REGINA v Lenard Clarence JONES [2002] NSWCCA 494 | Case summary

9 December 2002 REGINA v Lenard Clarence JONES Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by Judge Keleman SC in the District Court on 12 December 2001. 2 On 18 October 2001, during the course of a voir dire conducted prior to the empanelment of the jury, the applicant pleaded guilty before Judge Keleman to five counts of dishonestly obtaining for himself a valuable thing (a motor cycle) by deception, namely by presenting a counterfeit bank cheque for the purchase of it, contrary to the provisions of s 178BA of the Crimes Act 1900 ("the Act"). 3 The offences occurred between 1 May 1999 and 8 May 1999 at various places in New South Wales. 4 The maximum penalty for each such offence was one of five years imprisonment. 5 The applicant asked Judge Keleman to take into account, in accordance with the mechanism provided by s 32 of the Crime (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a further forty-six offences. These comprised (i) ten charges of dishonestly obtaining a benefit by deception (obtaining a motor cycle by presenting a counterfeit bank cheque) (ii) two charges of stealing (a pair of New South Wales registration plates and a motor cycle) (iii) one charge of possession of an unregistered firearm (a semi-automatic rifle) and one charge of possession of an unauthorised firearm (a silencer) (iv) one charge of possession of car breaking implements (bolt cutters) (v) one charge of having in his possession goods reasonably suspected of having been stolen (a motor cycle) and (vi) thirty charges that between 18 September and 1 October 1998 at Coffs Harbour he dishonestly obtained deposits of cash for a computer that had not been supplied. 6 The applicant was sentenced on count one to imprisonment for two years and eight months, to date from 29 August 2001. A non-parole period of one year and eight months, expiring on 28 April 2003, was specified. The Form 1 offences were taken into account in this sentence. 7 The applicant was sentenced to concurrent terms of imprisonment for eight months, commencing on 29 August 2001 and expiring on 28 April 2002, in respect of his convictions on counts 2, 3, 4 and 5. 8 The applicant appears in person. He filed written submissions in support of his application. He relied on those on the hearing of his application. 9 In his written submissions the applicant stated that he was seeking to adduce fresh evidence. The fresh evidence is identified in the applicant's affidavit sworn on 14 October 2002: (i) an updated report of Dr Nielssen dated 8 August 2002, (ii) photocopies of three pages from a text titled "Manic Episode", (iii) a further affidavit sworn by the applicant on 5 September 2002 in which he sets out details of conversations between himself and Dr Walker, a psychiatrist employed by the Corrections Health Service, with whom he has had contact during the period of his custody, (iv) a document titled "Therapeutic Interventions". This is a plan for the long-term treatment of persons suffering from bipolar mood disorder, (v) a report prepared by Dr Walker, of the Corrections Health Service, (vi) a text titled "History of the Development of Valproate for Treatment of Bipolar Disorder". 10 It is appropriate at this juncture to note that there was evidence before Judge Keleman, including a report of Dr Nielssen dated 23 November 2001, to establish that the applicant suffers from bipolar mood disorder. In Dr Nielssen's opinion, when the offences were committed, the applicant was suffering an episode of mania following a period of depression. This was a matter that was very much to the fore in the approach that Judge Keleman took to the sentencing of the applicant. It serves to explain the notable leniency with which the applicant was dealt. 11 The facts upon which the applicant was sentenced are set out in Judge Keleman's reasons for sentence as follows: "The facts which are agreed may be briefly stated. The first count in the indictment was committed on 1 May 1999. In April 1999 a Mr Gregory Hucker of Goulburn, advertised his 1998 KTM300cc Enduro motor cycle for sale in the Trading Post magazine. On 30 April 1999, the prisoner, identifying himself as Ian Bailey, phoned Mr Hucker and discussed buying the motor cycle. Mr Hucker agreed to accept a bank cheque for $9000 for the motor cycle. On Saturday 1 May 1999 the prisoner and another male attended Mr Hucker's home in Goulburn. Mr Hucker took the prisoner and the other man to a nearby address where the motor cycle was housed. Mr Hucker accepted what appeared to be a Westpac bank cheque for $9000 from the prisoner believing it to be genuine. The prisoner and the other man then departed with Mr Hucker's motor cycle in the back of a van. This bank cheque was counterfeit. It was created by the prisoner. Mr Hucker became aware that the cheque was counterfeit after it was deposited into the bank. On 20 November 1999 Mr Hucker identified the prisoner from a series of ten photographs shown to him by a police officer as the person who handed him the counterfeit