GAR v R

Court of Criminal Appeal (NSW)|2021-08-09|Before: Macfarlan JA, Hulme J, Wright J, MacFarlan JA

iction: Criminal Date of Decision: 04 December 2003 Before: Hock DCJ File Number(s): 2002/00013923

Judgment

MACFARLAN JA: I agree with Wright J.
R A HULME J: I agree with Wright J.
WRIGHT J: The applicant in this matter seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Hock DCJ in the District Court on 4 December 2003 in respect of his conviction of armed robbery with wounding. That offence took place at the Criterion Hotel in Sydney on 15 May 2000.

Background

It is useful to review certain events leading up to the imposition of the sentence in question to understand the context in which that sentence was imposed.
In the period March to July 1988, the applicant committed armed robberies and related offences as follows: 1. an armed robbery at the premises of Yakka Industrial Wear on 17 March 1988; 2. an armed robbery at the premises of Berkley Sports and Social Club on 10 April 1988; and 3. an armed robbery, as well as three offences of detain for advantage and one offence of take conveyance without the consent of the owner, in Queanbeyan on 11 July 1988.
On 1 November 1989 a jury found the applicant guilty of the Yakka and Berkley robberies. He was later sentenced by Phelan DCJ to imprisonment for 13 years and 4 months commencing on 27 August 1988 and expiring on 26 December 2001, with a non-parole period of 10 years expiring on 26 August 1998.
Although the applicant was charged in 1988 in relation to the Queanbeyan offences, in March 1992 the Director of Public Prosecutions directed that there be no further proceedings on those charges. The applicant's co-offender, Mark Anthony Davis, was, however, charged, convicted and on 28 August 1989 sentenced to imprisonment by Pain DCJ for numerous offences relating to that episode. For the reasons given below at [23]-[24], it is not necessary in this judgment to refer to further details of Mr Davis' sentence.
On 15 May 2000, while on parole in respect of the sentences for the Yakka and Berkley robberies, the applicant committed the Criterion Hotel robbery. His parole in respect of the Yakka and Berkley robberies was subsequently revoked on 30 October 2000.
On 13 January 2002, the applicant engaged in other offending including sexual intercourse without consent, for which he was sentenced by Naughton QC DCJ on 10 December 2002 to imprisonment for 6 years commencing on 5 April 2002 and expiring on 4 April 2008.
In June 2002, the Director changed position in relation to the Queanbeyan offences and the applicant was recharged. In addition, on 24 June 2002 the applicant was charged with the Criterion Hotel robbery.
The applicant was eventually convicted on 11 June 2003 of the Queanbeyan offences and on 12 September 2003 of the Criterion Hotel robbery, at the close of separate jury trials presided over by Hock DCJ. Her Honour then heard both matters together on sentence on 21 November 2003, and sentences were imposed on 4 December 2003 in respect of all offences related to those incidents as set out in the table below. Count Offence Sentence Criterion Hotel robbery 1 Armed robbery with wounding contrary to s 98 of the Crimes Act 1900 (NSW), for which the maximum penalty is 25 years' imprisonment. 17 years commencing on 5 October 2010 and expiring on 4 October 2027, with a non-parole period of 10 years and 7 months commencing on 5 October 2010 and expiring on 4 May 2021. Queanbeyan offences 1 Armed robbery contrary to s 97(1) of the Crimes Act, for which the maximum penalty is 20 years' imprisonment. 12 years commencing on 5 October 2007 and expiring on 4 October 2019, with a non-parole period of 9 years commencing on 5 October 2007 and expiring on 4 October 2016. 2 Detain for advantage contrary to s 90A (now repealed) of the Crimes Act, for which the maximum penalty was 14 years' imprisonment. 6 years commencing on 5 October 2005 and expiring on 4 October 2011. 3 Detain for advantage contrary to s 90A (now repealed) of the Crimes Act, for which the maximum penalty was 14 years' imprisonment. 5 years commencing on 5 October 2006 and expiring on 4 October 2011. 4 Detain for advantage contrary to s 90A (now repealed) of the Crimes Act, for which the maximum penalty was 14 years' imprisonment. 5 years commencing on 5 October 2006 and expiring on 4 October 2011. 5 Take conveyance without consent of owner contrary to s 154A of the Crimes Act, for which the maximum penalty is 5 years' imprisonment. 1 year commencing on 5 October 2005 and expiring on 4 October 2006.

