Richardson v R

Court of Criminal Appeal (NSW)|2021-09-27|Before: Johnson J, Lonergan J, Dhanji J

Judgment

JOHNSON J: By Notice of Appeal filed on 7 June 2021, the Applicant, John Richardson (a pseudonym), seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Wollongong District Court on 27 November 2020 for a number of domestic violence offences.
Following pleas of guilty, the Applicant was sentenced by his Honour Judge Haesler SC to an aggregate term of imprisonment of three years and three months, comprising a non-parole period of one year and 10 months commencing on 27 November 2020 and expiring on 26 September 2022 with a balance of term of one year and five months commencing on 27 September 2022 and expiring on 26 February 2024.
The offences, maximum penalties and indicative sentences were as follows: Offence Maximum Penalty Indicative Sentence On 5 December 2019, assault KH occasioning actual bodily harm (s.59(1) Crimes Act 1900) Five years' imprisonment Imprisonment for one year and one month On 5 December 2019, assault KS occasioning actual bodily harm (s.59(1) Crimes Act 1900) Five years' imprisonment Imprisonment for one year and six months On 5 December 2019, aggravated enter dwelling with intent to commit serious indictable offence (s.111(2) Crimes Act 1900) Fourteen years' imprisonment Imprisonment for two years and three months On 5 December 2019, intentionally damage property (s.195(1)(a) Crimes Act 1900) (a related offence under s.166 Criminal Procedure Act 1986) Five years' imprisonment (jurisdictional limit of two years' imprisonment for s.166 related offence) Imprisonment for nine months On 6 December 2019, being armed with a weapon with intent to commit an indictable offence (assault of JS, the brother of KS) (s.114(1)(a) Crimes Act 1900) (a related offence under s.166 Criminal Procedure Act 1986) Seven years' imprisonment (jurisdictional limit of two years' imprisonment for s.166 related offence) Imprisonment for one year and one month

The Grounds of Appeal

The Applicant relies upon the following grounds of appeal: 1. Ground 1 - His Honour erred in: 1. holding that whilst he accepted that the moral culpability was lower on account of the Applicant's mental health conditions at the time of the offence, this was a matter of limited value "because it is also clear that he was well aware of what he was doing and the consequences of what he was doing"; and/or 2. the application of the principles pertaining to mental health (as summarised in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) to the sentencing of the Applicant. 1. Ground 2 - Fresh evidence demonstrates that the circumstances in which the Applicant is serving his sentence are much more onerous than those expected to flow at the time of sentence and a miscarriage of justice has occurred.

Facts of Offences

Statements of Agreed Facts were tendered in the District Court, which revealed the following narrative of the offences. Background to Offences
The Applicant (who was 38 years old at the time of the offences) and the victim KS were in a relationship for about 18 years and had been married for about 10 years. There were three children of the relationship, being sons aged 14 and 15 years and a daughter aged 10 years (as at December 2019).
As at December 2019, the Applicant and KS had been separated for some time.
For about two years prior to December 2019, the Applicant had been in a relationship with KH which ended about two weeks prior to 5 December 2019. Offence Against KH on 5 December 2019
At about 5.00 pm on 5 December 2019, the Applicant made contact with KH and asked if he could attend her house at Blackbutt. At that time, KH was living at those premises with her three children who were aged 12 years and under. KH agreed and the Applicant attended her property.
Both the Applicant and KH had been consuming alcohol and they continued to do so as they discussed their relationship. The Applicant was angry at KH about the breakdown of their relationship. After a discussion at the back of the premises, when the Applicant was going to leave, KH suggested that he stay overnight because of the alcohol he had consumed.
At about 9.30 pm, KH put the three children to bed. The Applicant and KH were in bed and, at one point, he held KH's arm. She pulled her arm away striking the Applicant to his face and saying "Fuck off".
The Applicant then punched KH in the face using a closed fist to the bridge of her nose causing her to fall back onto the floor, sustaining bruising to both of her eyes and a fractured nose (the first offence of assault occasioning actual bodily harm). The bruising occasioned to KH is visible in photographs tendered at the sentencing proceedings.
KH stood up, and attempted to drag the Applicant out of the house. She took the Applicant's keys and threw them out of the front telling him to "Get out". The Applicant told KH "This is your fault" and said words to the effect of "Aren't you going to ask me to stay?".
The Applicant left the property soon after. He tried to call KH twice at about 10.15 pm and she hung up the telephone both times. Subsequently, an apprehended domestic violence order was applied for and granted listing KH as the person in need of protection. Offences Involving KS on 5 December 2019
The Applicant then travelled by motor vehicle to the residence of KS and the children at Albion Park.
At about 10.30 pm on 5 December 2019, KS went to bed, about 30 minutes after the three children had retired. As she was drifting off to sleep, KS heard a loud bang on the front door. She heard another bang and her 15-year old son came out of his bedroom, with KS asking him "Who is it?" and the boy responding "It's not the police or anything".
KS then walked downstairs to the front door where she encountered the Applicant. The Applicant and KS commenced to yell at each other and the 15-year old boy emerged from his room once again.
The Applicant pulled the screen door off the frame and then smashed the stained glass panel at the side of the wooden door. He was banging on the wooden door. The Applicant then walked over to KS' vehicle which was parked in the driveway and began hitting it. The Applicant smashed the windscreen of KS' vehicle and broke both rear view mirrors off the vehicle which were later photographed lying nearby on the driveway (the s.166 related offence of intentionally damaging property).
The Applicant took some time to calm down. He then noticed that the door to the house was open. As the Applicant placed his hand on the edge of the door, it closed on his hand which became jammed against the door frame. The Applicant then entered the house (the offence of aggravated enter dwelling with intent to commit serious indictable offence, namely intimidation).
The Applicant punched KS multiple times in the head causing bruising to her face and head and bleeding to her lip. He also pulled KS' hair. She repeatedly said to the Applicant "Please stop".
KS was trying to cover her face. At this time, the Applicant was punching her and was saying that he was going to destroy her and that he would make sure she "Got nothing" (the second offence of assault occasioning actual bodily harm).
At this point, the 10-year old girl came out of her bedroom and she and her 15-year old brother were screaming at the Applicant. Soon after, the Applicant left. Offence involving JS on 6 December 2019
About one hour later, the Applicant was located outside the residence of JS, the brother of KS, at Rosemeadow.
The Applicant was observed by police pulling up to the address in a motor vehicle. He left the vehicle and was seen holding a six-inch alloy tyre wrench. The Applicant placed the tyre wrench in his pocket and walked towards the house, stopping at the metal fence outside the property (the s.166 related offence of being armed with intent to commit a serious indictable offence).
Police spoke to the Applicant and the following conversation was recorded on the police officer's body-worn video: Constable Hill: "You were seen getting out of your car with a tyre lever here at [name of street], why?". Applicant: "That's my ex-wife's brother's house who has previously threatened me and I was gonna confront him". Constable Hill: "What were your plans with the tyre lever?". Applicant: "If I needed self-defence". Constable Hill: "Do you agree you got out of the car with the tyre lever in your hand?". Applicant: "Yes I do". … Applicant: "I was going from there to home … I was detouring here to confront him, because I knew I'm in enough shit as it is … to confront him …". … Constable Hill: "When was the last time [JS] was threatening you?". Applicant: "… months". Applicant: "I know I'm in the wrong I'm not denying that."
The Applicant was arrested on 6 December 2019. He was granted conditional bail on that day and remained on bail until he was sentenced on 27 November 2020.