cheque. This motor cycle was recovered on 2 November 1999 from a van being driven by the prisoner on that day. The second count in the indictment was also committed on 1 May 1999. In April 1999 Mr Brent Dunne of Eden advertised his 1994 KTM Enduro 250cc motor cycle for sale in the Trading Post magazine. On 29 and 30 April 1999 the prisoner phoned in relation to the advertisement. A price of $3300 was agreed upon to be paid by bank cheque. On Saturday 1 May 1999 the prisoner and another male attended the address in Eden where the motor cycle was housed. The prisoner said he was Ian and produced a photo licence as identification. Mrs Dunne (Brent Dunne's mother) accepted what appeared to be a Westpac bank cheque for $3300 from the prisoner believing it to be genuine. The prisoner and the other man then departed with Mr Dunne's motor cycle on the back of the van. This bank cheque was counterfeit, it was created by the prisoner. Mrs Dunne became aware that the cheque was counterfeit after it was deposited into the bank. On 25 November 1999 Mrs Dunne identified the prisoner from a series of 16 photographs shown to her by a police officer as the person who handed over the counterfeit cheque. On 17 December 1999 Mr Dunne identified the prisoner from a serious of 16 photographs shown to him by a police officer as the person who had handed over the counterfeit cheque. This motor cycle has not been recovered. The third count in the indictment was committed on the 2 May 1999 (sic). In April 1999 Mr dean Williams of Bateman's Bay advertised his Kawasaki KX125 motor cycle for sale in the Trading Post magazine. On 28 and 29 April 1999 the prisoner, calling himself Ian Bailey, telephoned and discussed buying the motor cycle. Mr Williams agreed to accept $4500 for the motor bike to be paid by bank cheque. On Sunday 2 May 1999 the prisoner and another male attended the address in Bateman's Bay where the motor cycle was housed. The prisoner produced a photo licence as identification. Mr Williams accepted what appeared to be a Westpac bank cheque for $4500 from the prisoner believing it to be genuine. The prisoner and the other male departed with Mr William's motor cycle in the back of a van. This bank cheque was counterfeit and it was created by the prisoner. Mr Williams became aware that the cheque was counterfeit after it was deposited into the bank. On 21 December 1999 both Mr Williams and his mother identified the prisoner from a series of 16 photographs shown to them by police officers as the person who had handed over the counterfeit cheque. This motor cycle has not been recovered. The fourth count on the indictment was committed on 8 May 1999. In April 1999 Mr Matthew Stoddart of Narellan advertised his Yamaha YZ125 motor cycle for sale in the Trading Post magazine. On 7 May 1999 the prisoner, calling himself Allan Ryan, phoned and discussed buying the motor cycle. The price of $7000 was agreed upon to be paid by bank cheque. The prisoner said that the bike was for his son. On Saturday 8 May two male persons attended Mr Stoddart's address in Narellan where the bike was housed. One was a young male who introduced himself as Michael Ryan. Neither of the young males was the prisoner. Mr Stoddart accepted from Michael Ryan what appeared to be a Westpac bank cheque for $7000 believing it to be genuine. The two young males departed with Mr Stoddart's motor bike on the back of a yellow utility. This vehicle had the same registration number as the van used by the prisoner in count 3. This bank cheque was counterfeit. It was created by the prisoner and supplied to Michael Ryan by the prisoner. Mr Stoddart became aware that the cheque was counterfeit after it was deposited into the bank. This motor cycle has not been recovered. The number on the counterfeit Westpac bank cheque was identical to the number on the counterfeit Westpac bank cheques in counts 1, 2, 3 and 5. The fifth count on the indictment was also committed on 8 May 1999. In April 1999 Mr Frederick Cook of Mount Annan (near Windsor), advertised his Honda CR125 motor cycle for sale in the Trading Post magazine. On 7 May 1999 the prisoner, calling himself Allan Ryan, phoned and discussed buying the motor cycle. A price of $5000 was agreed upon to be paid by bank cheque. The prisoner said that the bike was for his son. On Saturday 8 May 1999 two young males attended Mr Cook's address in Mount Annan where the bike was housed. Mr Cook's sister, Lisa Mura, was at the premises. Neither young male was the prisoner. One of the young males introduced himself as John Ryan. He produced a photo licence in that name as identification. Ms Mura accepted from John Ryan what appeared to be a Westpac bank cheque for $5000 believing it to be genuine. The two young males departed with Mr Cook's bike on the back of a yellow utility. The bank cheque was counterfeit. It was created by the prisoner and supplied to John Ryan by the prisoner. Mr Cook became aware that the cheque was counterfeit after he deposited it into the bank. This motor cycle has not been recovered. The number on the counterfeit