The sentences relating to the Queanbeyan offences have all expired (as can be seen from the table) and the applicant does not seek leave to appeal in respect of those sentences. The application for leave to appeal was expressly stated to relate only to the sentence for the Criterion Hotel robbery, which does not expire until 4 October 2027. The non-parole period for that offence expired, however, on 4 May 2021.
In structuring the sentences for the Queanbeyan offences, her Honour said: "There is considerable overlap in the criminality of all five [of the Queanbeyan offences]. … [T]hat I have not punished the offender twice … will be evident from the way in which I have structured the sentences." [1]
In respect of the overall structure of the sentences for the Criterion Hotel robbery and the Queanbeyan offences, her Honour said: "I have fixed the appropriate sentence for each offence and then considered questions of cumulation or concurrence and the principle of totality, not only in respect of the sentences I am to impose but also having regard to the sentence [the applicant] is currently serving [that is, the sentence imposed by Naughton QC DCJ on 10 December 2002 for sexual intercourse without consent]. I note that the non-parole period set by his Honour Judge Naughton expires on 4 October 2006. I have commenced the first sentence on 5 October 2005, that is, going back one year. In my view, the sentence for the Criterion armed robbery should be served partly concurrently and partly consecutively with the sentences for the Queanbeyan matters and will commence after five years has elapsed." [2]
The overall effect of the sentences in the table above is equivalent to a head sentence of 22 years with a non-parole period of 15 years and 7 months. They also result in an effective balance of term exceeding one third of the effective non-parole period. It can be noted that her Honour made a finding of special circumstances on account of the partial accumulation of sentences, for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act).

Application for leave to appeal and grounds of appeal

The present application for leave to appeal was filed on 31 March 2021. Notably, in the covering letter to the Registrar enclosing the application, the applicant specified that: "… the only matter that is sought to be appealed with regard to this application is the severity of the sentence for Armed Robbery of the Criterion Hotel in May 2000."
The sentence for the Criterion Hotel robbery was imposed in December 2003, and thus the application for leave to appeal was filed more than 17 years after the sentence was imposed. It was not in dispute that the applicant required an extension of time in which to file his leave application. The question of the extension of time is considered below.
The application of 31 March 2021 included a statement of grounds for appeal in the following terms: "1. The sentence in all attendant circumstances was manifestly excessive." "The sentence" in that ground of appeal is, as I understand it in light of the abovementioned portion of the applicant's cover letter, a reference to the sentence for the Criterion Hotel robbery.
Although that is the sole ground set out in the statement of grounds for appeal, a further ground relating to fresh evidence concerning the applicant's being diagnosed with cirrhosis of the liver was effectively put forward by the applicant in his written short submissions filed with the notice of application and statement of grounds on 31 March 2021. Another ground of appeal relating to the effect of the COVID-19 pandemic on the applicant's prospects of release to parole was raised in his submissions and evidence. The Crown addressed these grounds in its written and oral submissions and, presumably in light of the fact that the applicant was unrepresented, did not take any point that these further grounds were not set out in the statement of grounds of appeal.
Accordingly, the proposed grounds of appeal effectively relied upon can be summarised as follows: 1. the sentence in all attendant circumstances was manifestly excessive; 2. there is fresh evidence of a diagnosis of cirrhosis of the liver which would have impacted the severity of "the total sentence" if it had been known at the time of sentencing; and 3. there is fresh evidence concerning the applicant's inability to be granted parole on account of the COVID-19 pandemic, which would have been relevant to the structuring of the sentence if it had been known at the time of sentencing.
Although the second ground of appeal referred to "the total sentence", this ground should be understood as relating only to the sentence for the Criterion Hotel robbery. As has been noted above, the other sentences have expired and, during the hearing, the applicant indicated in effect, as I understood him, that he did not intend to challenge more than the Criterion Hotel sentence. [3]
Finally, it can be noted that in another document filed by the applicant, which apparently consisted of numbered pages 11 to 13 from an earlier document with p 11 commencing "In respect of the sentences her Honour", the applicant made reference to an additional question in the following terms: "The question also arises as to parity with Tony Davis (Mark Anthony Davis) sentenced by Judge Pain on 28 August 1989. … The applicant has a justifiable sense of grievance in this respect."
This question effectively raised the issue of parity in relation to the sentences imposed on Mr Davis in respect of the Queanbeyan offences. During the oral hearing, however, the applicant stated: "I don't rely on the aspects of [the document being pp 11 to 13 commencing 'In respect of the sentences Her Honour'] in relation to parity of Davis or any of those other things". [4] Thus, this question had no relevant role to play in the present application for leave to appeal, limited as it was to the sentence for the Criterion Hotel robbery.

The material before this Court

Before considering the application for an extension of time and the proposed grounds of appeal it is also helpful to identify with greater clarity the material that was before this Court and to deal with related issues.