The Sentencing Hearing and Sentencing Remarks

The sentencing hearing took place on 27 November 2020. The Applicant was sentenced later that day with his Honour delivering ex tempore sentencing remarks.
A number of documents were tendered by the Crown and then counsel for the Applicant. KS read her victim impact statement to the Court. Amongst the documentary material tendered in the defence case was a report dated 12 November 2020 of Joe Pisana, psychologist, and a report of Dr Nalin Wijesinghe, psychiatrist, dated 18 November 2020 together with a number of references with respect to the Applicant.
The criminal history of the Applicant was confined to an entry at the Camden Local Court on 3 December 1999 when, for an offence of common assault, he was placed on a recognisance, without conviction, under s.556A Crimes Act 1900 to be of good behaviour for 12 months.
No oral evidence was given at the sentencing hearing, with the Crown making written and oral submissions and counsel for the Applicant making oral submissions on sentence.
As noted earlier, his Honour delivered ex tempore sentencing remarks. Having regard to the grounds of appeal, it is appropriate to refer to parts of the sentencing remarks.
The sentencing Judge was aware that the Applicant had worked for a period as a parole officer with the Department of Corrective Services. Early in the sentencing remarks, his Honour said at [5]-[7]: "5 Although he has been before a court once before I do not take that matter into account. He was until 5 December 2019, a person of good character. His occupation required he be of good character. He has, subsequently to his plea of guilty, resigned from that position; recognition by him of both the inevitable fact that he would have been removed from it and, his acceptance that what he did is incompatible with his former profession. 6 [The Applicant] will be going to gaol today. 7 I do not, as he surely cannot, ignore the lived experience of custody. Any former law enforcement officer going into custody will, and I make this finding based upon decades of experience rather than direct evidence, involve, potentially, a greater degree of hardship in serving that sentence than might otherwise be the case. It is notorious that former law enforcement officers may, if their status becomes known, be subject to a degree of harassment directed at them by fellow prisoners. This can lead to, if necessary, protective custody conditions to be put in place and, given that he has not previously served custody, it is impossible to meet the requirements sometimes referred to by the Court of Criminal Appeal for there to be evidence of this fact; see Jones v R (1985) 20 A Crim R 142 at 153. But that fact should not and cannot preclude the imposition of penalties which are proportionate to the objective seriousness of what was done by the offender."
His Honour then summarised the facts of the offences (at [8]-[15]). Reference was made to aspects bearing upon the objective seriousness of the offences (at [16]-[23]) and then characterising the offences as domestic violence offences (at [24]-[33]).
His Honour said at [25]-[31]: "25 The material before me shows both an acceptance by the offender that he went too far, and his attempts to justify or excuse what he did. When speaking with his psychiatrist and psychologist he attempted to paint himself as, somehow, a victim or someone who has been wronged. A continued belief by an offender that they have themselves been wronged carries with it the continued risk that the offence will be repeated. 26 The offences occurred in a residential community, they occurred in or outside each victims home. So far as his wife is concerned there was an additional crime of damage to her car. There was not just an entry into her home; there was the assault in her home in the presence of at least one of their children. 27 Proper recognition must be given to the real harm these crimes do; and to the real harm that the children of victims suffer and that the community suffers. Denunciation is required in any sentencing for such matters. Recognition of the fact that no matter what promises are made and what treatment is engaged in, a victim may never truly feel safe and that they might again be personally targeted has to be recognised. 28 In many cases, and this is one, an offender has to be removed from the community. But, this in itself creates a dilemma, particularly as is the case here, where the offender has been treated in the community and is responding well to that treatment. Any term in custody will disrupt the treatment he is presently receiving. 29 Community protection supported by growing community perceptions that demand men who assault women in their homes be punished severely, requires the Courts apply the traditional method of gaoling that person and removing him from the community. Yet all the empirical evidence is that as a deterrent to violent behaviour gaols have, and will continue to fail. Gaols break prosocial bonds and encourage links with criminals. Gaol is an intrinsically violent environment. Rather than discouraging violent crime, gaols can sometimes have a crime-producing effect, they are an ineffective way of addressing the underlying causes of crime. 30 That said, it would be wrong, as the High Court noted in Munda v Western Australia [2013] HCA 38, to somehow accept that a victim of violence in a domestic relationship is somehow less in need or deserving of the protection and vindication the criminal law provides. The criminal law is not limited to questions of general deterrence. Courts have to sentence appropriately to the objective seriousness of a crime, and have an obligation to vindicate the dignity of each victim and to express the community's disapproval. 31 The Court also has to consider community protection and in this regard it can and does here, require the removal of the offender for a period, but also a recognition that he must be returned to the community. If he can be returned to a prosocial environment, where he is supported by prosocial family and friends, where he can re-engage in treatment and where he can demonstrate that the lessons learned from treatment to date can be put to effect, that should also be encouraged. Everyone benefits from the proper rehabilitation of someone who has offended against individuals and the community."
The sentencing Judge then referred to the reports of Dr Wijesinghe and Mr Pisana, stating at [33]: "The material before me, which is set out in full in the reports and carefully enunciated by Mr Higgins, indicates that for a period before the commission of this offence the offender suffered depression, [characterised as] major depression and anxiety. There are also indications supporting a differential diagnosis of Post-Traumatic Stress Disorder. It is also clear that he was unmedicated and not caring for himself. There is evidence of a number of suicide attempts, some quite significant. He was abusing pharmaceuticals. The reports refer to his considerable emotional dysregulation. Mr Higgins summarises it succinctly by saying he was 'unwell at the time'."
Given the terms of the first ground of appeal, it is appropriate to set out that part of his Honour's sentencing remarks where the question of mental illness was considered. His Honour said at [34]-[38]: "34 [The Applicant's] mental state at the time of the commission of the offence is relevant. The causes of that mental state relate to a number of factors, but they do include the breakdown of his relationships. To his credit, he was trying to deal with those problems by engaging with a psychiatrist and a psychologist prior to the commission of the offences and he has continued treatment with them. 35 It is submitted that there is a causal connection between his mental state and the commission of these offences requiring consideration being given to an acknowledgment that his moral culpability is not the same as a person who did not have such a condition. While I am prepared to accept that submission it can so far as the offending itself is concerned, have limited value because it is also clear that he was well aware of what he was doing and the consequences of what he was doing. 36 From his comments to police at the ex-wife's brother's house, it seems absolutely clear that having committed one offence, his resentments were such, and his lack of concern both for himself and others was such, that he proceeded to commit the offences against his former wife and then her brother knowing, inevitably, the consequences that would flow to him from a breach of the criminal law. 37 It is possible that he will receive some treatment in custody, but he will have to join a queue. It is to his credit, as the certificates before me indicate, that he has engaged in treatment designed to, apparently with some success, to deal with his anxiety and anger management problems. 38 If on release he continues with that treatment, continues with his psychiatrist and psychologist, and continues with his medication, his risk of reoffending would be low. Should, however, he not continue treatment and not continue to take his medication, then his risk of offending remains something that will be, unfortunately, a lifelong concern, particularly to his former wife."
In concluding the sentencing remarks, and before announcing the indicative sentences and the aggregate sentence itself, his Honour said at [40]-[42]: "40 There will be an aggregate sentence here and there will be a significant finding of special circumstances. There must be accumulation of the individual sentences to reflect the fact that there were three victims of this spree of offending. The finding of special circumstances is significant, because community protection can only be met to a limited degree by removal of this offender from the community. The longer he is supervised, mentored and assisted while in the community the safer everyone will be. 41 In that regard, while this is not an R v Edwards (1996) 90 A Crim R 510, type exceptional case, the sooner he is able to have contact of some form with his children the better his chances of rehabilitation will be; and the chances of repairing the damage he has done to them will be. Current COVID-19 restrictions will however mean face to face visits will be impossible at least for the near future. The minimum term that must be served, however, must properly reflect the seriousness of the crimes that he committed. 42 No sentencing judgment can address every aspect of all the purposes of sentencing and every aspect set out in the statute or the submissions of counsel. I have sought to encompass and summarise them in coming to an ultimate synthesis of what the appropriate sentence will be."

