in a silver Toyota Aurion that had been parked nearby earlier that morning. They went to premises in Highworth Avenue, Bexley and parked the Aurion in a garage.
At 7.30pm on 17 February 2018, the applicant left his home in Macquarie Street, Sydney with Nazlioglu. A short time after 8.00pm, they and Moustafa Salami were captured on CCTV arriving with a tow truck at the premises in Highworth Avenue, Bexley.
The tow truck reversed into the driveway and the three men alighted and loaded the silver Aurion onto the back. Salami took it to Botany Road, Rosebery where it was unloaded and parked. The applicant and Nazlioglu returned to the applicant's home in Macquarie Street, Sydney, arriving at 9:20pm.
The Agreed Facts state: "At the time of loading the vehicle onto the tow truck, [the applicant] knew that the vehicle had been used by Nazlioglu as a getaway car following the shooting of the deceased Hawi. [The applicant] knew that the vehicle had been stored at Highworth Ave in order to conceal its whereabouts. In loading the vehicle onto the tow truck, [the applicant] intended to assist in disposing of the vehicle in order to assist Nazlioglu to evade detection for his involvement in the killing of the deceased."
By 16 March 2018, the silver Aurion had been identified as a vehicle of interest in relation to the murder. On that date, police were completing a CCTV canvass along Botany Road when they came across it by chance. A black balaclava was found in the front passenger footwell. Gunshot residue was recovered from the balaclava that matched that which was found at the scene of the murder. DNA was recovered from the balaclava that was consistent with that of Nazlioglu. More DNA was found in the vehicle that was consistent with that of Messrs Nazlioglu, Eljaidi and Salami.
At about 2:50pm on that day, police saw a silver Toyota Aurion parked nose in from the road. They noticed that the car was similar in appearance to the silver Toyota Aurion that was a vehicle of interest that police had been looking for in relation to the murder of Hawi. Police saw that the car had no number plates and that the hub caps were of a similar style to those on the silver Aurion that police were looking for.

Objective gravity and moral culpability

The sentencing judge assessed the objective seriousness of the offence as moderate and the applicant's moral culpability as high (Reasons [21]). The sentencing judge had regard to the following features: 1. the foundational offence, being the murder of Mr Hawi, was a horrifying, brazen, dangerous and violent public execution, and those circumstances were known to the applicant (Reasons [14]); 2. the applicant was aware that the murder was well planned (Reasons [19]); 3. the precise acts that constituted the applicant's offence were limited, noting that he assisted in the disposal of the secondary getaway car in order to help the principal evade justice (Reasons [15]); 4. the applicant's criminality was not limited to the precise acts described, as it may be inferred that there was planning and arranging prior to the applicant's participation in the disposal of the car (Reasons [17]); 5. the principal offender was assisted in evading justice for the period in which the police were unable to locate the car, which was not found for another month (Reasons [17]); 6. the applicant's actions were directed towards allowing a vicious and cold-blooded murderer to evade justice (Reasons [20]); and 7. the applicant's preparedness to assist the principal and others to evade justice, "demonstrated that he shared their arrogant and immoral belief that they had an entitlement to extinguish the life of another person" (Reasons [20]).