Applicant's affidavits

The applicant relied upon four affidavits sworn by him on 30 March 2021, 8 April 2021, 29 June 2021 and 21 July 2021. The affidavit sworn on 30 March 2021 recorded, among other things, the applicant's contentions that: 1. since being sentenced, he has been diagnosed with chronic cirrhosis of the liver; 2. the "best estimates" of when the hepatitis B which was the cause of his liver failing was contracted was the early to mid 1970s; and 3. the applicant's blood platelets were 68 whereas 400 was the lower end of the normal range and platelets "are effectively your immune system", and the applicant was told that his were so low that he did not have the capacity to endure COVID-19 and it would kill him if he contracted it.
In addition, attached to that affidavit of 30 March 2021 were two sets of blood test results for the applicant giving results for tests taken on 11 December 2015, 15 September 2020, 16 September 2020, 24 November 2020 and 25 January 2021. The results for the liver function tests taken on 25 January 2021 for "GGT", "AST" and "ALT" were marked with an asterisk indicating that the results were "Abnormal" but not with a double asterisk which would have indicated that the results were "Critically Abnormal". The other liver function test results for that date were not indicated as being abnormal or critically abnormal and I infer that they were all within the normal range. Similarly, for the full blood count tests on 25 January 2021, the test results for "WBC", "PLT" and "HCT" were indicated as abnormal, but not critically abnormal, and the remainder were, I infer, within the normal range.
The affidavit of 30 March 2021 also contained the assertion that there were ultrasound and magnetic resonance imaging (MRI) images and reports that the applicant was unable to produce because he did not have access to records of the Justice Health and Forensic Mental Health Network (Justice Health). Finally, that affidavit included the submission that "had this prognosis been known at the time of sentencing with regard to the robbery of the Criterion Hotel, it would have impacted the severity of the total sentence".
The applicant's affidavit of 8 April 2021 recorded, in substance, that because of the restrictions imposed as a result of the COVID-19 pandemic he had not been able to undertake any external leave programs and, as a result, the State Parole Authority intended to refuse to grant the applicant parole.
The applicant's affidavits of 29 June 2021 and 21 July 2021 were in the same terms. They contained substantially the same information as the affidavit of 30 March 2021. In addition, it was recorded in the later two affidavits that: 1. the applicant was told by a liver specialist "shortly after diagnosis and confirmation of [cirrhosis] of the liver by MRI scan, in about 2016," that if he were not so fit he would not be having this conversation; and 2. at his last ultrasound in May 2021 "the operator … [said] in his 25 years looking at livers he has seen livers that are better than mine that have completely failed".

Applicant's certification of completion of Violent Offenders Therapeutic Programme

The applicant also put before the Court his certificate of completion of the Violent Offenders Therapeutic Programme dated 27 May 2021, to be taken into account on resentence, if applicable.