Evidence Tendered by the Applicant Concerning his Treatment in Custody After Imposition of the Sentence

The second ground of appeal relies upon events in custody which have affected the Applicant since his sentence commenced on 27 November 2020.
Ms Bashir SC, for the Applicant, seeks to tender a number of affidavits with respect to post-sentence events as fresh evidence in support of the second ground of appeal or, alternatively, if the first ground of appeal is made out, as evidence which the Court should take into account in resentencing the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912.
If the Applicant made good his first ground of appeal, the Crown had no objection to the Court having regard to the tendered affidavits on resentence. However, if the Applicant failed with respect to the first ground, the Crown objected to the Court receiving and acting on the affidavits upon the basis that this Court, as a court of error, should not uphold the ground of appeal, based upon post-sentence events.
It was common ground that the Court should receive the affidavits and have regard to them for the purpose of determining the appeal.
The Applicant relies upon the following affidavits: 1. affidavit of the Applicant affirmed 4 June 2021; 2. affidavit of Dean Lenz, solicitor, affirmed 7 June 2021; 3. a further affidavit of Dean Lenz affirmed 7 June 2021 (20 paragraphs); 4. a further affidavit of the Applicant affirmed 3 September 2021; 5. a further affidavit of Dean Lenz affirmed 14 September 2021.
In addition, the Applicant tendered Case Notes of the Department of Corrective Services for a period between 21 and 27 July 2021 when the Applicant was housed at Kirkconnell Correctional Centre (Exhibit A).
The Crown did not seek to challenge the matters contained in these affidavits or to cross-examine the Applicant or Mr Lenz concerning their contents.
I will return to the factual matters contained in these affidavits when considering the second ground of appeal.

Ground 1 - Challenge to the Approach Taken on Sentence to the Applicant's Mental Condition at the time of the Offences Submissions for the Applicant