The bail application

Before the sentence proceedings on 17 September 2020, the sentencing judge, on 17 April 2020, rejected an application for bail by the applicant. Since the sentence proceedings referred to evidence given in the bail application, it is necessary to refer to some of that evidence which is fully set out in Doudar v Director of Public Prosecutions (NSW) (unrep, Supreme Court (NSW), R A Hulme J, 17 April 2020): "The hearing of the application and evidence relied upon … 10 A number of affidavits were read and various other documents were tendered in support of the application. (They are itemised in the transcript.) ... 11 The Crown opposed the application. It tendered a bundle of documents with the contents itemised on a covering page. There were also written submissions dated 1 April 2020. 12 In relation to the medical issue, both parties relied upon certain portions of the above material but in terms of expert evidence the Crown tendered a report by Dr Gary Nicholls, Clinical Director, Primary Care, Justice Health and Forensic Mental Health Network (JH&MHN), dated 3 April 2020. The applicant tendered a report of Dr Soji Swaraj, a consultant endocrinologist and physician at Concord Hospital, dated 6 April 2020 and the clinical notes of Mr Minh Tri Phan, Clinical Nurse Specialist, Grade 2 - Diabetes Educator, JH&FMHN, dated 27 March 2020. In response to the report of Dr Swaraj, the Crown tendered an email from Dr Nicholls ... … 14 Subsequent to the hearing, counsel for each party agreed upon some extracts from the medical records being tendered. They were relevant to an issue raised in the course of questioning of the experts about occasions when Mr Doudar's blood sugar levels had been above or below the acceptable range. The 21 pages extracted were sent by email to my associate with my concurrence. ... Type 1 diabetes 16 An affidavit by Mr Michael Ayache, solicitor, dated 20 March 2020 records that Mr Doudar provided instructions on 16 March 2020 to pursue a bail release application for the following reasons. "Mr Doudar is being held at the Shortland Correctional Centre at Cessnock. In the first week of March 2020, he began to suffer from a dry throat, excessive urination and blurred vision. On 5 March 2020, he complained to a nurse of excessive thirst and excessive urination. He was told that there was nothing wrong and he should just keep drinking water. On 6 March 2020, he began to suffer extreme stomach pains and he went to the clinic. He was shaking and vomiting. He was given some fluids and, after six hours, he was sent back to his cell. He was told that he had a stomach bug. On 7 March 2020, he continued to suffer from stomach pains and felt he could not breathe. He went to the clinic. He was taken to Cessnock Hospital. On arrival, he had lost all vision. He was placed in a wheelchair. He believed that he then lost consciousness. He woke up in intensive care in John Hunter Hospital. A doctor told him that he was lucky to be alive, he had developed Type 1 Diabetes and he would require insulin injections for the rest of his life. Lantus was the first insulin medication that was provided but his BSLs remained high. He was then prescribed Toujeo and it "worked". Mr Doudar was discharged on 11 March 2020 and taken back to Shortland Correctional Centre. He was seen by a nurse the following day. The nurse told him that he could not be given Toujeo because it was not available in the gaol. He was given Lantus and his BSLs went straight up. The clinic checked his BSLs and he was told that he needed to go back to hospital. Mr Doudar was returned to John Hunter Hospital on 13 March. He was treated, stabilised and returned to the gaol. Since his return, he was still being given the "incorrect medication". The only way he was able to keep his BSLs down was by eating very little. That created the problem of him not having any energy and he felt dizzy. His BSLs were still at the "peak limit". He remained in the clinic; he had not been returned to his cell. Mr Doudar instructed that he was concerned that the gaol did not have the insulin that he had been prescribed at John Hunter Hospital (Toujeo) and this put his life at risk. He was also concerned that he was initially neglected by being told to simply drink more water and the fact that the doctor at hospital had told him that he was lucky to be alive. Mr Doudar instructed that he does not want to risk something happening to him in gaol and that he would rather be locked up at home but getting the correct medicine. He was unable to check his own BSLs because he was not being given the tools to do so. Every time he felt sick and needed to check he had to ask the nurse." 17 Mr Doudar provided further instructions to Mr Ayache on 20 March 2020. "Mr Doudar had been told that Toujeo is a contraband in gaol. He did not have the machine to be able to test his BSLs. On Monday afternoon (presumably 18 March 2020) he was returned to his pod but had lost 3 kg because he was not eating properly in order to keep his BSLs down. When he felt unwell he could not walk to the clinic but had to press a buzzer in his cell and wait for an officer to respond. It could take between 10 and 30 minutes for the officer to arrange for the nurse to attend. When the nurse does attend, he accompanies the nurse to the clinic but this takes about 5 minutes. There are no nurses on duty after 10pm. He cannot receive any assistance or insulin shots after that time. Since being back in the pod he has been back to the clinic three times each day after feeling dizzy." 18 Mr Doudar had a conference via AVL with Mr Mohammad Chahine, solicitor, on 23 March 2020 and provided further instructions. "Mr Doudar said he had lost some 13 kg since being diagnosed with the illness. He complained about his health, he was dizzy, and his eyesight was not the best. He had raised his concerns about the medication on multiple occasions but had been told that he will be unable to receive that which was prescribed at the hospital whilst in custody. He does not tell health staff the actual extent of his health issues. That is because he fears being taken to hospital and the way he is transported is extremely uncomfortable and he may remain handcuffed to a bed for days. Then, on return from hospital, he will be placed in the clinic and have no or very little access to a phone or anyone because of his classification." 19 Mr Doudar's account of his experience was not entirely consistent with the evidence adduced at the hearing of the application. Mr Doudar attends the clinic three times each day in order to have his BSLs monitored. Dr Nicholls said, "Patients in the [JH&FHMN], if they are known to have diabetes, are monitored very closely and probably have as good as, if not better, monitoring of their sugars than they may do in the community". 20 Mr Doudar's account of losing 13 kg in weight since the diagnosis may be an exaggeration. He was diagnosed upon his admission to hospital on 7 March and his account of this weight loss was given on 23 March. Dr Nicholls was asked in general terms about a patient who had lost 13 kg in a month. He agreed that it was a significant amount of weight and, although not perhaps too unusual in the stabilisation phase after first diagnosis, it was certainly something that should be reviewed. Dr Swaraj considered it a rapid weight loss that could indicate insufficient insulin therapy. 21 Dr Nicholls saw in the medical notes that on 16 March 2020 the applicant had a body mass index of 24.4. He said that this was in the upper normal range for a patient. Mr Phan had a consultation with Mr Doudar on 27 March 2020. He recorded that Mr Doudar's height was 180cm and his weight was 83kg. That indicates an increase in his body mass index over the preceding 11 days to 25.6. I note also that in the medical records there are a nurse's notes dated 13 March 2020 in which the history includes, "weight loss developing since 12/2019", suggesting that the loss was not as rapid as Dr Swaraj had opined about. 22 It is unnecessary to refer in any detail to other aspects of the expert medical evidence. The issue appears to have evolved somewhat from the way it was framed when the application was filed. After the evidence of the experts had been adduced, Mr Brady SC commenced his closing submissions on the subject by saying: "We are not saying that diabetes can't be managed in a gaol setting. It clearly can, and it clearly is for a number of people suffering from diabetes." 23 Mr Brady sought to make the point that the unusual factor in this case is that Mr Doudar is not simply an inmate who has diabetes; he is an inmate who has been first diagnosed whilst in custody. The experts agreed that coming to terms with such a diagnosis is difficult and stressful. Mr Brady submitted that Mr Doudar is anxious and is fighting to comprehend what is happening to him and to understand the condition. He is doing so in circumstances vastly different to a person who is not in custody. 24 It was submitted that Mr Doudar is unable to trust the people who are responsible for providing the care that he requires. His experience of being, in effect, rebuffed when he first presented with symptoms contributes to that. That was compounded by the way he was first taken to hospital, handcuffed and shackled in a prison van rather than in an ambulance. He was told by a doctor that he was lucky to be alive. It is further compounded by his inability to understand why he was not receiving the type of insulin (Toujeo) that was prescribed for him at the hospital. 25 It was submitted that while Dr Nicholls said that Mr Doudar is receiving treatment as good as he would in the community, if not better, that did not reflect what has occurred. He referred to Mr Doudar's experience on his first admission to hospital when he was diagnosed with ketoacidosis, a life-threatening condition. The symptoms that he had presented with at the gaol clinic in the previous two days had been misdiagnosed. He referred to "spikes and dips in his blood sugar" and to nurses not having followed up with the diabetes educator in anyway. 26 It may be accepted without qualification that Mr Doudar has felt anxious and stressed about all that has occurred over the past six weeks or so, having to be urgently admitted to hospital with a life-threatening condition and then being told that he has a life-changing health condition that will require daily monitoring and medication. Not having the independence to deal with all of the consequential effects like a person in the community but being beholden to his custodians must be very worrying indeed. 27 Acknowledging all of that, it is the case as Mr Brady accepted that Mr Doudar is receiving an appropriate level of care. With the benefit of hindsight, the symptoms with which he presented on 5 and 6 March should have led to investigation of the possibility of diabetes. However, since the diagnosis has been made, the health professionals are now fully aware of it. Mr Doudar is being seen and monitored far more regularly than a person in the community. True it is that there have been fluctuations in his BSLs despite him receiving regular insulin but that appears to be stabilising. 28 The extract from the medical records that was tendered indicates that after being returned to the gaol on 11 March, Mr Doudar experienced elevated BSLs on 12 and 13 March. Nursing staff measured and recorded this and consulted a doctor who advised on treatment. When the level remained high on the evening of 13 March 2020, he was transferred to John Hunter Hospital, even though asymptomatic. He was returned to the gaol the same night but kept in the clinic. 29 Mr Doudar was seen by a specialist, Dr Vlahovic, on 16 March 2020. The notes include that Mr Doudar was "well" and "denies any other symptoms or concerns". 30 On each of 19, 20 and 21 March 2020 there are notes indicating Mr Doudar's BSLs were below the normal range. Nursing staff took action to address this and there were no adverse consequences. The extracted records do not indicate any subsequent instances of BSLs above or below the normal range. 31 Mr Doudar was seen by the diabetes educator, Mr Phan, on 27 March 2020. He was given information and advice in a 30-45 minute consultation. He was provided with information handouts and told to let the nurses know if he wanted any further information. It would seem that Mr Doudar has not desired any further assistance. Mr Phan was asked if anyone had contacted him about difficulties in balancing Mr Doudar's BSLs and he replied in the negative. I note that there is nothing in the extracts from the medical records about any such difficulties having been encountered since Mr Phan spoke with Mr Doudar. 32 As to the appropriateness of Mr Doudar being given Lantus as opposed to Toujeo, Dr Nicholls said that he had been seen by Dr Emma Croker on 3 April 2020. She was described as a person with advanced training in diabetes. She recorded that there was no indication that Toujeo was required; Lantus or an equivalent is "absolutely fine". 33 I accept that Mr Doudar has an elevated sense of anxiety and stress as a result of his diagnosis with type 1 diabetes. The evidence indicates that he is going through a period of stabilisation and that there has been improvement in that respect. He is receiving appropriate care that, in some respects, includes him receiving closer monitoring and supervision of his condition than a person might expect to receive in the community. COVID-19 34 There are number of consequences of the COVID-19 pandemic that provide for more onerous conditions of incarceration for all inmates of correctional centres. They were discussed by Hamill J recently in Rakielbakhour v DPP [2020] NSWSC 323. In Mr Doudar's case, as a diabetic he may be more susceptible to infection and to a more adverse outcome if infected. Dr Swaraj added the rider to his opinion in relation to this: "especially if it is poorly controlled". 35 Dr Nicholls responded by saying that "there are Network policies around preventing this and other illnesses in the custodial environment". He said, "there is strict infection control at the Network - which is supported also by the ways that patients have their supervised insulin". 36 Mr Brady submitted this is another way in which the anxiety that Mr Doudar experiences is exacerbated. That is accepted. ... Conclusion 40 I have discussed the diabetes issue at some length and the other major aspects of the application more briefly. In short, I am satisfied that the circumstances of Mr Doudar's custodial experience are now more onerous than they were and that this has been exacerbated for the various reasons mentioned. 41 I am also satisfied that the risk of flight is significantly reduced from what it was at the time of the application determined by Garling J. The other bail concerns raised by the Crown are probably at a lower level as well. 42 However, there remains the fact that what is alleged against Mr Doudar is an extremely serious example of an extremely serious crime. It was rightly described by Garling J as an offence "involving a high level of criminality [that] was committed in circumstances involving a danger to the public and in circumstances where it could only be said to have been a planned execution". He also said, "The murder was carried out by a group of people who had no regard for the law". 43 It is significant, in my view, that the applicant accepts that the prosecution case is one that is reasonably strong. There is a reasonable prospect of conviction. Conviction will inevitably lead to a lengthy period of imprisonment. A further development after judgment reserved 44 After judgment on this application was reserved over the Easter weekend, my associate received an email from Mr Chahine, the applicant's solicitor, at 5.20pm on 13 April 2020. It conveyed that the applicant had contacted Mr Chahine on Saturday 11 April to advise that "he may be taken to hospital as his BSL were at 24 which is considered very high". (The Crown was appropriately informed and were copied on this email.) 45 I withheld determination of the application until this issue had been investigated. 46 It emerged that when the applicant had attended the gaol clinic at 9.25am on 11 April 2020 his BSL was found to be 21.9. Clinic staff contacted Dr Vlahovic for advice and provided the appropriate treatment. At 1.49pm that day the applicant's BSL was at 6.0 (within the normal range). The following morning the level was 13.2 but at 1.36pm it was 5.6 (again, within the normal range). 47 The applicant provided a further report by Dr Swaraj. It included that where a patient's BSLs have not been stabilised, glucose testing needs to be regular enough to be able to adjust the insulin dosage. That is precisely what occurred over the Easter weekend. What may have occurred if the applicant did not have the benefit of the regular and close monitoring that he is currently receiving is unknown. 48 None of this changes the view I had previously formed as to the outcome of the application. 49 In all of the circumstances, I am not satisfied that cause has been shown why the continued detention of Mr Doudar is not justified."