Westpac bank cheque was identical to the number on the counterfeit Westpac bank cheques in counts 1, 2, 3 and 4. The s. 178BA charges numbered 1 to 6 and 8 to 11 on the Form 1 were committed over a period from 30 April 1999 to 25 July 1999. In each of these charges the prisoner dishonestly obtained a motor cycle or motor vehicle (in relation to charge number 3) by presenting to the owner a counterfeit bank cheque which he had created. In each case the owner gave possession of the motor cycle or motor vehicle to the prisoner believing the bank cheque to be genuine. The prisoner presented counterfeit Westpac bank cheques in relation to charges 1 and 2 on the Form 1, and counterfeit National Australia bank cheques in relation to charges 3, 4, 5, 6, 8, 9, 10 and 11 on the Form 1. Charge 7 on the Form 1, a charge of stealing, relates to a set of New South Wales registration plates which were stolen from a vehicle at Bellingen on or about 23 July by the prisoner. Those numberplates were on a vehicle used by the prisoner in relation to charges 6, 8, 9, 10 and 11 on the Form 1. On 22 August 1999, the prisoner was arrested by Queensland police using a computer in a hotel room in Coolangatta. Subsequently downloaded from the computer were images of a counterfeit Westpac bank cheque with identical numbering to the counterfeit Westpac bank cheques presented in counts 1 to 5 on the indictment, and charges 1 and 2 on the Form 1. Also downloaded from the computer were images of the counterfeit National Australia Bank bank cheques which had identical numbering to the counterfeit National Australia Bank cheques presented by the prisoner in charges 3, 4 and 5 on a Form 1 and common features in relation to the counterfeit National Australia Bank bank cheques presented by the prisoner in charges 6, 8, 9, 10 and 11 on the Form 1. Computer images of a New South Wales licence number 8557RG were also downloaded from the computer. False licences bearing this number were presented by the prisoner in relation to charges 3, 8, 9 and 10 on the Form 1, and by "John Ryan" in count 5 on the indictment. The prisoner supplied "John Ryan" with this licence. Other material downloaded from the computer related to the prisoner. Items located in the hotel room were consistent with creating false documents and false identities. The prisoner was charged in Queensland on the (sic) 22 August 1999 with dishonesty offences, allegedly committed in Queensland. He was released to bail in relation to those matters on 9 September 1999. Those matters are the subject of current proceedings in Queensland and have yet to be resolved. On 2 November 1999, police stopped the prisoner when he was driving a van at Kincumber on the New South Wales Central Coast. There were two young men with him in the van, one of them was his son. In the van were three motor cycles. One was a Suzuki motor cycle which had been taken from the roadside at Berowra by the prisoner and the two young men earlier that day. This motor cycle is the subject of charge 12 on the Form 1, namely a charge of stealing. The second motor cycle in the van was the KTM motor cycle which is the subject of Count 1 in the indictment. The third motor cycle was a Yamaha motor cycle which is the subject of charge 16 on the Form 1, a charge of goods in custody. This motor cycle had been allegedly fraudulently obtained in Queensland on 16 April 1999, and is the subject of current proceedings in Queensland which have yet to be resolved. Also in the van was a disassembled .22 calibre rifle and silencer, this being the subject of charges 13 and 14 respectively on the Form 1 and a set of bolt cutters which are the subject of charge 15 on the Form 1, namely a charge of possess car breaking implements. In relation to charges 17 to 46 on the Form 1, which are charges under s. 178BA, the prisoner using a false name rented business premises in Coffs Harbour in September 1998, and in the local paper advertised computers for sale. In respect of each of those charges he took deposits of money ranging from $50 to $1730 from persons who responded to the advertisement and who agreed to purchase computers from him. He also accepted in some cases computers from these people as trade-ins. At the time the prisoner did this he had no intention of supplying computers to these persons. He told these persons that their computers would be forthcoming in two weeks. The prisoner then left the area without supplying the computers. The prisoner was charged in relation to these matters on 1 March 2001. The total value of the motor cycles obtained by the prisoner in respect of counts 1 to 5 in the indictment was $28,800. Mr Hucker's motor cycle (count 1) was recovered. However none of the other motor cycles were recovered. The value of the outstanding motor cycles not recovered in respect of the counts on the indictment is $19,800. In relation to charges 1 to 6 and 8 to 11 on the Form 1, which were committed over the period from the 30 April 1999 to 25 July 1999, the value of the motor cycles and motor vehicle obtained was $62,500. None of these vehicles