The submissions of Ms Bashir SC in support of the first ground of appeal focused attention upon ROS [34] to [38] (see [36] above).
It was submitted that the sentencing Judge had found that, for a period before the commission of the offences, the Applicant suffered from major depression and anxiety and that there were indications of a differential diagnosis of post-traumatic stress disorder. It was noted that his Honour held that there was a causal connection between the Applicant's mental state and the commission of the offences. It was noted that the sentencing Judge had found that this aspect had "limited value because it is also clear that he was well aware of what he was doing and the consequences of what he was doing" with this approach being based upon the Applicant's "comments to the police" (ROS [35]-[36] at [36] above).
It was submitted that the finding that the Applicant was "well aware of what he was doing and the consequences of what he was doing" based on the "comments to police" was not open to the sentencing Judge insofar as the offences against KH and KS are concerned. It was submitted that the finding that the impact on moral culpability was of limited value, based on those comments or such awareness, was not an argument made by the prosecutor who accepted the unchallenged link made by Mr Pisana and simply made a submission that the Applicant's "moral culpability wasn't reduced to any significant extent".
In support of these submissions, Ms Bashir SC argued that the comments to the police related more to the Applicant's state of mind by about 11.30 pm, an hour after the offences against KS and two hours after the offence against KH. It was submitted that it was not open to the sentencing Judge to relate back the Applicant's statement to the police to earlier offences committed that evening.
It was submitted further that, given the level of "considerable emotional dysregulation" at the time of the offences, there was no evidence that, even if the Applicant did know prior to the conduct that there would be consequences, he had any more control over his conduct.
Even if weight had to be given to the protection of the community, it was argued that this did not mean that the Applicant's lower moral culpability can have "limited value", nor that general deterrence should not be moderated to some degree.
It was submitted as well that, as the sentencing Judge observed that the Applicant "will have to join a queue" for treatment in custody (ROS [37] at [36] above), it was an error on the part of the sentencing Judge not to take into account the lack of adequate treatment in custody (which his Honour implicitly accepted) as representing a matter that would make the service of his sentence more onerous.
Senior Counsel for the Applicant submitted that each of these matters constituted error in the reasoning of the sentencing Judge as to the impact of the Applicant's health on an appropriate sentence, so that some other lesser sentence is warranted, taking into account in particular the evidence of post-sentence events concerning the Applicant's experience in custody. Submissions for the Crown
The Crown emphasised that the assessment of the extent of a mental condition, its causative connection (if any) with offending and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for the sentencing Judge: Moiler v R [2021] NSWCCA 73 at [59].
It was submitted that the finding made by the sentencing Judge with respect to the Applicant's state of mind at the time of commission of all offences was clearly open. It was noted that the offences against KS occurred about an hour after the offence against KH. It was submitted that the effluxion of time was not consistent with a continuing state of uncontrolled emotional dysregulation. The Crown noted that the Applicant had travelled uninvited to KS' house late at night "in a rage" as explained to the Applicant's psychiatrist. When stopped by police about an hour later near the house of KS' brother, the Applicant admitted that he was going there to confront JS knowing that he was already in trouble.
The Crown submitted that it was open to the sentencing Judge to find that the Applicant's conduct at KS' house was consistent with him having a similar state of mind at the earlier stage of the evening when he committed the offence against KH.
It was submitted that it was open to the sentencing Judge to find that the reduction in the Applicant's moral culpability was limited, notwithstanding the causal link to the offending. It was argued that the degree to which the Applicant was aware of the consequences of his actions, and his reasons for deciding to confront KS and JS, are relevant to the assessment of the extent to which his moral culpability (and the sentence) should be reduced: Taylor v R [2006] NSWCCA 7 at [30]; Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 at [41]-[42].
It was submitted that the Applicant's moral culpability, and the weight to be given to general deterrence, were impacted not only by his mental condition, but also by the domestic violence context in which each of the offences occurred. It was submitted that general deterrence, denunciation and recognition of the harm to the victims were all required to be given weight on sentence.
The Crown argued that it was clear that his Honour was aware of the principles relevant to the Applicant's mental condition and their interaction with other relevant factors on sentence. The sentencing remarks were carefully crafted to balance the many purposes of punishment that arose in this case, including the Applicant's mental condition.
It was submitted that it was incorrect to assert that the sentencing Judge did not apply appropriately the principles in Director of Public Prosecutions (Cth) v De La Rosa. Rather, his Honour was cognisant of the many competing matters to be considered and reflected them in his decision whilst noting that "no sentencing judgment can address every aspect of all the purposes of sentencing" (ROS [42] at [37] above).
The Crown submitted that the first ground of appeal ought be dismissed. Decision
The sentencing Judge was well aware of the principles to be applied where the sentencing of an offender involves an assessment of any mental condition from which the offender suffered, and its role in the commission of the offence, together with other aspects identified in authorities such as Director of Public Prosecutions (Cth) v De La Rosa at [177] and Aslan v R [2014] NSWCCA 114 at [33]-[34].
In Aslan v R, Simpson J (Adams and McCallum JJ agreeing) observed (at [33]-[34]), that none of the principles in Director of Public Prosecutions (Cth) v De La Rosa are "absolute", with the potential effect of any mental disorder to be considered in the circumstances of the particular case.
In Blake v R [2021] NSWCCA 258, R A Hulme J (Leeming JA and Fullerton J agreeing) said at [42]-[43]: "42 The principles set out by McClellan CJ at CL are not expressed in mandatory or unqualified terms. Simpson J pointed out in Aslan v R [2014] NSWCCA 114 at [33] that the Chief Judge had described in respect of each principle how it may have a certain affect upon the assessment of sentence. Moreover, where a principle does apply, it remains a matter for the sentencing judge to make a discretionary evaluation as to the extent of its significance. 43 The latter point is illustrated by something said by Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 50-51. His Honour described how 'general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others'. His Honour concluded the discussion of that principle by saying: 'But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great'."
With respect to the matter complained of in Ground 1(i), it was open to the sentencing Judge to find that any reduction in the moral culpability of the Applicant flowing from his mental condition was of limited value in this case. His Honour explained (ROS [36] at [36] above) this approach by reference to the series of events which followed and the Applicant's explanation for them.
The Applicant was involved in a course of conduct which began at KH's premises at Blackbutt in which he committed a serious assault against her. He then travelled by motor vehicle some seven kilometres to the residence of KS at Albion Park. His actions at those premises indicated a state of significant anger in which a further serious assault was committed as well as other offences which served to terrify not only KS, but the children present in the premises at the time.
Thereafter, the Applicant travelled once again by motor vehicle, on a journey of about 67 kilometres, to the residence of JS at Rosemeadow. It was open to the sentencing Judge to find that the Applicant's comments made to police outside JS' residence at Rosemeadow related to his state of mind at earlier times during this course of conduct, in which he travelled to different locations committing serious offences along the way.
The finding (at ROS [36] at [36] above) which is challenged in Ground 1(i) is that, after assaulting KH, the Applicant proceeded to commit offences against KS and then JS knowing "the consequences that would flow to him from a breach of the criminal law". It was open to his Honour to make that finding, based as it was on the Applicant's statements to police and his course of conduct where he travelled from one location to the next for the purpose of committing serious offences of violence against KS and JS.
The Applicant has not demonstrated error in the manner asserted in Ground 1(i).
Nor has the Applicant demonstrated that the sentencing Judge erred in the application of principles pertaining to mental health when sentencing the Applicant as asserted in Ground 1(ii).
His Honour had regard to the treatment obtained by the Applicant prior to sentence and observed that it "is possible that he will receive some treatment in custody", but that "he will have to join a queue" (ROS [37] at [36] above). This was a realistic assessment as to what may happen in custody concerning treatment. The sentencing Judge took into account the prospect of post-sentence treatment, with this aspect contributing as well to "a significant finding of special circumstances" (ROS [38], [40] at [36]-[37] above).
His Honour observed that all of these factors were taken into account as part of "an ultimate synthesis of what the appropriate sentence will be" (ROS [42] at [37] above).
As Aslan v R and Blake v R make clear, there are no automatic consequences where a mental condition of an offender is taken into account on sentence. The finding to be made will depend upon the facts of the particular case.
When sentencing the Applicant, his Honour had regard to the Applicant's mental condition in a measured and appropriate way by reference to the circumstances of the Applicant and the offences. The Applicant has not demonstrated error in his Honour's approach.
I would reject Ground 1(i) and (ii).