Applicant's subjective case

The sentencing judge set out the applicant's subjective case as follows. At the time of the offending, the applicant was aged 37 and had a significant criminal history, commencing at the age of 18.
In 2003, the applicant was sentenced to imprisonment for 10 years and 3 months with a non-parole period of 6 years and 10 months for the offences of maliciously inflicting grievous bodily harm and supplying a commercial quantity of a prohibited drug. He was released to parole in March 2009. His parole was revoked five months later. In 2011, while subject to parole, the applicant committed offences of breaking and entering with intent to steal, firing a firearm in a public place and assault. He was incarcerated and released to parole in October 2013. His parole was revoked in June 2014.
In 2016, the applicant was placed on a 2 year good behaviour bond for offences of impeding the safe navigation of a vessel and resisting an officer. As a condition of that bond, the applicant was to continue counselling and treatment as recommended by his psychiatrist, Dr Olav Nielssen, and accept supervision by the Probation and Parole Service. There was no evidence before the court of what was achieved in this period of supervision and treatment. The index offence was committed while the applicant was subject to that good behaviour bond, which was an aggravating feature on sentence (Reasons [31]).
On 16 September 2019, the applicant committed an assault while in custody at the Shortland Correctional Centre. He was initially sentenced to three months imprisonment, which was quashed on appeal to the District Court, where he received in lieu, a conviction with no further penalty.
At the time of sentence, the applicant was married with a three year old son. He left school at the age of 16, and the only employment history is that he was engaged in employment as a furniture removalist in 2014-2015.
His Honour made the following observations concerning the applicant's health in his Reasons on sentence: "37 A significant feature of the subjective case is that Mr Doudar was diagnosed with diabetes type 1 in early March 2020. He experienced a life-threatening event that brought about his hospitalisation and the diagnosis. He experienced significant distress in coming to terms with the fact that he had a life changing physical health issue. It took some time for medical staff to adjust his regime of treatment. He had to make lifestyle adjustments and experienced consequential psychological difficulties. 38 A bail application was brought in April 2020, largely upon a premise that the diagnosis adversely affected his conditions of custody, significantly because of a lack of appropriate treatment. Medical evidence was adduced but it was qualified to a significant extent by the evidence adduced by the Crown. Contrary to the way the application was first characterised, it was ultimately accepted by senior counsel for Mr Doudar that he was receiving the appropriate level of care in the custodial environment. The conclusion I reached in my judgment refusing the bail release application on the significance of diabetes was as follows: "I accept that Mr Doudar has an elevated sense of anxiety and stress as a result of his diagnosis with type 1 diabetes. The evidence indicates that he is going through a period of stabilisation and that there has been improvement in that respect. He is receiving appropriate care that, in some respects, includes him receiving closer monitoring and supervision of his condition than a person might expect to receive in the community." 39 In the proceedings on sentence, some medical records and reports in relation to this issue were tendered. It did not advance in any material way the assessment I made at the time of the bail application in April 2020. It was not contended that I should now qualify or modify the conclusion quoted above. The principal submission was that Mr Doudar remained in a state of anxiety and distress which contributed to him experiencing, on a subjective level, more onerous conditions of custody than would otherwise be the case. 40 The basis for this submission was the account contained in the report of Professor Woods. I am concerned, however, that the professor based his opinions in part upon what Mr Doudar told him and in part upon the documentary material relating to the diabetes condition. There are two difficulties with this. Professor Woods is not an endocrinologist and is not qualified to express opinions about the appropriate level of care that Mr Doudar should be receiving for his condition. Secondly, Professor Woods refers to two reports that were relied upon in support of the bail application last April in which the authors referred to the level of care then as "suboptimal". It appears that this, in conjunction with what he understood from the history given by Mr Doudar, has led the professor to believe that "suboptimal" is the level of care that has continued to the present time. That was candidly disavowed by senior counsel. It is accepted that Mr Doudar is being adequately treated. 41 The finding I made on the bail application - that Mr Doudar had an elevated sense of anxiety and stress because of his diagnosis with type 1 diabetes - was based upon events that were then recent. Five months have since elapsed. It may well be that the situation has stabilised, to some extent at least. 42 The evidence is not sufficient to support a finding that the applicant is experiencing more onerous custodial conditions as a consequence of his diagnosis with diabetes. 43 Another contribution to the assertion of more onerous custodial conditions was the current COVID-19 pandemic and the concomitant restrictions upon inmates in the correctional environment. It is well known that the restrictions include the cessation of face-to-face visits and substitution of video telephone contact with an inmate's family and friends. There is also the reduction in the availability of educational, vocational and other rehabilitative programs available to inmates. There is no evidence as to the effect these restrictions have upon Mr Doudar. I am not prepared to speculate or make assumptions in the absence of evidence. 44 Professor Woods wrote about certain risks, needs and "responsivity" under a heading in his report of "Risk Analysis and Treatment/Intervention Need". Unfortunately, he did not purport to provide any assessment of Mr Doudar's likelihood of reoffending or prospects of rehabilitation. He stated a belief that it was "critically important" that Mr Doudar receives treatment for his medical conditions and some appropriate psychological treatment which would be important to the question of the risk of reoffending. One of the problems with this is that I have no evidence that Mr Doudar would be prepared to engage with treatment. He was supposed to be doing that with Dr Nielssen pursuant to the good behaviour bond he received in 2016. 45 In the end, Mr Doudar does not really have anything to rely upon in terms of a subjective case except for his plea of guilty. He certainly does not claim to be remorseful. His prospects of rehabilitation are not positive. There can be little confidence that he will not re-offend."

Ground (1) - In assessing the objective gravity of the offence, his Honour erred in finding beyond reasonable doubt that: 1. there had been prior planning and arranging

The applicant submitted that before setting out those matters, which his Honour found to be pertinent to the objective seriousness of the offence, his Honour stated: "13 ... In assessing the objective seriousness of the offence in this case and Mr Doudar's moral culpability, I am satisfied beyond reasonable doubt of the following matters."
Included in those matters was the following observation: "17 Another submission on behalf of Mr Doudar was that the offence was "temporally very limited". That might be so in respect of what he did when he was at Highworth Avenue but it does not account for whatever was involved in prior planning and arranging. It can be inferred there was some such activity. It is also relevant to note that the principal offender, Nazlioglu, was assisted in evading justice for the period in which the police were unable to locate the vehicle. As it turned out, it was not found for another month."
The applicant noted that the Agreed Facts stated (at [13]) that: "At the time of loading the vehicle onto the tow truck, [the applicant] knew that the vehicle had been used by Nazlioglu as a getaway car following the shooting of the deceased Hawi."
The applicant submitted that there was no assertion of any prior knowledge, nor evidence from which it could be inferred. He submitted that the error in his Honour's reasoning was twofold. Firstly, there was no evidence that there had been prior planning or arranging by the applicant, let alone sufficient evidence as to permit such a finding beyond reasonable doubt, and secondly, even if an inference were available that there had been some planning (at least of the arrangements to collect the vehicle) the Agreed Facts did not permit the conclusion that the applicant was aware of the connection between the vehicle and the murder before his involvement in loading the vehicle onto the tow truck. The applicant submitted that any prior planning or arrangements could not therefore be treated as planning or arranging with respect to the offence.
The applicant submitted that this finding was significant in his Honour's reasoning in that it formed the basis for his Honour's conclusion that the offence was not "temporally very limited".