were recovered. The value of the motor cycle that was the subject of the larceny offence (charge 12 on the Form 1) was $4000. This motor cycle which is the subject of the goods in custody offence (charge 16 on a Form 1) was $2000. This motor cycle was recovered by the owner. The registration plates which are the subject of the stealing offence (charge 7 on the Form 1) have not been recovered. They are valued at $20. In relation to the s. 178BA charges which are the subject of charges 17 to 46 on the Form 1, the total value of the deposits and computers obtained was $17,086. None of this money and property has been recovered. The total value of the property which is the subject of the various counts in the indictment and the From 1 amounts to $114,406, and the value of the outstanding property not recovered amounts to $99,406." 12 Before turning to the complaints developed by the applicant in his written submissions, it is appropriate to refer to the matters that Judge Keleman took into account of his reasons for sentence. 13 His Honour noted that the applicant was aged forty seven years and that he had no prior convictions. He referred to the contents of a pre-sentence report and a number of other reports including those of Dr Nielssen, Roger Peters (a consultant psychologist), Dr Harris, Sally Hector (speech pathologist). His Honour also noted the contents of the report of Dr Khan relating to the applicant's parents and the contents of a letter written by the applicant's mother. A number of references and documents concerning the applicant's involvement in a business venture involving the establishment of a film studio in the Hunter region were in evidence. The applicant's wife, step-grandfather and a man named John Bashford gave oral evidence. The latter had come to know the applicant in connection with the proposed film studio. 14 Judge Keleman found that the applicant had been brought up in Queensland and that he appeared to have had a largely happy early life. His Honour reviewed the applicant's employment history, noting that after completing the School Certificate, the applicant had trained as a carpenter. He had worked in the building industry and as a farmer. He had completed courses in Business Management and Marketing and worked in a range of management positions specialising in research and development. Judge Keleman found that the applicant had substantial computer skills. Among his many occupations he had worked as a missionary building instructor in New Guinea, a building instructor in Queensland and in the Solomon Islands. He had managed a company developing new technology in filtration. He had been self-employed marketing computer based programs associated with the real estate industry. 15 Generally, Judge Keleman found the applicant to have been involved in numerous business ventures, including the endeavour to establish the film studio in the Hunter Newcastle region. His Honour found that this venture had been acknowledged at both the State and Federal Government level as one possessed of considerable potential benefits for the region. 16 Judge Keleman noted that the applicant was married and that he was residing with his wife and two of his three children in rented accommodation at Wallsend. The family were in poor financial circumstances. The applicant was in receipt of Social Security payments at the date he stood for sentence. 17 Judge Keleman commented on the applicant's numerous hobbies and community activities, including his membership of the board of the Seventh Day Adventist Church, his work as a voluntary youth chaplain and bible teacher and his fundraising, both for the church and the Red Cross. 18 His Honour went on to say: "It would appear from the various reports and the evidence given by the prisoner that he attributes the commission of the present offences, including the offences on the Form 1, to his mental state at the time and to an attempt to restore the family's financial circumstances following a failed business venture and subsequent dispute and legal proceedings with his business partner in about 1996-1997, which resulted in the loss of everything the family owned." 19 Judge Keleman summarised the effect of the evidence concerning the applicant's mental condition at pages 14 to 17 of his reasons for sentence. "According to Dr Nielssen's report and other evidence following the prisoner's dispute with his former business partner, he went through a long period of depression after which, according to Dr Nielssen's report, he suffered periods of mania during which the prisoner experienced elevated mood, little need to sleep, racing thoughts, numerous creative ideas and plans, and so much energy that others could not keep up with him. According to Dr Nielssen the prisoner, whom he describes as a man of above average or superior intelligence, provided him with a history of periods of mania and periods of depression against a background of a family history of bipolar disorder and other mental illness. Dr Nielssen observed that there was no previous history of psychiatric treatment