Applicant's medical records

In addition, extracts from the applicant's Justice Health records came before the Court in the circumstances set out in the following paragraphs.
The applicant wanted relevant records held by Justice Health to be produced in support of his application for leave to appeal. At the call over hearing before the Registrar in early July 2021, there was some discussion about the Crown being able to assist the applicant in obtaining his Justice Health records pertaining to his cirrhosis. To that end, on 22 July 2021 the Crown sought production of all medical records of the applicant since 3 February 2002 held by Justice Health. The order was served on Justice Health on that same day and was returnable on 3 August 2021.
At the appeal hearing on 9 August 2021, the Crown informed the Court that it was yet to receive the documents in response to the order for production despite making follow-up enquiries with the Registry. The Crown accepted that the applicant should not be disadvantaged by any late production of such documents and did not oppose his being given time to review the documents.
After the hearing, the Crown made further enquiries about the status of production, and it ascertained that Justice Health had in fact produced the documents (comprising about 942 pages) to the Registry on 2 August 2021. The material was then provided to the Crown, who forwarded the material to Mr Ross Hill, solicitor, who appears to have been providing some pro bono legal assistance to the applicant in relation to these proceedings although the applicant was unrepresented during the hearing. Mr Hill then informed the Crown that there might be delays in providing the material to the applicant because the applicant was in the process of being transferred to another correctional centre.
On 30 August 2021, the Crown posted the material to the applicant, who received it apparently on 31 August 2021. On 8 September 2021, an affidavit of Ms Adrienne Ey was filed by the Crown updating the Court on the Crown's position in regard to the Justice Health material. Annexed to that affidavit were 27 pages of the 942 pages of material. The Crown indicated that it did not seek to make any further written submissions in relation to this medical documentation. On that same day, the applicant filed written submissions explaining that he did not have access presently to the material sent to him, since it had gone missing from his property in gaol. The applicant also requested that all 942 pages of Justice Health material be tendered.
In order to regularise the position, on 1 October 2021 the Court arranged for an email to be sent to the parties. The email was in the following terms: "1. The Court notes that it has received: (1) submissions from the applicant dated 6 September 2021 (filed on 8 September 2021) stating, among other things: (a) at par 1, that the applicant did not then have access to the Justice Health file sent to him by the Crown as the documents had gone missing from the applicant's property; (b) at par 2, that it was the applicant's submission that the whole of the Justice Health file should be before the Court; and (c) at par 6, it was submitted that 'all material and records available support that the [applicant] had Hepatitis (B) and the start of what is now advanced liver sorosis at the time of sentencing and this was a significant mitigating factor'; (2) an affidavit of Ms Ey affirmed 7 September 2021 stating, among other things: (a) at pars 7 and 8, that the Justice Health documents total 942 pages and the Crown has excerpted 27 pages which the Crown proposed to provide to the Court and 92 pages which the Crown identified as being potentially relevant; (b) at par 12, that that the Office of the Director of Public Prosecutions had received confirmation that 'hard copies of the Justice Health material and the Crown's excerpts' were delivered to the applicant's correctional centre on 31 August 2021; (c) at par 13, that '[o]n Friday 3 September 2021 [Ms Ey] received an email from Mr Hill in which he advised that the applicant sought to tender the entire Justice Health file and to make further written submissions. Mr Hill further advised that he had a conference booked with the applicant on Friday 10 September 2021 for the purpose of receiving the applicant's further submissions [sic]'; and (d) at par 15, the 27 page excerpt was annexure D to the affidavit. 2. The Court also notes that it has not received any further submissions or documentation in relation to the Justice Health file from either party. 3. In the circumstances, the Court proposes to direct as follows: (1) If the applicant wishes to tender any documents from the Justice Health file in addition to the 27 pages of documents in annexure D to the affidavit of Ms Ey affirmed on 7 September 2021 or make any further submissions, he is to file and serve a copy of each further document and a copy of his submissions (not exceeding 3 pages), by 15 October 2021. (2) If the applicant files and serves a copy of any documents or a copy of his submissions in accordance with paragraph 1 of these directions, the Crown is to file and serve any further documents from the Justice Health file on which it seeks to rely and any submissions in reply (not exceeding 3 pages), by 22 October 2021. 4. If either party has any objection to the proposed directions, notice of objection and the grounds for objecting should be sent to the Registrar by 5 October 2021."
On 5 October 2021, the parties responded to that email: 1. the applicant, through Mr Hill, indicated that he had no objection to the proposed directions and that no further filing would be forthcoming; and 2. the Crown likewise indicated that it had no objection to the proposed directions.
To ensure that the parties were given a full and proper opportunity to put their positions, on 5 October 2021 the Court made the directions proposed at par 3 of the email set out above.
No further documents from the Justice Health material in addition to the 27 pages annexed to Ms Ey's affidavit were tendered and no further submissions were made by either party. The applicant did not object to Ms Ey's affidavit or to the 27 pages of extracts from the Justice Health records concerning him.
Those extracts from the Justice Health records relevantly included the following: 1. A 2-page Junee Correctional Centre Receiving Screening form dated 12 May 2008 which recorded (on page 1 of 2) the answer "no" to the question, "Have you been exposed to, or do you have a communicable contagious disease such as … Hep B/C …? If so, what?" 2. A 5-page form completed in respect of the applicant's long-term health plan dated 4 August 2009 which recorded (on page 4 of 5): 1. the answer "yes" to the question, "Have you ever been tested for … hepatitis B …?"; and 2. the answer "no" to the next question, "if yes, do you have … hepatitis B …?" 1. A report of Dr Ian Duncan of Regional Imagining concerning an MRI of the applicant's liver on 26 August 2019 which stated: "Clinical indication: Cirrhosis of unknown aetiology. Ultrasound spotted a new lesion. … The diffusely nodular architecture of the cirrhotic liver is well shown here. … … Assuming non-elevated tumour markers then I would suggest routine radiological monitoring be resumed." 1. A report of Dr Jacqui Stumpel of Regional Imagining concerning an ultrasound of the applicant's abdomen on 12 March 2020 which stated: "Clinical indication: Hepatitis B. Surveillance? HCC. … Comment: Ultrasound appearances are similar to the study of 03/07/2019 and I note the subsequent MRI and CT demonstrated [sic] any definite suspicious lesion. Ongoing surveillance is recommended unless there is the increasing clinical concern in which case a repeat MRI could be considered." 1. Progress/Clinical notes with a date of 2 April 2020 on the page which recorded: "… Cause of cirrhosis is not clear Suggest: U/S every 6 months …" 1. A 3-page Chronic Disease Screen updated on 12 September 2020 which recorded that the applicant had: "Advanced liver disease In date 01-Feb-2017 Cirrhosis of liver Since date 01-Feb-2017 Hepatitis B Since childhood" 1. A 6-page Hep-B Clinical Assessment updated on 21 September 2020 which recorded in relation to the applicant: "… Advanced liver disease In date 01-Feb-2017 Cirrhosis of liver Since date 01-Feb-2017 Hepatitis B Since childhood … Likely Mode of Acquisition Acquisition mode Vertical [Vertical acquisition is understood to mean that the disease was transmitted from the mother to the child in utero, intrapartum or postpartum, for example through breast milk.] … Identified Issues Is he in Phase 4 because raised ALT since 2015 and cirrhosis? 67yo man reports he injected Cocaine in the early 70's and recalls getting what he was told was hepatitis then and going yellow Reports to us that he was told in GLB that he was HCV Ab positive but not RNA positive many years ago. Never drank - ever No current or recent IDU - only in the 70's Explained that he may well have been infected with Hep B and hep C since the 70's. Was told by health professionals since then that he had Hep B that his particular Hep B was a 'comes and goes thing', 'Sometimes it's not there at all'. He also understood that the treatment was a chemotherapy and had horrible side effects. Therefore, he has deliberately avoided the subject of treatment for that reason. H/O 30 years of training for exercise Identified Issues for follow up Gets Migraines and takes Indomethacin for it Used to take 'heaps' of Paracetamol - reports he took handfuls frequently, for the migraines over many years. Now the Indomethacin works well. Does not take Panadol at all now. He asks if he can take something for the HBV - not the Chemo. Also asks about whether he can have breaks in the treatment. Explained that breaks can be life threatening. After one day break, the virus will wake up and this can be life threatening or fatal. There is no telling which person gets which scenario. Asks what the cost is in Cambodia? Is it hard to come by? I promised to get back to him. How long is Australian Script? - 6/12 Appt to discuss with Prof Lloyd case discussion on Fri 18/9/2020 Plats 67, INR 1.3, ALT abnormal ALB normal, Bili 21-23 HBV DNA very low: <2 Cirrhosis Fibrosis score low for cirrhosis - 21.5kPa HBeAg ALT raised since December 2015 in JHFMH records on JHeHS Phase 4 of HBV due to raised ALT since 2015 and F4 Liver fibrosis Patient want treatment and reports he understands the need to take daily for life Treatment Recommendation Treatment Recommendation Commerce ETV [Entecavir - a drug used to treat hepatitis B] If treatment not recommended, annual pathology as per protocol