Consideration

In order to succeed on this ground, the applicant is required to establish that the impugned finding of fact was not reasonably open on the evidence. As Simpson J (with whom Meagher JA and Wilson J agreed) held in AB v R [2014] NSWCCA 339, this requires the identification of some error, either in the approach to the fact finding exercise or in the principles applied and it is not otherwise for an appellate court to substitute its own finding for that of the sentencing judge. Factual error may be demonstrated if there is no evidence to support a particular finding, if the evidence is all one way or if the judge has misdirected himself or herself (Biddle v R [2017] NSWCCA 128 at [73]).
The applicant challenges the finding that there had been prior planning and arranging. The applicant relied on the fact that the Agreed Facts only referred to the applicant's state of knowledge of the foundational offence and the principal's involvement at the time of loading the secondary getaway vehicle onto the tow truck. However, the portion of the Agreed Facts to which the applicant referred simply makes explicit the existence of the elements of the offence to which the applicant pleaded guilty. It does not, either in terms or taken together with the Agreed Facts as a whole, preclude a finding that the applicant was aware of the circumstances of the murder before the point in time when he was at Highworth Avenue and assisting in the disposal of the secondary getaway car secreted there.
As accepted by the applicant, the sentencing judge's reference to some degree of prior planning and arranging was considered by his Honour in the context of a general discussion about the applicant's temporal involvement. What his Honour was effectively doing in making the impugned finding was to point out that the events that took place at Highworth Avenue did not take place in a vacuum. Most particularly, it was not necessary for his Honour to infer from the Agreed Facts that the applicant went to that location with no idea of the details of the offence that had taken place or why he was going there specifically and only found out about those matters immediately before those acts were done.
The inference that there had been some such activity in terms of planning and arranging was open on the material available in the Agreed Facts. It is relevant that throughout the day on which the accessorial offence occurred, the applicant was in the company of the principal and they were coming and going from the applicant's home address (Agreed Facts [9]-[10], [15]). Moreover, as senior counsel for the applicant accepted in the court below, there was no doubt that the applicant was aware of the public execution given the high level of publicity which it had attracted.
That the applicant was aware of the offence at some stage before his act of loading the car onto the truck was an inference drawn from the Agreed Facts. No error has been shown in that finding. As the sentencing judge stated (Reasons [19]): "19 Mr Doudar was aware that the murder was well planned by his criminal associates. Murders like this do not happen by chance, opportunistically, or impulsively. They require the involvement of multiple people. Various plans, arrangements and surveillance are required. Pertinent to Mr Doudar's involvement, arrangements were needed for a secondary getaway car to be obtained, placed in position, temporarily stored and later disposed of."
The disposal of the secondary getaway car at the stage of the crime at which the applicant was involved occurred in circumstances that made it clear that this act was as deliberate and planned as the murder itself. Fully aware of the circumstances of the murder and having spent much of the day with the principal, (who was a close friend), the applicant, together with the principal, left his home that evening to arrive at Highworth Avenue where the applicant knew the secondary getaway car was concealed (Agreed Facts [13]). They evidently met with Mr Salami beforehand to arrive at the premises together in the tow truck.
In those circumstances, it was well open to the sentencing judge to find in the context of considering the objective seriousness of the offence that there was "prior planning and arranging involved".
Ground 1(a) should be dismissed.

Ground 1 - In assessing the objective gravity of the offence, his Honour erred in finding, beyond reasonable doubt:

(b) that Nazlioglu was assisted in evading justice for the period in which the police were unable to locate the vehicle

The applicant noted that the sentencing judge as part of his assessment of objective gravity, found (Reasons [17]) that Nazlioglu was assisted in evading justice for the period in which police were unable to locate the vehicle. The applicant submitted that this finding was significant as it went to the objective quality of the assistance provided. The applicant submitted that there was no evidence or suggestion that the movement from the premises of a private home to a public street in the Sydney metropolitan area did in fact materially assist Nazlioglu in evading justice. The applicant submitted that there was no evidence that the vehicle was likely to be discovered in its original location and as a result of leaving the vehicle in a public street, the reality was that not only were police able to recognise the vehicle, the vehicle still had within it a balaclava linked to the shooting.

Consideration

The effect of the applicant's submission is that the sentencing judge's findings reveal error because it could not be said that the principal was, in fact, materially assisted by the movement of the vehicle and the important evidence which it contained from a private garage to a public street. As already indicated, the question is whether it was open to the sentencing judge to find that the principal was assisted in evading justice for the one month in which the secondary getaway car was not located.
There was no necessary inference to be drawn that the storage of a getaway vehicle from a highly publicised murder in the garage of a nearby private residence for a sustained period of time would have been both a viable option and one that would have assisted the principal offender. The vehicle was parked in the same suburb in which the primary getaway vehicle was discarded and set on fire, a relatively short distance from the scene of the murder.
When the car was located, its registration plates had been removed and it was situated in front of a smash repair business. There can be little doubt that the intention of the offenders was that the car would not be located by authorities.
There was no indication of precisely how long police had been looking for the car but it could clearly be inferred that whatever vehicle that had been used as a secondary getaway vehicle would have been a matter of interest to the police and there would have been investigations into all circumstances that would have encompassed trying to find such a vehicle.
It is also important to note that it was the moving of the car that the applicant was specifically involved in, with the knowledge that it had been used in this offence and the only inference really available is that the vehicle was moved in order to assist in the principal evading justice effectively. Significantly, it was accepted by the applicant's representative in the sentence proceedings that this act, did as a matter of fact, assist the principal offender in evading justice for the period that the vehicle could not be located. In the proceedings on sentence (at AB 173.6) the following exchange took place: "HIS HONOUR: In this case I think it is accepted that the offender was aware of the murder and I take it that would encompass the fact that it was a public execution. BRADY: There is no doubt about that bearing in mind that it was at the very, very least publicised in the way it was that is why I'm saying for example that this is not at the bottom end and it then assisted to leading to the car being found not for a month."
Ground 1(b) has not been made out.

Ground 1 - In assessing the objective gravity of the offence, his Honour erred in finding, beyond reasonable doubt:

The applicant noted that the sentencing judge found that (Reasons [20]): "20 Mr Doudar was motivated to assist a vicious and cold-blooded murderer to evade justice. His morality was no better than the principal offender and the other(s) who were directly involved. His preparedness to assist Nazlioglu and others to evade justice demonstrated that he shared their arrogant and immoral belief that they had an entitlement to extinguish the life of another person."
The applicant submitted that there was insufficient evidence to permit this conclusion to be drawn beyond reasonable doubt. This was particularly so in circumstances where the sentencing judge had previously held that the applicant's motive was unclear.
The applicant submitted that as his Honour had correctly observed (Reasons [18]), the Agreed Facts did not permit any inference to be drawn as to why the applicant had become involved in the offence nor what he thought of the principal offence. The applicant submitted that this finding by his Honour must inevitably have had an impact on the sentence ultimately imposed and his Honour's finding that the applicant's "moral culpability was high".