although the prisoner stated in evidence that he had received counselling some years ago for stress related depression because he was not coping at the time. In Dr Nielssen's opinion, the prisoner is suffering from a bipolar mood disorder (manic depressive illness), which is currently in remission and that the present offences were committed during a period of mania which had followed a period of depression. According to Dr Nielssen's report, recognised features of manic episodes include grandiosity, a sense of entitlement, excessive optimism and impaired social judgment, which, according to Dr Nielssen provides a partial explanation for a person such as the prisoner with no prior history becoming involved in offences of dishonesty at this stage in his life. The report from Dr Harris confirms that in March 1996 the prisoner presented in a very distraught state with mental anxiety and depression and had complained of having business and financial difficulties and involvement in a current court case. The prisoner's wife also gave evidence that the prisoner's behaviour gradually changed for the worse following the dispute with his business partner and he became abusive and critical. According to Dr Nielssen, the prisoner's wife reported changes in his mood and behaviour consistent with periods of mania. In Dr Nielssen's report it is noted that the prisoner told him of three periods in his life when he experienced auditory hallucinations and special association with the Holy Spirit. However, the prisoner did not give delusional interpretations of these experiences and described them as occurring during periods of elevated mood that he understood to be due to bipolar mood disorder. Dr Nielssen also noted, as part of the prisoner's medical history, that the prisoner developed a stutter from the age of four which has continued and he suffered a head injury and other injuries at the age of 16 when a wall collapsed on him at a building site. The prisoner apparently recovered from these injuries and the prisoner was not aware of any personality change or impairment of mental function following the head injury. The consultant psychologist, Roger Peters, states in his report that although this type of case is outside his area of expertise, it is possible the prisoner may have been suffering from a dissociative identity disorder rather than a bipolar disorder. However he acknowledges that Dr Nielssen is eminently qualified to provide an opinion in this area and accepts Dr Nielssen's diagnosis. In the circumstances little, if any weight, can be given to the possible diagnosis proffered by Mr Peters. According to Dr Nielssen, the prisoner is likely to benefit from psychiatric treatment under the long-term supervision of a psychiatrist. In this regard it is relevant to note that the prisoner has paid for a number of recent counselling sessions with Mr Peters. However, Mr Peters acknowledges that this is an interim measure until he can be referred to an appropriate psychiatrist. Dr Nielssen observes that many well known people thrive on the creativity produced by manic episodes and resent treatment, however episodes of thought disorder tend to become more frequent in later life and periods of depression are usually more severe, and that the prisoner could become severely depressed if he were sent to prison. In this regard, it is relevant to note, that the prisoner in evidence said that while he was in prison having been bail refused following his arrest in respect of the present offences for a period of three months and eight days, he took custody in his stride although not surprisingly he described it as a shocking experience. There is no suggestion that this period of incarceration caused him to become depressed. Indeed the report from Corrective Services for that period is indicative of him responding well to his custodial situation and utilising his business skills in a constructive manner. Apart from the prisoner's psychiatric problem which is currently in remission the prisoner appears to be in a good health. He rarely drinks alcohol and does not use prohibited drugs." 20 In addition to this thorough review of the evidence of the applicant's mental condition, Judge Keleman took into account the following matters in considering the subjective circumstances of the case:

With respect to considerations 2 and 3, Judge Keleman observed that these attributes were hard to reconcile with the applicant's conduct from September 1998 and, in particular, with his admission that he had involved his son in the commission of some of the offences. However, his Honour accepted that the applicant did possess those attributes until September 1998. Judge Keleman accepted that the applicant had reasonable prospects of rehabilitation should he receive appropriate supervision and psychiatric treatment when he is released. 