Objections to the evidence

The Crown put before the Court the 27 pages extracted from the applicant's Justice Health records as annexure D to the affidavit of Ms Ey affirmed on 7 September 2021 and the applicant did not object to that affidavit or the documentation annexed to it. As noted above, when given the opportunity the applicant did not seek to tender any other pages from his Justice Health records.
The Crown did not object to the admission of the applicant's affidavits or the certificate in relation to resentencing, if the Court came to consider that issue. The Crown did object to those affidavits, however, if they were to be relied upon to support the grounds of appeal on the basis that they were fresh evidence. It was submitted that they were not properly fresh evidence and should be rejected as such.
There are limits on the ability of this Court to receive fresh or new evidence when considering an application for leave to appeal against a sentence. "Fresh" evidence is evidence which was not available or which could not have been obtained with reasonable diligence at the time of sentence; "new" evidence is evidence which was available but not used or which could have been obtained with reasonable diligence: Wright v R [2016] NSWCCA 122; 259 A Crim R 133 (Wright) at [71] (R A Hulme J, Fagan J agreeing).
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: Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (Khoury) at [104] (Simpson J, Davies J and Grove AJ agreeing). Nonetheless, the rule is not absolute and has been tempered by the need to accommodate the interests of justice: Khoury at [105].
On an application for leave to appeal against a sentence, evidence of events or circumstances that have arisen entirely since sentence is not received, but evidence may be received of events or circumstances which existed at the time of sentence but which were unknown, or the significance of which was unappreciated: Khoury at [110] and [113].
The determination of whether to receive the evidence is discretionary and caution must be exercised and a proper basis for admission must be established: Khoury at [117]; Wright at [71]. Simpson J identified some of the relevant considerations in determining whether the fresh or new evidence should be admitted in Khoury at [121] as follows: "That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine [sic] the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, [Springer v R [2007] NSWCCA 289; 177 A Crim R 13]). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, [R v Ashton [2002] NSWCCA 498; 137 A Crim R 73])."
In the present case, the situation is complicated by the fact that the Crown adduced the evidence of the applicant's Justice Health records, without objection from the applicant, but the Crown objected to the admission of the applicant's affidavit evidence some of which went to the same issues that arose out of the Justice Health records which were in evidence. In these unusual circumstances, I propose to admit the applicant's affidavit evidence concerning the cirrhosis of the liver issue so that the issue raised by the second ground of appeal, which concerns his liver condition, can, in the interests of justice, be fully considered.
The evidence concerning the impact of the COVID-19 pandemic on the applicant's ability to complete external release programs and be released to parole is in a different position. That evidence in the applicant's affidavit of 8 April 2021 did not concern facts which existed at the date of sentence. As at 2003, when the applicant was sentenced for the Criterion Hotel robbery, the COVID-19 pandemic and its consequences were events or circumstances that had not yet occurred. They have arisen entirely since sentence. A similar situation has recently been considered by this Court in Toller v R [2021] NSWCCA 204 (Toller). In that case and in accordance with the general principles referred to above, Beech-Jones J (as his Honour then was) (Macfarlan JA and Davies J agreeing) said, at [23]: "… as a general proposition, evidence concerning society-wide impacts affecting the conditions in custody that occur after the time that the prisoner was sentenced has not been received and that has not been accepted as a basis for interfering with a sentence. …"
In the circumstances and for these reasons, I would not admit the evidence in the applicant's affidavit of 8 April 2021.