Consideration

Having considered matters directed towards the assessment of objective seriousness, including the nature and circumstances of the foundational offence and the applicant's knowledge of it, the applicant's particular accessorial conduct, the existence of "some" planning, and that the applicant's personal motive could not be discerned, his Honour set out his finding as to moral culpability in the passage impugned by this Ground of Appeal.
The effect of the applicant's submission is that this finding as to moral culpability by his Honour was inconsistent with his earlier finding that the Agreed Facts did not reveal the applicant's personal motivation for committing the offence.
There is, however, a distinction between on the one hand, the applicant's personal motive for committing the offence and, on the other, his culpability based on his actions and the nature and extent of his knowledge. Irrespective of the applicant's individual motivation, such as personal gain or misplaced loyalty, in relation to which the sentencing judge expressly disavowed a finding, the fact that the applicant assisted in the way he did, with full knowledge of the broader context and reprehensible circumstances of the deceased's execution-style murder, was indicative of his subscription to the morality of those involved. The evidence before the sentencing judge was well capable of supporting such a finding and evaluation of the applicant's moral culpability.
The applicant with his knowledge of the heinous nature of the crime nevertheless acted to assist the principal to evade detection. His preparedness to do so clearly demonstrated a willingness to align himself with the principal and persons who would commit such a crime. It is not without significance that the actions of the applicant were not done in the immediate aftermath of the murder or in the heat of the moment but rather two days later. The applicant's choice to involve himself in providing assistance to someone who would commit such an offence is a matter which was clearly relevant to assessing the blameworthiness of the applicant's actions and therefore his moral culpability.
This ground of appeal has not been made out.

As was conceded by senior counsel for the applicant in the appeal, this ground has been largely overtaken by the matters raised in Ground of Appeal (5) and the reliance upon fresh evidence. It should also be noted that what was relied upon by the applicant in the sentence proceedings and in the bail proceedings was not that he was receiving suboptimal treatment and that the level of care was inappropriate as set out in the assumptions by Professor Woods in his report but rather, it was his anxiety condition which was based on his fears concerning the deterioration of his condition, which was the factor said to be making his time in custody more onerous.
The findings by the sentencing judge in the bail application and as made in these proceedings, were well open to him on the basis of the evidence which at that time was before him. There was nothing new raised in this ground of appeal which had not been raised in the earlier proceedings and specifically in the sentence hearing. What the sentencing judge rejected were the assumptions set out in Professor Woods' report which were not made out in either the bail application or in the sentence proceedings. As was noted in both of those proceedings, senior counsel appearing for the applicant had rejected any submission that the applicant was not receiving adequate treatment for his diabetic condition.
Consideration
The principles relevant to this ground of appeal are as follows:
Ill-health, including a prisoner's anxiety concerning their health, does not necessarily lead to the conclusion that the person's incarceration will be more onerous (Khoury v R [2014] NSWCCA 272 at [25]).
Generally, ill-health will only be a mitigating factor where the evidence establishes that there is a serious risk that the imprisonment will be a greater burden on the offender, by reason of that ill-health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health. Whether the offender is receiving appropriate treatment in custody is a relevant factor (Hunt v R [2019] NSWCCA 118 at [51]).
The complaint advanced in the applicant's submissions is that the sentencing judge erred in declining to accept Professor Woods' opinion that the applicant's illness made custody more onerous for him. That complaint needs to be considered against the background that the applicant's diagnosis of diabetes had been considered previously by the sentencing judge in the bail application. In that application, the applicant tendered a report from Dr Swaraj, dated 6 April 2020, and clinical notes from a Justice Health Diabetes educator. The Crown tendered a report from Dr Gary Nicholls, Clinical Director of Primary Care, Justice Health and Forensic Mental Health Network, dated 3 April 2020. Those persons gave evidence at the bail hearing.
The reasoning of the sentencing judge in the bail proceedings has been set out earlier in this judgment. The sentencing judge concluded that apart from certain inconsistencies in the applicant's evidence, his diabetes could be managed in a gaol setting and that there was no indication that the insulin medication Toujeo was required, as opposed to Lantus which was available to the applicant in custody. In relation to the diagnosis of type 1 diabetes, the evidence indicated that the applicant was going through a period of stabilisation and that there had been some improvement.
Senior counsel for the applicant in the sentencing proceedings stated consistently with the approach ultimately taken in the bail proceedings that it was not submitted that the applicant's diabetes could not be managed in custody. The following exchange between the sentencing judge and senior counsel for the applicant in the sentence proceedings makes that clear (at AB 176.10): "HIS HONOUR: Professor Woods makes a comment, and repeats it a number of times, that offender is receiving, "sub optimal" care. He based that upon something said in material that is five months old. He seems to assume that that indicated sub optimal care at that time and that it has continued. You are not pressing that notion, I take it? BRADY: No, I am not, your Honour. HIS HONOUR: My preliminary assessment, and I stress that it is preliminary, is that subjectively Mr Doudar does have some anxiety and stress about his condition in custody, but I tend to the view that I have alluded to in the bail judgment, that the care he is receiving, which was I think largely accepted, was reasonable in the circumstances. BRADY: I am not pressing that it is not. I am indicating the onerousness associated with anxiety with the new condition and your Honour might be thinking back to the bail application. It was not saying it cannot happen."
The sentencing judge had concerns about the source material on which Professor Woods' opinion was based being first the applicant's reports of his experience in custody and second, the documentary material that caused Professor Woods to misapprehend that the care received by the applicant in custody was "suboptimal".
It was uncontroversial for the sentencing judge to give little weight to the applicant's untested statements as recounted by an expert (R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353). The applicant did not give evidence on sentence. As the sentencing judge observed when the issue was ventilated in the bail proceedings, the applicant's complaints concerning his custodial conditions were qualified to a significant extent by evidence adduced by the Crown.
Having rejected the proposition espoused by Professor Woods that the applicant's care was suboptimal, the sentencing judge acknowledged the distress and lifestyle adjustments resulting from the applicant's diagnosis of Type 1 diabetes. His Honour noted that the applicant's complaints were consistent with the challenges of the applicant's diagnosis of diabetes generally. These would be a problem whether he was incarcerated or not. His Honour found that these factors did not compel a conclusion that the applicant's custodial conditions were more arduous. That finding was open.
With regard to the second source of evidence relied upon by Professor Woods, the medical documentation provided to him plainly created a misapprehension about the quality of the applicant's care in custody. This had been expressly disavowed by senior counsel on sentence. Moreover, Professor Woods was not qualified to express opinions about the appropriate level of care. It follows that the sentence judge's evaluation of the applicant's reports of elevated anxiety concerning his diabetes and whether that rendered his experience of custody more burdensome, properly took into account the adequacy of his treatment.
In the light of the unsound underpinnings of Professor Woods' opinion, and as a result of the proper concession by senior counsel for the applicant appearing on sentence it was well open for the sentencing judge to find that the evidence was not sufficient to support a finding that the applicant would be subject to more onerous custodial conditions as a consequence of his diabetes diagnosis.
Ground 2 should be dismissed.

Ground (3) - his Honour erred in failing to take into account the effects of the COVID-19 pandemic because there was no evidence as to the effect the restrictions had upon the applicant.

The applicant submitted that this Court has already considered the effects of the additional restrictions as a result of the COVID-19 pandemic. On that issue, the applicant referred to the decision of Moodie v R [2020] NSWCCA 160 at [144] where Bell P said: "144 Also relevant is the impact of the COVID-19 crisis on the conditions of incarceration and the suspension of opportunities for family visits and contact in at least the last three month period. This is a matter that has been and, in my opinion, should be taken into account on sentencing ... However, this should not be overstated or necessarily extrapolated, given the fluid nature of distancing restrictions and the current cautious confidence in New South Wales as to control of the pandemic and the concomitant gradual relaxation of emergency restrictions on social movement."
The applicant submitted that these additional restrictions were matters common to all inmates and it could readily be inferred that they impact negatively upon the nature of their custody. The applicant submitted that the restrictions on visits has had a direct impact upon him given that he is married and has a young child. On that issue, Professor Woods noted in his report that the applicant's wife was particularly concerned for the wellbeing of their child because there had only been "very minimal contact".
The applicant submitted that the effect upon him could readily be inferred from the nature of the additional restrictions and that there was also evidence directly on point. The applicant submitted that the onerous nature of the additional restrictions should also be viewed against the length of the sentence which had been imposed on him. The applicant submitted that the amount of time between the period spent on remand and his earliest release date was comparatively brief, being approximately 15 months. The applicant submitted that in those circumstances, the restrictions had already had an impact upon him for a known period of time and were likely to have an impact upon him for a substantial period of his remaining time in custody. To so conclude did not involve speculation or the making of assumptions. The applicant submitted that the sentencing judge had erred in failing to take into account the effects of the current health pandemic as a mitigating factor.