Ground 2 - Claim that Fresh Evidence Demonstrates that the Circumstances in which the Applicant is Serving his Sentence are much more Onerous than those Expected to Flow at the Time of Sentence and a Miscarriage of Justice has Occurred Evidence Relied Upon by the Applicant

Before moving to the submissions concerning this ground, it is appropriate to summarise the evidence concerning the Applicant's experiences in custody since he was sentenced on 27 November 2020. What follows is drawn from the affidavits and materials tendered by the Applicant (see [42]-[43] above).
On 30 November 2020, the Applicant was received into custody at the Metropolitan Remand and Reception Centre. On that day, he disclosed a history of suicide attempts, anxiety, depression and post-traumatic stress disorder.
On 6 December 2020, the Applicant made a written application for protection for a number of reasons including the fact that he had "worked in law enforcement for 19 years" and had worked with Corrective Services NSW for 12½ years and had only resigned a couple of months prior to 6 December 2020. In addition, the Applicant mentioned that he had death threats made against him and had observed persons whom he had dealt with during his employment over the years. The Applicant requested that he be "placed at the MSPC at Long Bay".
On 17 December 2020, the Applicant disclosed to a psychologist that he was suffering from severe anxiety, depression, post-traumatic stress disorder and panic attacks. He also disclosed multiple prior suicide attempts, significant trauma and that he had been diagnosed with skin cancer requiring a dermatologist to review him every three months.
On 23 December 2020, the Applicant was transferred to Cooma Correctional Centre.
On 6 January 2021, 18 January 2021, 10 February 2021 and 19 February 2021, the Applicant was seen by a psychologist at the Cooma Correctional Centre.
On 27 January 2021, the Applicant was seen at his work location at Cooma Correctional Centre. According to a Case Note, the Applicant "reported ongoing stress in the custodial setting due to his past occupation, he often referred to his interaction with other inmates as 'horrendous' at previous locations, having spent time in isolation away from others". The Case Note continued "He denied any current concerns for his safety at Cooma CC, stating that although he was constantly questioned by other inmates, he felt that he was able to deflect most of the comments and was not under the impression that his safety was in jeopardy".
In a separate interview on 27 January 2021, a Case Note recorded that the Applicant enquired about Reintegration Home Detention and stated that he had a pending appeal "with the intention to hopefully have his sentence reduced to an ICO with HD conditions".
On 19 February 2021, the Applicant was questioned by staff concerning "claims of feeling unsafe in custody". According to a Case Note, the Applicant commented "that he had received threats from inmates, predominantly in Area 1 Cooma CC" including comments "that inmates knew him to be ex-parole". When asked if he required protection, the Applicant declined, saying he "felt safe in Area 2, but not Area 1".
On 21 February 2021, the Applicant was admitted to Cooma Hospital after an altercation with another inmate in Area 2, resulting in the Applicant sustaining a nasal fracture, facial lacerations and an associated diagnosis of anxiety attack.
Investigation of the incident on 21 February 2021 indicated that there had been a physical altercation between the Applicant and another inmate. A Case Note recorded that the Applicant "will be placed on Administrative SMAP based on fears for safety in Area 1, and not suitable to return to Area 2".
On 25 February 2021, the Applicant was transferred to Junee Correctional Centre.
On 26 February 2021, discussion took place with the Applicant concerning his placement in Junee Correctional Centre. The Applicant indicated a preference to be in C Unit, but was held in B Unit.
On 27 February 2021, the Applicant was assaulted at Junee Correctional Centre. On that day, the Applicant was transferred to Wagga Wagga Hospital with a suspected fractured jaw and a CT scan showed a fracture to the nose.
On 1 March 2021, the Deputy General Manager of Junee Correctional Centre recommended a change of placement of the Applicant as a result of his prior employment with it being noted that "It is apparent that inmates are aware that [the Applicant] was previously employed by CSNSW. It is reasonable to assume that his safety is at risk at Junee CC".
On 7 March 2021, the Applicant was transferred to Bathurst Correctional Centre and, on 9 March 2021, he was transferred to Kirkconnell Correctional Centre.
On 12 March 2021, the Applicant was seen for treatment at the clinic at Kirkconnell Correctional Centre for jaw pain and was observed to have visible bruising under both eyes, bruising on his left forearm and a lump of the bottom side of his jaw.
On 25 March 2021, the Applicant was seen by a psychologist and expressed concern about assaults which had taken place at Cooma and Junee Correctional Centres. A Case Note recorded that the Applicant wished to remain at Kirkconnell Correctional Centre.
On 22 June 2021, the Applicant was seen for treatment at the clinic and reported concerns about his skin checks, blurred vision, post-traumatic stress disorder and anxiety/lack of sleep and expressed a desire to see the mental health team.
On 2 July 2021, the Applicant reported that he did not feel that his medication was working and that he was experiencing nightmares and flashbacks daily. He reported trying to implement strategies learned whilst in custody, but these had not been working. He reported constant threats of harm and that he was still recovering from injuries sustained in February 2021.
On 9 July 2021, the Applicant submitted a referral form to seek treatment for memory loss since his assaults.
On 15 July 2021, the Applicant reported concerns about granuloma on his legs, short-term memory loss, jaw pain, blocked and painful sinuses, remaining blurring vision and constant headaches and concerns about skin cancers. In relation to the skin cancers on his body, he reported that he had not seen a doctor since he came into custody despite reporting on intake that he required review every three months. It was noted that, whilst further treatment for a number of issues was needed at another gaol where the patient could have access to specialists, "At this time [the Applicant] is unable to placed [sic] at another goal [sic] due to his previous employment and assaults and death threats".
Between 21 and 27 July 2021, whilst housed at Kirkconnell Correctional Centre, the Applicant stated that he was "feeling highly anxious about recent events" that he had reported. The Applicant was offered a referral to a psychologist and it was noted that there was a current referral for that purpose.
On 11 August 2021, the Applicant was seen by a psychiatrist. The psychiatrist noted longstanding depression and anxiety, post-traumatic stress disorder type symptoms and issues with memory "likely due to recent concussion and ongoing anxiety/safety issues". The Applicant reported further threats, nightmares, flashbacks and insomnia since being transferred to Kirkconnell Correctional Centre. The dosage of his anxiety and depression medication was increased and he was commenced on medication for post-traumatic stress disorder with the psychiatrist requesting a booking for a follow-up psychiatric review in December 2021.
On 12 August 2021, the Applicant was placed on a wait list to see a psychiatrist for "routine follow up".
As noted earlier, the Crown did not dispute the events summarised in this part of the judgment, all of which were founded upon the affidavits and records of Corrective Services NSW and Justice Health. Submissions of the Applicant
Ms Bashir SC submitted that this Court has flexibility to receive new evidence where it was necessary to do so in order to avoid injustice: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10]. Reliance was placed upon authorities as to when evidence of post-sentence events may be received with particular reliance being placed upon R v Keir [2004] NSWCCA 106 at [65]-[74], [77]-[81] and Springer v R (2007) 177 A Crim R 13; [2007] NSWCCA 289 at [2], [29]-[32], [37].
It was submitted that the Applicant was not in custody at the time of his sentencing and thus the sentencing Judge was precluded from a true appreciation of the circumstances in which he would serve his sentence. Although his Honour referred (ROS [7] at [32] above) to the potential for hardship, this was as far as his Honour was able to state at the time of sentencing.