Relevant findings

Although the Justice Health records are sufficient, in my view, to establish that the applicant developed cirrhosis at some point by early 2017, they do not establish the cause of that medical condition. Indeed, the report of Dr Duncan and the clinical notes with a date of 2 April 2020 indicate that the cause or aetiology of that condition is unknown. Moreover, even if the applicant's cirrhosis is a consequence of his having hepatitis B, the evidence does not establish when the applicant became infected with that virus. The Junee Correctional Centre Receiving Screening form dated 12 May 2008 and the applicant's long term health plan dated 4 August 2009 indicate that the applicant had been tested for and did not have hepatitis B at those times. The information concerning the applicant having hepatitis B in the 1970s or from childhood appears to come only from the applicant himself and is not consistent with the information in the screening form of 2008 and health plan of 2009, already referred to, which also appears to have come from the applicant. In addition, it can be noted as submitted by the Crown that the applicant did not apparently report any concerns regarding hepatitis B or liver issues to the psychologist, Mr Anthony Diment, in relation to his health and drug use history as recorded in the psychological report prepared for the sentencing hearing in 2003.
Taking all of the evidence which has been admitted into account, my relevant findings in relation to his medical condition can be summarised as follows: 1. the applicant has suffered from cirrhosis of the liver since about the beginning of 2017; 2. the aetiology or cause of his cirrhosis is unclear especially having regard to, among other things, the report of Dr Duncan and the clinical notes with a date of 2 April 2020; and 3. the applicant has not established on the balance of probabilities that his cirrhosis of the liver was caused by his being infected with hepatitis B in childhood, or in the 1970s as a result of intravenous drug use, or that he was suffering from hepatitis B at the time of his sentencing for the Criterion Hotel robbery, especially in light of, among other things, the answers to the questions in the Junee Correctional Centre Receiving Screening form dated 12 May 2008 and the applicant's long term health plan dated 4 August 2009, which have been set out above.
Before turning to consider the applicant's grounds of appeal in light of these findings, it is necessary to deal with his application for an extension of time.

Application for extension of time

As it was not in dispute that the notice of application for leave to appeal was filed out of time - more than 17 years since the date of the sentencing in question - the applicant sought an extension of time, under s 10(1)(b) of the Criminal Appeal Act, for the filing of the notice of the application.

Submissions

In its written submissions the Crown opposed the application for an extension of time for in effect the following reasons: 1. the appeal was without merit; 2. there had been a very significant and unexplained delay; 3. the applicant made a deliberate decision not to pursue a sentence appeal 11 years ago when represented by Senior Counsel in the matter of GAR v R (No 3) in which he appealed against his conviction for the Criterion Hotel robbery; and 4. it would be against the interests of justice with respect to finality of proceedings.
In reply, the applicant submitted in substance that an extension should be granted on account of the following: 1. the fresh evidence now available concerning his life expectancy given his diagnosis of cirrhosis of the liver; 2. the COVID-19 pandemic, which has effectively increased his non-parole period by at least 12 months; and 3. the exceptional circumstances of his ongoing legal position.

Consideration

Section 10(1) of the Criminal Appeal Act relevantly provides: "(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence - (a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. …"
The discretionary power in s 10(1)(b) to extend the time limit is a legislative recognition that the interests of justice in a case such as the present may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [32]-[33]; Hayward v R (Cth) [2021] NSWCCA 63 at [7].
It should be borne in mind that, in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power: Kentwell at [32].
In light of these principles, it is appropriate to consider separately whether an extension of time should be granted in relation to each of the three effective grounds of appeals.

