Relevance of period on bail to the disposal of this application
54Since being sentenced by the trial judge, the applicant has spent 399 days on conditional bail.
55The sentencing judge made orders as follows:
Belal Saadalah Khazaal, you are convicted of the offence of making a document connected with assistance in a terrorist act. I sentence you to 12 years imprisonment, to date from 31 August 2008. I fix a non parole period of 9 years. You may be released to parole after 31 August 2017.
56The sentence accordingly commenced on 31 August 2008. The decision of this Court quashing the conviction was given on 9 June 2011. On 7 July 2011, the applicant was granted conditional bail. At the time bail was granted, the conviction had been quashed. Bail was granted pending a new trial or other disposition of the proceedings: Khazaal v R (Supreme Court of New South Wales, Adams J, 7 July 2011, unreported). However, on 7 October 2011, the Crown was granted special leave to appeal to the High Court. Accordingly, from that date, the applicant was on bail pending the determination of the Crown appeal against the order quashing the conviction.
57The High Court delivered judgment on 10 August 2012. The orders of the Court were:
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal made on 9 June 2011 and in place thereof dismiss the appeal against conviction on count 1 of the indictment.
3. Remit the matter to the Court of Criminal Appeal for consideration and determination of the appeal against sentence in respect of the conviction on count 1 of the indictment.
58According to the Crown's written submissions filed 6 September 2012, the applicant's bail was revoked by McClellan JA the same day (10 August 2012). Assuming that is correct, the applicant was in custody from 31 August 2008 to 7 July 2011 and then on conditional bail from 7 July 2011 to 10 August 2012. He was evidently taken back into custody on 10 August 2012 and has remained in custody since that date.
59The Crown submits that "whatever the outcome of the sentence appeal, the non-parole period of nine years fixed by Latham J on 30 September 2009 to expire on 31 August 2017 must be adjusted so that the date of expiration of the non-parole period is increased by the length of time the offender was on bail".
60The Crown acknowledged that there is no direct authority on the issue whether such an adjustment ought to be made. It was submitted that the "best guide" is provided by the remarks of Callinan J in Marotta v R [1999] HCA 4; (1999) 160 ALR 525 where, in the context of an application for bail pending appeal, his Honour said (at [9]):
I am of the view that so long as it be clear that the full terms in actual time to be served in prison are served if the appeals are refused, the public interest in the fact of the convictions and their consequences will not be adversely affected, whereas, there is, in my opinion, no public benefit of interest in the incarceration of people who might turn out to have been wrongly convicted according to law [emphasis added].
61As submitted on behalf of the applicant, those remarks were made obiter dicta, without the benefit of argument on the point and in the different context of an application for bail. Further, the remarks were made in the context of an offender appeal.
62The applicant opposed any postponement of the date on which he will be eligible for parole. He relied upon the further evidence as to his circumstances since the sentence was imposed for that alternative purpose. The evidence addressed the distress and anxiety caused by the Crown appeal and the inevitable uncertainty as to the fate of that appeal.
63Whilst the applicant was initially on bail awaiting a new trial following his own successful appeal, from 7 October 2011 his bail continued pending the determination of the Crown's appeal to the High Court. The applicant submitted that the distress and anxiety of that period should be taken into consideration either in the event of re-sentence (which does not arise) or in determining whether to make the mechanical adjustment to the applicant's release date sought by the Crown in order to give effect to the sentence imposed at first instance.
64The applicant sought to tender two medical reports directed to that issue. In view of the conclusions I have reached, it is not necessary to address that material in these reasons save to observe that, as may be expected, it reveals a degree of real distress caused or contributed to by the course of these proceedings.
65The submission that such distress and anxiety should now be taken into account by this Court was put in two ways. First, the applicant relied upon decisions of this Court relating to the circumstance where an offender experiences actual anxiety and distress attributable to the possibility of a harsher sentence being imposed following a successful Crown sentence appeal.
66The applicant acknowledged that a Commonwealth offender is not able to rely upon the principle of double jeopardy, that is, the assumption (without proof) of anxiety and distress brought about by a Crown appeal: see Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638. However, he relied upon the decisions of this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (at [173] to [175]) and R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 (at [52]) which hold that the actual anxiety and distress attributable to the possibility of a harsher sentence being imposed following a successful Crown sentence appeal remains a factor to which regard must be had on re-sentence.
67The applicant further relied upon the following remarks of Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17; (2012) 215 A Crim R 476 (at [15]):
[I]t remains open to this Court to take into account the circumstances of the respondents since the sentences were imposed, and particularly those circumstances which directly flow from the compliance with the orders made.
68[As noted in the applicant's submissions, her Honour's remarks at [14] appear to misstate the basis of the decision in Bui but that does not matter for present purposes].
69The applicant submitted that the distress or anxiety experienced by him whilst at liberty on bail since sentence was passed is due to an increased sense of uncertainty brought about by the Crown's conviction appeal to the High Court. However, the current appeal is not a Crown sentence appeal, nor has any error been identified in the sentence passed at first instance necessitating re-sentencing by this Court. Accordingly, in my view, the applicant's reliance on the Court's decisions in De La Rosa and R v JW is misconceived.
70The second way in which the applicant's submission was put sought to rely upon his distress and anxiety as "fresh" evidence. The principles to be applied as to the characterisation and permissible use of such evidence were considered by Buddin J in Anderson v R [2010] NSWCCA 130; (2010) 202 A Crim R 68 (at [44] to [46]). In that case, his Honour helpfully summarised the considerations relevant to the admissibility of fresh evidence in R v Goodwin (1990) 51 A Crim R 328 (at 330) in the following terms:
(1) that the additional material sought to be put before this court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;
(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and
(3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings.
71Fresh evidence has alternatively been characterised as evidence "not available to the accused at the time of trial, actively or constructively": R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] per Kirby J, Mason P and Levine J agreeing. It is implicit in each of those definitions that the facts sought to be established by the tender of such evidence must pre-date the imposition of sentence although not relied upon, and not reasonably able to have been relied upon, at that time. The evidence here is not fresh evidence, so understood. It relates to facts arising entirely after sentence and, as such, as with the evidence of the applicant's conduct whilst at liberty on bail, cannot be received where no error has been established. The same approach was taken in respect of post-sentence evidence of assistance provided to the authorities in JM v R [2008] NSWCCA 254 (at [25]) and in respect of a medical condition that had developed post-sentence in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 (at [111] to [112]).
72Further, such evidence cannot itself admit of error, as explained by Simpson J in Khoury v R at [110] as follows:
...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.
73For those reasons, I have concluded that the so-called fresh evidence should not be admitted. I have further concluded that there is no warrant for reducing the sentence on the grounds of the applicant's undoubted distress and anxiety occasioned by the course of these proceedings.