Consideration

The COVID-19 pandemic and its implications for the conditions of incarceration are matters that may and often should be taken into account on sentence: Scott v R [2020] NSWCCA 81 at [166]; McKinnon v R [2020] NSWCCA 106 at [32].
Contrary to the situation in Scott v R, there was no evidence as to any particular impact of the COVID-19 pandemic on the applicant. The applicant relies upon decisions of this Court which refer to the suspension of in person visits. As the applicant appears to accept, the sentencing judge did take judicial notice of the restrictions in place for contacting family and friends and the reduction in rehabilitative programs. The applicant's concern for his wife and son, expressed through the psychologist's report, was of a general nature and not directed to the COVID-19 pandemic. It did not oblige the sentencing judge to expand upon his observations of the effect that the pandemic was known to have on the conditions of custody for prisoners generally.
As the sentencing judge made clear, in the absence of evidence concerning the applicant's particular case, he properly took into account the well known impacts of COVID-19 on the custodial environment. His Honour was not required to do anything further.
Ground 3 has not been made out.

Ground (4) - his Honour erred in finding that the applicant did not really have anything to rely upon in terms of a subjective case except for his plea of guilty.

The applicant noted that the sentencing judge, having considered the evidence tendered on behalf of the applicant, ultimately concluded that "in the end Mr Doudar does not really have anything to rely upon in terms of a subjective case except for his plea of guilty". The applicant submitted that it was erroneous for his Honour to find that there was not "anything" upon which the applicant could rely in terms of a subjective case. Apart from anything else, the applicant submitted that he had a wife and three year old son from whom he was separated as a result of his incarceration. The applicant submitted that in addition his custody was affected by restrictions resulting from the COVID-19 pandemic. The applicant submitted that the diagnosis of Type 1 diabetes was a significant part of his subjective case and should have been taken into account.
The applicant submitted that it should also be taken into account that Professor Woods expressed the following opinion in his Psychological Report (at p9): "Valdespino et al (2017) in a review of relevant research identified that Alexithymia is associated with a number of psychiatric and mental disorders, and negatively impacts on Executive Functioning. Further highlighted is the relationship between Alexithymia and the functional role of insulin as it relates to inner effective experience awareness. The relevance of Mr Doudar's ongoing treatment needs and prospect of rehabilitation are well illustrated by Chatzi et al (2009) who examined the "relationship between type 1 diabetes and Alexithymia and highlights deficits in thinking style (i.e. inclusive of Executive Functioning). The research highlights the need for effective glycaemic control and hence the rehabilitative importance of Mr Doudar obtaining optimal treatment for his type 1 diabetes."
The applicant submitted that without repeating what had been set out in relation to Ground 2, the evidence established that his blood sugar levels had been erratic since his diagnosis. The applicant submitted that this is a matter which had the capacity to impact upon the applicant's prospects of rehabilitation and therefore, was a matter which formed part of his subjective case and importantly, was relevant to the length of any sentence and how it might be structured.
Professor Woods also opined that the applicant's mental state would make his time in custody more onerous (at pp10-11): "A further feature of Mr Doudar's NEO clinical profile is that of his T-score (57) on the Facet of Neuroticism. According to the NEO interpretive manual, individuals scoring in the same range as Mr Doudar are at moderately high risk of experiencing negative emotions and episodes of psychological distress. The relevance to Mr Doudar being that he will likely experience a greater level of subjective isolation and emotional distress than that commonly found with the general inmate population. He may also experience a great deal of difficulty in advising correctional staff of diabetes related symptoms, thus causing his health to be at greater risk."
The applicant submitted that this opinion went unchallenged by the Crown and thus formed part of the applicant's subjective case.
The applicant submitted that the history given to Professor Woods confirmed that the applicant had plans for resuming employment upon his release (p5): "Review of Mr Doudar's employment history revealed it was not until 2014/15 when he in partnership with (but primarily under the guidance and supervision of) his sibling, Ginan, was able to establish stable employment in the area of furniture removal. It is Mr Doudar's plan/hope to resume working in partnership with his sister upon release from custody."
The applicant submitted that the availability of family support was a protective factor and the separation from his son at such a young age was likely to operate as a significant, personal detriment.
The applicant submitted that his incarceration was having a deleterious effect upon his wife and child. To support that proposition, the applicant relied upon the notation of Professor Woods at p6: "During tele-consultation with Mrs Doudar she reported to finding it increasingly difficult to cope with her a) social and emotional isolation (note: she has no family of birth [sic] support in Australia or close circle of friends), b) struggling financial situation, and c) fear for her son's wellbeing in circumstances of her husband being in custody and with only very minimal contact."
The applicant submitted that while such matters might not come within the narrow principles adopted in R v Edwards (1990) 90 A Crim R 510, nonetheless they were matters which could be taken into account as "part of the mix" (R v Girard, Andrew John; R v Girard, Tessa Maree [2004] NSWCCA 170 at [21] per Hodgson JA). The applicant submitted that these circumstances formed part of his subjective case along with the restrictions to which he was subject as a result of the current pandemic so that in all the circumstances, the sentencing judge erred in finding that the applicant did not have anything upon which he could rely in terms of a subjective case.

Consideration

As can be seen, the applicant's contention is that the sentencing judge erred in finding that he did not "really have anything to rely upon in terms of a subjective case except for his plea of guilty" and pointed to various aspects of his case on sentence which were said to undercut that finding.
An evaluative finding as to the applicant's subjective case is one with which this Court would be slow to intervene. As the High Court observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] (after noting the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW)), the authority for an appellate court to intervene is dependent on the demonstration of error. The Court went on to restate the types of patent error set out in House v The King (1936) 55 CLR 499; [1936] HCA 40, namely when a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration (at [42]). The test is not whether any particular matter has the "capacity" to impact upon an assessment of the applicant's subjective case.
The applicant relies upon the fact that he has a wife and three year old son, his Type 1 diabetes diagnosis and the restrictions imposed by COVID-19 pandemic. The sentencing judge had regard to each of those features in his reasons. As the applicant appears to accept, the sentencing judge regarded the applicant's health condition as a "significant" feature of his subjective case. The fact that the applicant was married with a three year old son was taken into account (Reasons [36]). As advanced under Ground 3, the sentencing judge had regard to the impact of the COVID-19 pandemic on custodial conditions. Accordingly, this is not a matter where the sentencing judge failed to have regard to any material aspect of the applicant's case or mistook the facts.
In concluding that the applicant did not "really" have anything to rely upon in terms of a subjective case, the sentencing judge was referring to the notable absence of subjective features that commonly afford an offender leniency on sentence. His Honour stated (at Reasons [45]): "45 In the end, [the applicant] does not really have anything to rely upon in terms of a subjective case except for his plea of guilty. He certainly does not claim to be remorseful. His prospects of rehabilitation are not positive. There can be little confidence that he will not re-offend."
The applicant did not challenge these findings. Having considered the impact of the applicant's diabetes and COVID-19 on his experience of custody, there was no error in the sentencing judge considering that, but for the applicant's plea of guilty, there was little in his subjective case that carried any significant mitigatory force on sentence.
No error having been established, this ground has not been made out.