It was submitted that the evidence adduced in the affidavits of the Applicant and Mr Lenz was fresh evidence as all of the events disclosed in the affidavits have occurred since the Applicant was taken into custody after sentence was passed.
Ms Bashir SC argued that the Applicant's period of incarceration has been, and may be expected to be, more onerous than the expectation of "a degree of harassment" (as stated by the sentencing Judge at the time of sentence) so that the circumstances were such as to justify a reduction in the sentence imposed: Khoury v R [2014] NSWCCA 272 at [25].
It was submitted that the evidence disclosed events far more serious than a degree of harassment, extending to two serious assaults which resulted in injuries and attendance for hospital treatment each time. There have been ongoing threats with the Applicant experiencing fear, anxiety and largely untreated mental health conditions. It was submitted that the Applicant had also spent periods in segregation which involved significantly onerous conditions beyond protective custody.
It was submitted that what has occurred to the Applicant must be seen in light of his considerable mental health issues in relation to which, on the evidence, he remained on a wait list to see a psychiatrist later in 2021.
Senior Counsel for the Applicant submitted that a lesser sentence is warranted in law. It was submitted that several of the offences would not have warranted a custodial sentence (if sentence was passed for them separately), given the Applicant's prior good character and what was said to be the peculiar circumstances of the offending.
Senior Counsel for the Applicant submitted that the conditions of the Applicant's custody, over the months since sentence had been passed, invoked consideration of an intensive correction order on resentence. Reliance was placed upon Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at [21]-[64] with respect to resentencing the Applicant having regard to time already spent in custody as part of the sentence.
It was submitted for the Applicant that the Court should request a sentencing assessment report as a preliminary step to consideration of the direction that the sentence be served by intensive correction order. Submissions for the Crown
The Crown acknowledged that the general rule is that this Court will not receive evidence of events occurring after sentence unless it is necessary to avoid a miscarriage of justice: Betts v The Queen at [10].
To the extent that the Applicant sought to rely upon R v Keir, the Crown submitted that decision dealt with circumstances where post-sentence events demonstrated that the exercise of sentencing discretion had been "undermined or thwarted", but that this was not the position in the present case.
The Crown submitted that the sentencing Judge had given due consideration to the prospect of hardship being experienced by the Applicant because of his former occupation. It was noted that the sentencing Judge was not required to identify a specific allowance for hardship in custody: Hoskins v R [2016] NSWCCA 157 at [49].
Whilst the reality of the conditions experienced by the Applicant since sentence were unfortunate, the Crown submitted that they did not travel so far beyond what was envisaged at sentence that it can be said that the "very basis upon which the sentencing discretion was exercised had been undermined or thwarted": R v Keir at [71]. The circumstances were not such as to constitute a miscarriage of justice.
It was submitted that the second ground of appeal should be dismissed. Decision
The sentencing Judge had regard to the potential for the Applicant to experience a greater degree of hardship in custody as he was a former law enforcement officer with the prospect that this may lead to protective custody (see ROS[5]-[7]) at [32] above). Although there was no evidence concerning the potential circumstances of the Applicant's custodial conditions (as he had not been in custody), his Honour noted his own experience and referred, as well, to Jones v R (1985) 20 A Crim R 142 at 153, where mention was made of the anticipated greater hardship in custody for a former police officer.
It was not argued in this Court that error was demonstrated in his Honour's approach to this issue. Nor could it have been given his Honour's entirely appropriate consideration of the prospect of greater hardship for the Applicant in custody.
The safety of a person being sentenced to a term of imprisonment is a relevant matter to take into account when passing sentence: York v The Queen (2005) 225 CLR 466; [2005] HCA 60 at [21]-[22], [38].
In York v The Queen, Gleeson CJ (at [5]) stated that "For some offenders, prisons are dangerous places" and it "is the responsibility of the executive branch of government, in whose custody prisoners are placed, to take reasonable steps to minimise the danger". Gleeson CJ observed (at [5]), as did Hayne J (at [37]) that any attempt to measure the extent of the risk of harm to the sentenced person in prison was not likely to succeed.
The practical reality of prisons was noted, with a reference to York v The Queen, in New South Wales v Bujdoso (2005) 227 CLR 1; [2005] HCA 76, where the Court said at [44]: "In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners."
In York v The Queen, McHugh J observed (at [32]) where a threat exists (as is often in the case of informers and sex offenders), recommendations that the sentence be served in protective custody will usually discharge the sentencing Judge's duty.
In the present case, the sentencing Judge had regard to the potential for greater hardship because of the Applicant's background as an officer of Corrective Services NSW, but did not seek to quantify or assess the level of risk to which the Applicant may be exposed. For reasons explained in York v The Queen, it was not necessary nor possible to attempt any such quantification of risk.
It is necessary to turn next to the application to adduce further evidence concerning the Applicant's post-sentence custodial experiences before this Court. In circumstances where the first ground of appeal has been dismissed, there is no question of that evidence being received "on the usual basis" for the purpose of resentencing under s.6(3) Criminal Appeal Act 1912.
In Betts v The Queen, French CJ, Kiefel, Bell, Gageler and Gordon JJ said at [10] (emphasis added and footnotes omitted): "Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice."
It is the last-mentioned principle which the Applicant seeks to invoke in the present case.
This Court has been cautious in its approach to receipt of evidence concerning post-sentence events with it being said that, absent the demonstration of error leading to resentencing under s.6(3) Criminal Appeal Act 1912, rare or exceptional circumstances must exist before the evidence is received and acted upon. These statements reflect the fact that the Court of Criminal Appeal is a court of error, with post-sentence events being a matter for the Executive Government: R v Munday (1981) 2 NSWLR 177 at 178.
In Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, Simpson J (Davies J and Grove AJ agreeing) said at [110]: "A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177."
Simpson J observed that there were two categories where evidence of post-sentence events had been received, namely, where assistance had been provided to prosecution authorities and in the case of additional medical evidence: Khoury v R at [111]-[115]. Simpson J observed at [129]: "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 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). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)."
With respect to assistance to authorities after sentence has been passed, it is noteworthy that provision is made in s.135(4) and (9) Crimes (Administration of Sentences) Act 1999 for "post-sentence assistance" to be taken into account by the State Parole Authority in determining whether an offender ought be released on parole. Section 135(9) defines "post-sentence assistance" as meaning "assistance in the prevention, detection or investigation of, or in proceedings relating to, any offence, provided by an offender to law enforcement authorities after the offender was sentenced and that was not taken into account or considered by the sentencing court". This provision is a specific enactment to reflect the capacity of a statutory authority (and not a Court) to have regard to post-sentence assistance. Although this provision has no application to the present case, its existence serves to emphasise the distinction expressed by Street CJ in R v Munday concerning post-sentence conduct.