21 Judge Keleman accepted that at the time of the commission of the offences the applicant was suffering from bipolar mood disorder. His Honour went on to refer to the principles relating to the sentencing of persons suffering from mental disorders. His Honour observed that in such cases often deterrence will be given little weight, because the offender is not an appropriate vehicle for making an example to others. His Honour next noted the observations of Hunt J in R v Wright (1997) 93 A Crim R 48 at 51 that where an offender acts with knowledge of what he is doing and with knowledge of the gravity of this actions, the moderation with respect to general deterrence need not be great. Judge Keleman concluded that the applicant had acted with full knowledge of what he was doing and with full knowledge of the gravity of his actions. Nevertheless, his Honour accepted that the effect of the applicant's underlying psychiatric condition was a factor in the commission of the offences and for this reason he determined to moderate the effect of general deterrence to some extent. 22 In the course of giving evidence at the sentence hearing, the applicant gave an account that another person was the driving force behind the criminal enterprise and that his role had been only to collect and to deliver the motor cycles, using his computer skills in order to produce the false documents associated with the scheme. His Honour rejected the applicant's evidence in this respect. He expressed himself satisfied that the applicant had sought to underplay his role and to underestimate the financial benefits that he had received. Judge Keleman was satisfied beyond reasonable doubt, taking into account the manner in which the offences were committed, the preparation necessary in order to commit them and the lengthy period of time over which they were committed that the applicant was the driving force behind them. His Honour found that his motivation had been greed associated with obtaining finance for one or more of his business ventures. Those findings were open to his Honour. 23 The applicant had offered to make restitution to the victims of the offences, starting at the modest rate of $150 per month and increasing in the future. Judge Keleman found that the applicant and his family appeared to have no significant assets and that their financial circumstances made it unlikely that any meaningful amount of compensation would be paid. His Honour considered that the offer did not flow as the result of genuine remorse and contrition, but rather that it evidenced self-interest based on an attempt to avoid a full time custodial sentence. Again, it was open to his Honour to come to that view. 24 Keleman DCJ referred to the principles enunciated in R v Barton [2001] NSWCCA 63; 121 A Crim R 185 as to the approach to be taken with respect to offences that are taken into account on a Form1. His Honour found that a number of the offences detailed in the Form 1 were aggravated in that they had been committed while the applicant was on bail in respect of dishonesty offences pending in Queensland. 25 Judge Keleman took into account that the applicant pleaded guilty to each of the offences. His pleas were entered during a voir dire hearing to determine certain evidentiary challenges. The trial had been estimated to take some six weeks or more. Judge Keleman concluded that in this context the pleas of guilty had considerable utilitarian value and although not entered at early stage and entitled the applicant to a discount of twenty per cent, having regard to the principles enunciated in R v Thompson & Houlton [2000] 49 NSWLR 383. 26 Judge Keleman considered that the objective seriousness of the offences was such as to mean that the only appropriate sentencing option was one of full-time imprisonment. His Honour found that alternatives to full time custody, including periodic detention, were not capable of reflecting the objective seriousness of the offences. 27 Judge Keleman found that there were special circumstances taking into account that this was the first time that the applicant would be serving a sentence of imprisonment and that he would benefit from an extended period of supervision in order to assist him with his mental health problems. 28 I now turn to the matters that the applicant identified in his written submissions and to the question of the fresh evidence upon which he seeks to rely. 29 It is the applicant's submission that the material before Judge Keleman relating to his bipolar mood disorder was not sufficiently detailed in the description of the attributes of the condition to admit of his Honour properly assessing the material that was before him. Further, his Honour had not been able to make an informed assessment of the impact of the mental condition on the offending conduct. 30 The applicant pointed to some of the material that his Honour accepted, including the references relating to the film venture. 31 The applicant in his submissions says this: "The truth of my life as pointed out by the gaol psychologist is that I hold no official qualifications, only a few minor certificates and that I have absolutely no background in the film or television industry. There are many other examples of manic episode features not previously recognised but nevertheless embedded throughout the sentencing material and therefore not correctly presented at the time due to the fact that no-one involved really understood how all the pieces of the jigsaw fitted together." 