the standard of care available to the applicant in custody with respect to the treatment of his diabetes;
the extent to which that condition had stabilised; and
the applicant's levels of anxiety and stress as a result of that condition.
The applicant submitted that between the date of sentence being imposed and the hearing of this appeal, there was a significant change of circumstances insofar as his health is concerned.
The applicant submitted that on 12 October 2020, he experienced a further hypoglycaemic event, which necessitated his urgent hospitalisation. This commenced on 12 October 2020 and extended over three days.
The following is noted on p3 of the Justice Health notes created on 12 October 2020: "JH staff called for medical response to C wing, patient rousable by voice only. Freestyle Libre Graph shows patient was hypoglycaemic overnight continuously under 3mmol from 12am-6am. Patient Fakhriddine alerted CSNSW to this and medical response was called. On arrival, patient rousable by voice only, confused and unsure of time, person or place. Patient appears agitated, incontinent of faeces, faeces also smeared on hands."
It was also observed that the applicant's Glasgow Coma Scale was 11 at the time and decreased to 9 within minutes. The applicant submitted that the fact that he had been in a hypoglycaemic state for so long demonstrated an absence of mechanisms to ensure his wellbeing, particularly overnight. The applicant submitted that his presentation, as illustrated by his confusion and incontinence, demonstrated the physical impact that lack of monitoring had on him.
The applicant also relied upon a note created by Dr Linda Mayer on 21 October 2020 wherein she stated: "This patient has recently been to hospital for hypoglycemia- iatrogenic. In this context I feel very relieved/lucky that I requested his BSL's and did not re-write telephone orders that were originally sent to me as he would have likely had another hypo[.] I note that he is delivering quite low BSL's POST midday lunch which is a worry. I also note that glucagon was required on one of these times. In this context, the hospital discharge report suggested his Lantus be possibly lowered further to 20U which is what I have done at this re write. I see that he has a local specialist telehealth consult on 6/11/20 that he should not miss[.] I also read in the discharge ROI that he has some significant concerns that were listed for follow up. Please could this patient be alerted to staff at hand over [so] that he does not fall through the cracks."
Apart from those entries in the applicant's medical records, no expert opinion was obtained by either the applicant or the respondent in relation to these developments. All that was placed before the court were the notes which have been set out above.
The applicant relied upon the following statement of principle from in Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 at [66] per Beech-Jones J (Hoeben CJ at CL and Hamill J agreeing) where his Honour gave three examples of when fresh evidence relating to an applicant's medical history might be admissible on appeal: "66 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)."
The applicant submitted that he fell squarely within the third example proffered in Turkmani's case and arguably within the second example.
The applicant submitted that notwithstanding the learned sentencing judge's comment that "it may well be that the situation has stabilised to some extent at least" it is plain that his blood sugar levels remain erratic. He submitted that although more than eight months had passed since he was first diagnosed with Type 1 diabetes, no management regime had been able to be put in place which might control his at times very high and very low blood sugar levels.
The applicant submitted that this demonstrated that his level of care was not adequate. He submitted that it was particularly concerning that he risked suffering a further hypoglycaemic event (almost immediately after his discharge from hospital) because the "telephone orders" were inappropriate. The applicant submitted that this emerged from the note made by Dr Mayer on 21 October 2020. The applicant submitted that it was only because of the diligence of Dr Mayer that inappropriate care was not continued, thereby risking his health.
The applicant submitted that although the diabetic charts revealed a fairly regular pattern of low BSLs after lunch, it would appear that no change in his management regime was introduced until after his hospitalisation and thus his review by external specialists.
The applicant submitted that in the same context, one of the recommendations on discharge from hospital on 15 October 2020 was that his BSLs should be measured "4 times a day and early morning'" (p. 2 of 6 of Discharge Referral). The applicant submitted that apparently from the records for 8 and 9 November 2020, the monitoring frequency had not, in fact, increased. The applicant submitted that despite Dr Mayer's concerns about his BSLs after lunch, his levels were not measured after lunch on that particular day.
The applicant submitted that the lack of appropriate management, particularly for a person recently diagnosed with the illness, who therefore did not have a stable treatment regime in place, was evident from the history in his medical reviews. The applicant drew the Court's attention to the contents of some of those reviews as set out in Justice Health records.
On 5 July 2020, prior to sentence, a note from Justice Health records stated: "Staff called for pt multiple times to attend the clinic for BGL and insulin administration pt refused to attend clinic. Staff attended to insulin in pod, Pt expressed his disappointment and frustration with Justice Health stated his BGLs have been consistently high for 2 months and is frustrated waiting for follow r/v with endocrinologist. Pt stated that he would like to get a insulin pump. Referral was made for endocrinologist by DR Mary Foley on the 25/6."
On 10 July 2020, another note from Justice Health stated: "On Lantus 24 units nocte & sliding scale NovoRapid. Fasting BSLs always high in mornings = 18.7 today, have been up to 26. Otherwise BSLs good before lunch & dinner. Denies eating during night. No food after goes to sleep - 8pm. Wakes at ~ 4am when BSL is between 4-9 (pt. has Libre system), then BSL climbs despite not eating till breakfast. Was s/b JHH Diabetes Clinic on 20.5.20 - Lantus increased from 22 to 24 units due to consistently high mane BSLs, but patient says this did nothing to improve his BSLs. Also s/b JH Diabetes Educator "Minh" on 22.5.20 tele-health. Increase Lantus to 28 units. R/v again if mane fasting BSLs not improve. - ? when due to have f/u in Diabetes Clinic ( 2nd page of letter missing? - need to chase up? ). Is on wait list for r/v."
Over a month later, on 14 August 2020, the applicant was seen in the Justice Health clinic and the following is recorded: "pt seen in clinic for BGL and insulin BGL elevated 17.0mmol/L"
Because the applicant had developed a wound at the site of his monitoring device, as was also observed during the visit to the clinic on 14 August 2020, further observations were made in the clinic the next day. The following was noted: "Pt seen in clinic for BGL and insulin. BGL 18.1mmol/L. ROAMS contacted for management of ?infected sensor site. GP advised to send pt to local hospital for management on background of high BSLs and ? infection. FM advised of same - pt held in clinic awaiting transport to Cessnock Hospital."
The applicant submitted that notwithstanding the recommendation that the cause of the applicant's BSLs be investigated, no such investigation took place at such time. While the applicant was transferred to hospital, the treatment only related to the infected site.
On 17 August 2020, the applicant saw Dr Foley again in the clinic. The following is recorded in the Justice Health notes: "Patient seen in clinic this pm, for diabetic review with Dr Foley. Patient has been having consistently high BSL of a morning, Patient states when he wakes at 430 his BSL is normal and by 0900 hours it ranges between 12-18mmol/l.. Evening lantus dosed increased to 32 units As per Dr Foley."
The applicant submitted that these notes demonstrated that despite a referral to an endocrinologist having been made on 25 June 2020, and despite the recommendation by the ROAMS (Remote Off-Site and Afterhours Medical Services) physician on 14 August that the cause of the applicant's fluctuating blood sugar level be further investigated at a hospital (and therefore presumably with the input of an endocrinologist), the only follow-up was with a general practitioner, Dr Foley. The applicant noted that these recommendations were made against a background of concerns expressed by him that the medication was not settling his blood sugar levels and consistently documented fluctuations. The applicant submitted that it was only when he suffered the hypoglycaemic event on 12 October 2020, some three and a half months after the referral by Dr Foley, that he had his case considered by an endocrinologist. He submitted that it was only upon discharge that the consultation with an endocrinologist was scheduled, namely for 6 November.
The applicant noted that during the period leading up to the hypoglycaemic episode, the dose of Lantus had consistently been increased, even though he had stated that his blood sugar levels had not improved, which appeared to be supported by the diabetic charts. The applicant submitted that an increase in the level of Lantus seems not to have been medically indicated. The applicant noted that on p2 of the Discharge Referral, it was recorded "Discussed with Endocrinology team in JHH who advised reduction of Lantus down to 25 units and early morning BGL check". The applicant noted that this recommendation formed part of the release plan. That dose was further reduced by Dr Mayer who thought a dose of 20 units was appropriate.
The applicant submitted that an examination of those documents established that despite the understanding of the parties that he was not receiving "suboptimal treatment", subsequent events do not support this. The applicant submitted that lack of monitoring had a direct physical impact upon him.
The applicant further submitted that he had now been hospitalised for life-threatening events on two occasions and that, despite the passage of some eight months, his blood sugar levels have remained poorly regulated. The applicant submitted that as a result, the Court would readily infer that his condition causes him significant anxiety.
The applicant further submitted that in the above circumstances, the fresh evidence was admissible and demonstrated that the nature of his incarceration was more onerous for him than for other inmates.