The exceptional nature of this Court's capacity to receive evidence of post-sentence events to avoid a miscarriage was emphasised in R v Keir, where the Court (Dunford, Greg James and Buddin JJ) said at [71]: "Those remarks illustrate the limited extent of the exception to the general rule that evidence of events occurring post-sentence is not admissible. Evidence of matters occurring subsequent to sentence is admissible however if it is capable of demonstrating that the very basis upon which the sentencing discretion was exercised has been undermined or thwarted. The exception is however strictly circumscribed and should generally be limited to cases of the kind to which we have referred."
In Springer v R, McClellan CJ at CL referred (at [3]) to examples of exceptional cases where evidence of post-sentence conduct had been received: "However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v R [2006] NSWCCA 261 at [8]-[12] (see also Perkins v R [2007] NSWCCA 80, (2007) 169 A Crim R 516 at [25]-[27]). Examples include: · Evidence which shows that the applicant's treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted. · Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233). · Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Bailey (1988) 35 A Crim R 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing (Iglesias). · Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]). · Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. (R v Swindale, Court of Criminal Appeal, 22 June 1998, unreported; R v Goodwin (1990) 51 A Crim R 328). · Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them (R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46])."
Recently, in Toller v R [2021] NSWCCA 204, the Court (Beech-Jones J, Macfarlan JA and Davies J agreeing) summarised the applicable principles (at [20]-[22]): "20 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 R (2016) 258 CLR 240; [2016] HCA 25 at [10]; 'Betts'). 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). 21 The material sought to be relied upon by the applicant constitutes fresh or new evidence in the sense that it was not material that was adduced before the sentencing judge. The receipt of such evidence is generally governed by the principles just noted. Hence, one circumstance in which such evidence is received is the so‑called usual basis' which concerns evidence received in relation to this Court's 'independent exercise of [the sentencing] discretion' (Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]). However, this is confined to cases where House v The King error has been shown, which is not this case. 22 Otherwise, it has been accepted that in some circumstances this Court can receive new evidence where it is necessary to avoid a miscarriage of justice (Betts at [10]). The circumstances in which evidence not adduced at the time of the sentencing hearing can be adduced in this Court, other than on the 'usual basis', are very limited, although not necessarily closed. Two particular categories of such evidence are evidence that should have been, but was not, adduced because of incompetent representation (see for example Rae v R [2019] NSWCCA 284) or concerns medical conditions that the applicant was subject to at the time of sentencing but was not revealed to the sentencing court (see Hoang v R [2020] NSWCCA 324 at [16] to [22])."
In summary, the Applicant seeks to invoke these principles, arguing that: 1. there is fresh evidence which shows that his treatment in custody has been quite different to the expectation at the time of sentence; 2. there is fresh evidence of events occurring after sentence which provides the basis for a full appreciation of the facts in existence at the time of sentencing, being the reality and not just risk of harm resulting from the Applicant's former occupation.
Two recent decisions of this Court have considered factual circumstances with some bearing on the present case. They concern attempts to rely upon post-sentence evidence of harsher prison conditions affecting the applicant including exposure to violence in a custodial setting.
In Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304, this Court (Bathurst CJ, Hoeben CJ at CL and Fagan J agreeing) held that the applicant would not be permitted to rely on additional evidence about the conditions of his custody to demonstrate that the sentencing Judge erred in assessing what the likely conditions of custody would be. The Court held that the evidence intended to be relied upon by the applicant did not demonstrate that the sentencing Judge failed to appreciate the likely conditions of custody at the time of sentence. Rather, the evidence demonstrated that the conditions of custody had changed over time, as a result of decisions made by the Executive so that the evidence was irrelevant.
Given the issues considered in Baladjam v R, it is appropriate to set out parts of the Chief Justice's judgment. His Honour outlined the principles to be applied (at [221]-[227]): "221 The principle which the applicant sought to invoke in support of his application to adduce the evidence is commonly said to be derived from what was said by King CJ in R v Smith (1987) 44 SASR 587 (R v Smith), where his Honour explained the basis on which evidence can be led of events occurring post-sentence on grounds other than for the limited purpose of resentencing. His Honour made the following remarks at 588: 'While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.' 222 In Turkmani at [66], Beech-Jones J helpfully summarised examples where the principle has been held to apply: '[66] Three examples of the application of this principle are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (eg HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ('Iglesias'); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ('Springer'). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id).' 223 In that case, the Court was prepared to apply the principle where, although the sentencing judge received no assurances as to the standard of medical treatment the offender would receive in prison, the sentencing judge was entitled to assume, and probably did assume, that the offender would receive a reasonable level of medical support. In the circumstances, evidence that he had not was held to be admissible. 224 Nonetheless, as was made clear by Simpson J in Khoury, the principle in R v Smith does not extend to permit the admission of evidence of circumstances which did not exist at the time sentence was passed. This is because a sentencing judge is entitled, and indeed, bound to sentence on the facts disclosed in the evidence before him or her. If a particular fact or circumstance did not exist at that time, then there is no error from which an appeal can lie. The principle was explained by Simpson J in Khoury as follows at [110]-[113]: '[110] A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. [111] The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v The Queen (unreported, Court of Criminal Appeal, NSW, No 60105 of 1991, 15 July 1992); JM v The Queen [2008] NSWCCA 254; R v Willard (2001) 120 A Crim R 450; Munday. [112] The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing. [113] Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588; 27 A Crim R 315 at 316. 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.' 225 The principle has been held not to apply when custodial conditions change as a result of executive action: R v Munday [1981] 2 NSWLR 177 at 178. 226 I do not think that anything was said in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 to the contrary to these propositions. That case involved the issue of whether evidence could be led on resentence which was contrary to the manner in which the case was conducted at the original sentencing hearing. In that case, the Court stated at [14] that injustice does not necessarily arise 'by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence'. 227 As I have indicated at [216] above, the applicant did not dispute these propositions."