First ground of appeal

The first ground involved the contention that the sentence imposed for the Criterion Hotel robbery was manifestly excessive. In my view, an extension of time should not be granted in respect of this ground for a number of reasons.
First, it was not suggested, nor was there any basis for accepting, that there was some reason why this ground could not have been raised within the relevant time limit.
Secondly, the applicant commenced but abandoned an appeal against the sentence for the Criterion Hotel robbery many years ago. It was recorded in GAR v R (No 3) at [6] and [8] that the fifth ground of appeal in those proceedings originally involved an appeal against the sentence imposed for the Criterion Hotel robbery but such a ground was not pressed at the hearing, which took place in October 2010. At that time, the applicant was represented by senior and junior counsel and there is nothing to suggest that manifest excess as a ground of appeal against the sentence was not properly considered by the applicant and his legal advisers before the appeal against sentence was not pressed.
Thirdly, no satisfactory explanation for the delay of over 17 years has been offered by the applicant.
Finally, although the sentence of 17 years with a non-parole period of 10 years and 7 months can be seen as stern, the sentencing judge held that the criminality displayed was "very serious indeed". It was found that the invasion was carefully planned, the victim was confronted by two armed men in what was effectively his overnight home, and he was subjected to gratuitous violence, threatened, and bound up, with callous disregard. The applicant's role in the robbery was as a principal and involved his using his considerable intelligence and experience in planning and execution. Approximately $220,000 in cash, and $75,000 worth of jewellery and other property, were stolen. As to the applicant's subjective case, the sentencing judge expressed doubt whether there were realistically any reasonable prospects for rehabilitation and noted that there was an absence of evidence of remorse. The applicant's criminal record was extensive including numerous armed robberies in the 1980s, and at the time of the armed robbery at the Criterion Hotel the applicant had only been released to parole some seven months earlier. It was held that "a more severe penalty is warranted in order to reflect elements of punishment and deterrence, and to ensure the protection of society." [5] In short, her Honour's findings concerning the objective circumstances of the offending and the applicant's subjective case, which was not one which was powerfully mitigating, were such as justified a stern sentence.
The length of the sentence was not imposed inadvertently. Her Honour specifically turned her mind to the severity of the sentence in the following terms: "According to the statistics for s 98 offences [under the Crimes Act] provided to me by Mr Jeffreys, the head sentence I intend to impose for the Criterion Robbery is higher than any imposed on an offender between January 1996 and December 2002. Nevertheless, for the reasons I have already adverted, such a sentence is warranted in this case." [6]
When the non-parole period for the Criterion Hotel robbery is considered in the context of the non-parole period and fixed terms for the Queanbeyan offences, it can be seen that only 4 years and 7 months of the total effective non-parole period for all of the Queanbeyan offences and the Criterion Hotel robbery were solely attributable to the Criterion Hotel robbery.
Thus, it does not appear to me that the sentence imposed for the Criterion Hotel robbery would be likely to be properly characterised as unreasonable or plainly unjust, or so far outside the range of sentences available that some error must have been made, so as to be manifestly excessive.
In all the circumstances, I am of the view that the interests of justice do not require an extension of time to be granted to allow the applicant to seek leave to appeal on the basis of the first ground of appeal that the sentence was manifestly excessive.

Second and third grounds of appeal

The second and third grounds of appeal fall into a different category. The applicant's cirrhosis of the liver and the COVID-19 pandemic are matters that have only arisen more recently and could not, therefore, have been the subject of grounds of appeal within the time limit specified in s 10(1) or at the time of the hearing of the appeal in GAR v R (No 3). In addition, these grounds of appeal, while not strong, require the Court's consideration in light of the evidence which has been admitted and other considerations. As a result, in my view, the interests of justice favour granting an extension of time so that these two grounds can be considered and dealt with.
Accordingly, an order extending time should be made but limited to the second and third grounds of appeal, which have been identified above.

Second ground of appeal

The second ground of appeal involved the contention that there was fresh evidence of a diagnosis of cirrhosis of the liver which would have impacted the severity of the sentence for the Criterion Hotel robbery if it had been known at the time of sentencing.

Submissions

The applicant submitted that he was infected with hepatitis B in the 1970s and that the infection has in recent years led to the development of cirrhosis, which he said he was diagnosed with in about 2016. He submitted that the prognosis relating to that condition was that the cirrhosis would "severely" limit his life span; [7] that his doctors are telling him that he is "right on the edge of going into liver cancer". He submitted that: "[e]very six months they check me to see if the fat has turned into cancer [and] if it turns to cancer well then I've got months. … they don't tell me how long I've got, they don't - but I know from my reactions with the doctors, the way they're looking at it and when they're talking amongst themselves that I'm not in a good spot in relation to a lot of years." [8]
The applicant also contended that "I couldn't have got [hepatitis B] other than in the early 70s that's the only time that I was involved with drug use, that would have caused it." [9]
The Crown did not dispute the diagnosis that the applicant suffered from cirrhosis of the liver. It did, however, submit that the cirrhosis was a matter that had arisen after the sentence was imposed and therefore was not something that could provide a basis for appellate review, but rather a matter properly within the province of the executive government, relying on R v Munday [1981] 2 NSWLR 177 (Munday), Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (Betts) and Anastasiou v R [2010] NSWCCA 100 (Anastasiou).