32 As I understand the thrust of the applicant's submissions, he contends that a feature of his mental illness was his grandiosity. The production of the various documents which pointed to a creditable history of involvement in various business ventures to which Judge Keleman referred was merely further evidence of his florid mental condition. In the applicant's submission his Honour might have approached the sentencing upon a different footing had he had the benefit of the material upon which he now seeks to rely. 33 In support of his submission that the Court should receive this evidence as fresh evidence, the applicant contends that his legal representatives were incompetent. Had they had a more comprehensive understanding of the material available concerning bipolar disorder the applicant submits that they would have placed more detailed evidence before Judge Keleman. 34 The principles governing the receipt of fresh evidence, including in a sentencing appeal, were set out by Hunt J in Goodwin v R (1990) 51 A Crim R 328 at 330. "What must be established is (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." 35 On occasions fresh evidence has been received in cases where the legal representatives of an applicant have acted incompetently, in obtaining relevant evidentiary material: R v Abbott (1985) 17 A Crim R at 355 and R v McKenna (unreported) NSWCCA, 16 October 1992. 36 This matter proceeded before Judge Keleman on the basis of a report prepared by Dr Nielssen that the applicant suffered from bipolar mood disorder. The contents of the updated report of Dr Nielssen to my mind do not materially change the picture from that set out in the original report. Dr Walker's report refers to the treatment of the applicant for his bipolar disorder while in custody. I am not of the view that any of the material upon which the applicant seeks to rely comes within the principles enunciated in Goodwin or Abbott or is otherwise receivable as fresh evidence. The applicant's mental condition was known and evidence about it was before the Court. There is nothing to suggest that he was incompetently represented. In my view, the tender of this material should be rejected. 37 I turn now to what I understand to be a further basis of challenge to the sentence that Judge Keleman imposed, namely that in the light of the applicant's age, his past good character and having regard to his mental condition, a more lenient sentence should have been imposed. In particular, the applicant submits that his Honour erred in concluding that any sentence of imprisonment be served in full time custody. The applicant drew attention to Regina v Tait & Bartley (1979) 24 ALR 473 at 476 in support of his contention that the sentence was so manifestly excessive as to bespeak error. 38 In the applicant's submission, while Judge Keleman acknowledged that he would moderate the sentence in order to take into account the applicant's mental condition, he had failed to do so to a sufficient degree. It was contended that greater weight should have been given to the applicant's need for rehabilitation and psychiatric treatment and rather less consideration to deterrence. 39 Judge Keleman's reasons for sentence were carefully considered and took into account the evidence of the applicant's bipolar mood disorder. His Honour found that notwithstanding that mental condition the applicant had acted with knowledge of what he was doing and of the gravity of his actions. That is an important finding in assessing the challenge that the applicant has advanced on the hearing of this application. 40 The applicant has not identified any specific error in the approach that Judge Keleman took. I consider that the challenge that the sentence is manifestly excessive to be a hopeless one. The offences, when regard is had to their number, to the planning evidenced in their commission, and to the sums involved must be regarded as objectively serious ones. 41 The prominence given by Judge Keleman to the evidence of the applicant's mental condition is apparent when one looks to the overall sentence of two years and eight months with a minimum term of one year and eight months and to the circumstance that in structuring the sentences his Honour directed that each of the other sentences be served concurrently with that imposed in respect of count 1. In my view, the sentences evidenced a marked degree of leniency reflective of his Honour's acceptance of the significance of the applicant's mental condition. 42 For these reasons, I would propose that the applicant be given leave to appeal against the severity of the sentence but that the appeal be dismissed. 43 BUDDIN J: I agree. 44 BELL J: The orders of the Court will be as I have proposed.

REGINA v Lenard Clarence JONES

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Judgment (11 paragraphs)

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