Consideration

The respondent submitted that the summary of principles applying to fresh evidence was comprehensively set out by Simpson J (with whom Davies J and Grove AJ agreed) in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [102]: "102 The questions to which the proposed fresh evidence are directed concern the level of the applicant's intellectual functioning, and his mental and/or psychological condition. There was no such evidence provided to the sentencing judge. ... … The principles applicable to the tender of fresh evidence in applications for leave to appeal against sentence 104 The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. 105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. 106 I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake , per Kirby J, at [63]. 107 "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. 108 If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham . 109 It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both criteria. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: "6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. 111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra). 112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing. 113 Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217. 114 Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13. 115 Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1. 116 In Abbott , one relevant consideration was that the applicant had been incompetently represented, with the result that evidence that could have been available as to her psychiatric condition was not presented. Similar arguments were, on the facts, rejected in R v Goodwin (1990) 51 A Crim R 328 and Stumbles . 117 Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham , it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg, Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton , Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed. 118 One question which has arisen, but not, so far as I am aware, finally decided, concerns the proper identification of the evidence that is said to have been unavailable, or not presented, at the time of sentencing. That was expressed by Basten JA in Einfeld in the following way: "45 Whether the relevant 'event or circumstance' is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV). ... 50 ... there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently.""
The respondent submitted that when those principles were applied, the evidence concerning the applicant's hypoglycaemic incident on 12 October 2020 should not be admitted as "fresh" evidence on the appeal.
The sentencing judge referred in his reasons to the applicant's diagnosis with Type 1 diabetes in March 2020 which occurred in the context of a life threatening event and significant distress. His Honour referred to his conclusion on the earlier bail release application that the applicant was receiving appropriate care and that, in some respects, this included closer monitoring and supervision of his condition than a person might expect to receive in the community (Reasons [38]). His Honour noted that it was accepted that the applicant was being adequately treated (Reasons [40]). His Honour further noted the passage of five months since his finding on the bail application that the applicant's diagnosis had caused an elevated sense of anxiety and stress and stated that "it may well be that the situation has stabilised, to some extent at least" (Reasons [41]). This was a reference to the circumstances surrounding the applicant's diagnosis.
In order to ascertain the standard of care which the sentencing judge understood was available to the applicant at the time of sentence, it is necessary to consider the reports relied on in the bail proceedings and the oral evidence given. This material is annexed to the affidavit of Emma Phillips, dated 24 November 2020 (Phillips).
Dr Gary Nicholls, Clinical Director, Primary Care Justice Health and Forensic Mental Health Network gave the following evidence: 1. Diabetic patients are often in a two-out cell so that someone can assist them if they become unwell. 2. Diabetic patients are often given extra to food to keep in case they feel they are getting low sugar readings. 3. If a patient's blood sugar becomes low overnight, the patient can "knock up" and if unwell could be taken to hospital or an ambulance called. 4. If there is a spike in blood sugar levels after 10pm, there is an after-hours nurse manager available "24/7", and an on-call registrar who can be contacted for advice. If the patient is very unwell an ambulance can be called or the patient taken to hospital. 5. It can be a difficulty for a diabetic who would normally keep a glucometer themselves in the community not to have access to a glucometer after hours. Glucose testing is usually done at the clinic because it requires needles. 6. Some patients have been provided with a patch, a little like a nicotine patch, that takes readings of sugars for a 24 hour period and feeds back the results to a device, but that was not something being used by the applicant at the time.
Ground 5 asserts that the understanding which the sentencing judge formed of the standard of care available to the applicant on the basis of this fresh evidence involved a misapprehension and was imperfectly understood.
The proposed additional evidence, some of which encompasses the period before the proceedings on sentence on 9 September 2020, is annexed to the affidavit of Mohammad Chahine dated 18 November 2020 ("Chahine"). Some supplementary records are also annexed to Ms Phillips' affidavit. The material includes: 1. The applicant now has a Freestyle Libre device that allows him to monitor his blood sugar levels overnight. The device is referred to in notes on 10 July (Chahine 21), 30 July (Phillips 8), 16 August (Chahine 26), 17 August (Phillips 18), 24 September (Phillips 21), 2 October (Phillips 23), 12 October (Phillips 12) and at Chahine 29. 2. The applicant has access to food overnight if his blood sugar is low. This is referred to in the notes of 24 September (Phillips 21). 3. The applicant has had regular reviews by a GP, where his blood sugar levels were discussed, and his insulin dose adjusted where necessary. This occurred on 10 July (Chahine 21), 17 August (Chahine 27), 24 September (Phillips 21), 21 October (Chahine 2) and 30 October (Phillips 41). 4. The applicant has raised concerns with the doctors and nurses about having high blood sugar levels, particularly in the mornings. This occurred on 5 July 2020 (Chahine 20), 10 July (Chahine 21) and 17 August (Chahine 27). 5. The applicant's dose of long-acting insulin (Lantus) was increased in order to address his high morning blood sugar levels. This occurred on 10 July (Chahine 21) and 17 August (Chahine 27, Phillips 18). 6. The evidence does not establish that the applicant was displaying low blood sugar levels in the mornings in the period before the incident on 12 October. Indeed, the applicant told the doctor that he was not having "hypos" at night on 17 August (Phillips 18) and 24 September (Phillips 21). 7. The applicant had a six month follow up telehealth consultation with a specialist booked with the hospital for 6 November 2020 (Chahine 2, 11).
The applicant places significant reliance on the incident of 12 October 2020, when he had a hypoglycaemic episode overnight, was in an unresponsive state in his cell and subsequently taken to hospital because his condition did not improve as quickly as expected. In relation to this episode it is noted that: 1. A fellow prisoner (but not his cellmate) notified Corrective Services of his condition (Chahine 14). 2. Justice Health staff attended, and an ambulance was called (Chahine 14). 3. Justice Health staff administered Glucagon and the applicant's blood sugar level increased, though his level of consciousness did not, and he was therefore taken to hospital (Chahine 14). 4. The Justice Health nursing staff advocated on the applicant's behalf when the paramedics told him to "stop acting", advising them that the applicant's condition was not normal for him and ensuring that he was transferred to hospital (Phillips 27).
On the basis of what can be gleaned from the applicant's Justice Health records alone, it cannot be concluded that the standard of care available to the applicant is different to what the sentencing judge had understood from the evidence at the bail hearing. Specifically, I am not prepared to find that the monitoring of the applicant's blood sugar levels has been inadequate and that the decisions made by doctors in managing his diabetes have not been appropriate in the circumstances, or that the degree of control of the applicant's blood sugar levels sheds any light on the quality of his care.
Although a considerable number of documents were placed before this Court as to observations made of the applicant at different times, there was no specialist medical opinion directed to those documents to enable the Court to make an informed decision other than that which could be taken from the documents themselves, i.e., their ordinary meaning but without the benefit of specialist medical opinion.
Based on the specialist medical opinion placed before the court in the bail proceedings and in the sentence proceedings, it is apparent that inherent in Type 1 diabetes is that blood sugar levels fluctuate and that is why it is so difficult to treat. Treatment is not directed at removing the problem but managing it. The danger ever present with Type 1 diabetes is that there will be quite unpredictably a hypoglycaemic event. What is apparent from the Justice Health notes is that considerable efforts were made to not only stabilise his blood sugar levels but to deal with other problems which emerged. This is not a situation of benign neglect. Rather, it shows positive and repetitive efforts to deal with the applicant's Type 1 diabetes condition and its inevitable fluctuations. It follows, therefore, that the applicant has not established that he was not receiving adequate medical care nor that the sentencing judge was under a misapprehension as to his state of health in the sentence proceedings.
The records demonstrate an appropriate level of care for the applicant's general health. When the applicant developed an area of inflammation and possible infection where the sensor was located on his arm, the inflammation was noted and monitored, and in due course a GP was contacted and the applicant was transferred to hospital for management of that condition (Chahine 23-24). The notes of 21 October 2020 (Chahine 2, relied on by the applicant) demonstrate that the doctor treating the applicant was taking appropriate care of him.
In those circumstances, the applicant has not established that evidence regarding the ongoing treatment of the applicant's diabetes in custody should be admitted as fresh evidence on the appeal and it has not been established that a miscarriage of justice has occurred.
Ground of appeal 5 has not been made out and should be dismissed.

Orders 1. Leave to rely upon the fresh evidence relating to the applicant's treatment following the sentence hearing is refused. 2. Leave to appeal against sentence is allowed but the appeal is dismissed.

BELLEW J: I agree with Hoeben CJ at CL.
WRIGHT J: I agree with Hoeben CJ at CL.

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