Consideration

This Court generally does not have power to disturb a sentence on appeal unless it is correcting an error of the kind explained in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40, and the identification of such error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court: Betts at [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ). An exception to that general position arises, however, where there is fresh evidence of a medical condition that existed at the time of sentencing but the condition was unknown or its seriousness not fully appreciated at the time: Anastasiou at [15] (Rothman J, McClellan CJ at CL and James J agreeing). Simpson J explained in Khoury as follows at [113]: "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."
If, however, the facts relating to the relevant medical condition 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 of the medical condition which has arisen subsequent to sentencing is a matter for the executive government: Khoury at [110]; Munday at 178 (Street CJ, Moffitt P and Lee J agreeing).
As noted above, in my view the evidence relating to the applicant's cirrhosis of the liver should be admitted. In light of my findings based on the evidence on that topic as a whole, however, it does not appear to me that the applicant has established that the cirrhosis which he has had since 2017 was caused by a hepatitis B infection or any other condition which was in existence at the time he was sentenced for the Criterion Hotel robbery in 2003. Consequently, it cannot be concluded that the sentencing proceeded upon an erroneous view of the factual circumstances at that time so as to justify a conclusion that the sentence was affected by error. As a result, this Court should not uphold the appeal on this ground. The consequences and management of the applicant's cirrhosis of the liver which has arisen subsequent to sentencing are, therefore, a matter for the executive government.
Even if I were wrong in my findings in relation to the applicant's cirrhosis and it was caused by a condition which was in existence at the time of sentencing but which was unknown or unappreciated, the Court would still be required to determine whether the cirrhosis rendered the sentence more onerous than was appreciated at the time of sentencing: Iglesias v R [2006] NSWCCA 261 (Iglesias) at [13] (McClellan CJ at CL, Hulme and Hall JJ agreeing); Anastasiou at [32]. In that respect, the Court should consider the applicant's medical condition in its current state, the availability of medical facilities within the prison system, and whether those facilities can provide adequate treatment for the condition: Iglesias at [13]; Anastasiou at [32].
Where a medical condition is not considered to be sufficiently burdensome in its current state to warrant intervention, then it is not within the ambit of this Court to intervene even where a deterioration in the condition is conceivable. In such cases, in the event that the condition deteriorates to a point where an adequate level of care is not available in gaol, then intervention is instead within the ambit of the executive government under, for example, the royal prerogative of mercy or powers of early release under s 160 of the Crimes (Administration of Sentences) Act 1999 (NSW): R v Jacobs [2001] NSWCCA 212 at [36], [39]; 122 A Crim R 409 (Badgery-Parker AJ, Carruthers AJ agreeing); Iglesias at [16]; Anastasiou at [21], [34]-[37].
In the present case, the applicant's blood test results which display some abnormal but not critically abnormal results, the recommendations in the reports of Dr Duncan and Dr Stumpel and the treatment recommendations in the NLMC Hep-B Clinical Assessment updated on 21 September 2020 indicate that the applicant's cirrhosis of the liver is being managed appropriately in custody and is not sufficiently burdensome in its current state to warrant intervention by this Court, even if it is accepted that the original sentencing proceeded on an erroneous view of the factual circumstances at that time.
For all of these reasons, I would not uphold the appeal on the basis put forward in the second ground of appeal concerning the applicant's diagnosis of cirrhosis of the liver.

Third ground of appeal

The third ground of appeal is based on the applicant's contention that he has not been released to parole on account of the COVID-19 pandemic preventing him completing the required external release programs, and this would have been relevant to the structuring of the sentence if it had been known at the time of sentencing.

Consideration

For the reasons given above, I would not admit the evidence in the applicant's affidavit of 8 April 2021 concerning the impact of the COVID-19 pandemic on his ability to complete external leave programs in order to be released to parole. Further and in any event, it was held in Toller at [25]: "As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, [Cabezuela v R [2020] NSWCCA 107] confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender's conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic."
The same reasoning governs the present case and Beech-Jones J's comment in Toller at [20] is equally applicable: "This Court's power to intervene in a sentence is generally not enlivened unless error of the kind set out in House v The King (1936) 55 CLR 499 at 504 to 505 is established (Betts v [The Queen] (2016) 258 CLR 240; [2016] HCA 25 at [10] …). Consistent with that principle, the general position is that any review of a sentence in light of events subsequent to the imposition of that sentence which affect the harshness of prison conditions is exclusively a matter for the executive government (R v Munday (1981) 2 NSWLR 177 at 178)."
It follows that, even if it is accepted that the COVID-19 pandemic restrictions on the applicant's participation in external leave programs has led to his not being released to parole, that is not a matter which justifies the intervention of this Court but is a matter for the executive government.
Accordingly, the third ground of appeal should be rejected.

Conclusion and orders

As the second and third grounds of appeal required consideration, I propose that leave to appeal should be granted in respect of those grounds. Nonetheless, because an extension of time was not granted in relation to the first ground of appeal and the second and third grounds of appeal were not made out, the appeal should be dismissed.
For all of these reasons, I propose that the orders of the Court should be: 1. The time within which the notice under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) is required to be given to the Court is extended to 8 April 2021 in relation only to the second and third grounds of appeal, being the ground identified in the document headed Submissions filed on 31 March 2021 and the ground identified in the applicant's affidavit of 8 April 2021 respectively. 2. The applicant has leave to appeal in respect of the second and third grounds of appeal. 3. The appeal is dismissed.

Endnotes

Tcpt, 4 December 2003, p 3.
Tcpt, 4 December 2003, p 12.
Tcpt, 9 August 2021, p 3(35-39).
Tcpt, 9 August 2021, p 3(35-39).
Tcpt, 4 December 2003, p 11.
Tcpt, 4 December 2003, pp 11-12.
Tcpt, 9 August 2021, p 4.
Tcpt, 9 August 2021, pp 7-9.
Tcpt, 9 August 2021, p 6. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2021

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