The Chief Justice then turned to apply these principles to the circumstances of that case ([228]-[232]): "228 The difficulty which confronts the applicant is that the great bulk of the additional evidence relates to circumstances which came into existence at the time he was reclassified as an EHRR AA inmate. That is clear from those parts of the affidavit to which I have referred at [159]-[196] above. It is also clear from his affidavit that there was a significant change in custodial conditions after Mr Touma and Mr Lodhi left the HRMU, which was after the applicant was sentenced. The applicant stated in his affidavit that Mr Lodhi was moved from the HRMU in about 2012, as I have set out at [175] above. Further, the applicant's complaints about the effect of his reclassification relate to events which occurred in 2016 and 2017, far removed from the period in which he was sentenced. As I have pointed out at [210]-[214] above, the material annexed to Mr del Monte's affidavit relates to the period from 2015 onwards. 229 So far as access to education is concerned, the applicant stated that, until 2012, he was unable to enrol in any education course due to his ongoing court matters. He also said that, in 2012, shortly after Mr Lodhi left the HRMU, changes were made regarding long-distance education. Once again, the evidence does not seem to relate in any way to the conditions which existed at the time of sentence. 230 In relation to the absence of a deradicalisation programme, the sentencing judge did not take that into account one way or another. Unlike the situation in Turkmani, it could not be assumed that the judge sentenced on the basis of a belief that a deradicalisation programme was available. So far as his physical disability was concerned, the sentencing judge expressly took that into account, as I have noted at [63] above, and stated that this would make his incarceration 'more difficult'. 231 The only two areas in which the applicant directly challenged in this Court the accuracy of what the sentencing judge had been told about the likely conditions of his incarceration were the number of permitted visits per week (he had been allowed only one rather than two) and the use of a gymnasium (this was not available to him). It should be noted that Mr Hovey's evidence before the sentencing judge on these subjects was a description of the conditions under which Mr Lohdi was serving his sentence, as a guide to the conditions likely to apply to the applicant: see [65] above and the remarks on sentence at [154]-[158]. Mr Hovey's evidence was not challenged on either issue, although the applicant had been at the HRMU for some time prior to the sentencing hearing. In the circumstances, as a matter of discretion, I would not admit this evidence: cf Khoury at [113], [117]. 232 In summary, what the evidence establishes, subject to the two exceptions to which I have referred, is not that the sentencing judge failed to appreciate the conditions of incarceration as they existed at the time of sentence, but rather that those conditions have changed as a result of actions by the executive. In these circumstances, the evidence does not fall within the principle set out in R v Smith. The evidence is thus irrelevant and should be rejected."
There is another decision of this Court which is even closer to the circumstances of the present case.
In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330, the Court (Beazley P, Schmidt and Button JJ agreeing) rejected a ground of appeal that the exercise of sentencing discretion miscarried because it was not fully apparent to the Court at the time of sentencing how harsh the Applicant's conditions of custody were likely to be. The Court noted (at [376]) a submission that there was evidence of "deplorable mistreatment" of the applicant whilst he had been in custody with it being submitted that this evidence may, exceptionally, be taken into account without the need for establishment of error.
The Court said (at [383]) that, in determining this ground of appeal, it was important to focus upon what the sentencing Judge knew, predicted, and took into account at the time of imposition of sentence. The sentencing Judge in that case had outlined a number of aspects and took into account "that the offender is likely to suffer harsher conditions, including fear for his safety, when serving the sentence to be imposed".
After setting out an extract from the sentencing remarks, the Court said at [384]-[387]: "384 Turning to our determination of this question, it is quite true that there is an exceptional class of case in which this Court has reduced sentences based upon subsequent events to do with topics that were imperfectly known to a sentencing judge. Examples of the subject matter have included subsequently developing illness (see, for example, Smith and Bailey v R (1988) 35 A Crim R 458); the provision of assistance to authorities in the prosecution of co-offenders (see JM v R [2008] NSWCCA 254); and the receipt of inadequate medical care and attention in custody (see, for example, R v Keir [2004] NSWCCA 106 and Turkmani v R [2014] NSWCCA 186). Whilst caution has been expressed about expanding those categories (see Cassar v R [2013] NSWCCA 147 at [51]), they undoubtedly exist, and are not necessarily closed. 385 So much may be accepted. But here, reading the entirety of the extract from the remarks on sentence, we consider it plain that the sentencing judge was well aware of the potential for the applicant to be the subject of serious verbal and physical abuse in custody. We say that not only because of what his Honour actually said, but also because, as our discussion of other grounds of appeal have shown, his Honour was perfectly aware that there had been an enormous amount of publicity, much of it vitriolic, about the proposition that the applicant had sexually assaulted many young girls. We do not accept that his Honour was under any misapprehension about what was very likely to happen to the applicant in custody. Nor do we accept that the sentence imposed by his Honour fails to reflect those eventualities. 386 What has happened to the applicant since his imprisonment, as demonstrated by the undisputed affidavit evidence, is unquestionably to be condemned. But a fair reading of what his Honour said about the topic, in the context of the proceedings as a whole, is that exactly what his Honour expected would happen has indeed happened. In those circumstances, there is no room for application of the exceptional basis for intervention relied upon in support of this ground of appeal. 387 Although leave should be granted to argue it, we do not uphold this ground of appeal."
The approach of the Court in Hughes v R is of assistance in determining this application.
It is useful to repeat, at this point in the judgment, what the sentencing Judge said concerning the Applicant's past employment and its relevance to his anticipated custodial experience (ROS[7]): "I do not, as he surely cannot, ignore the lived experience of custody. Any former law enforcement officer going into custody will, and I make this finding based upon decades of experience rather than direct evidence, involve, potentially, a greater degree of hardship in serving that sentence than might otherwise be the case. It is notorious that former law enforcement officers may, if their status becomes known, be subject to a degree of harassment directed at them by fellow prisoners. This can lead to, if necessary, protective custody conditions to be put in place and, given that he has not previously served custody, it is impossible to meet the requirements sometimes referred to by the Court of Criminal Appeal for there to be evidence of this fact; see Jones v R (1985) 20 A Crim R 142 at 153. But that fact should not and cannot preclude the imposition of penalties which are proportionate to the objective seriousness of what was done by the offender."
His Honour drew upon his very considerable experience of the criminal justice and correctional systems in addressing these issues on sentence. Express reference was made to Jones v R in this respect. This was an important factor to be taken into account on sentence in this case.
The sentencing Judge did not proceed upon the basis that there would be some form of guarantee of the safety of the Applicant in custody if certain measures were taken with respect to him. As noted in York v The Queen (see [119] above), the sentencing Judge was not in a position to make an assessment of the actual risk to which the Applicant would be exposed for the purpose of sentence.
The sentencing Judge had regard on sentence to the former occupation of the Applicant and the potential for that background to render the conditions of his custody more onerous. The evidence which is sought to be tendered demonstrates that there have been adverse incidents in custody affecting the Applicant.
Although the events affecting the Applicant since December 2020 have been regrettable in a number of respects, I am not persuaded that it can be said (using the words in R v Keir) that the approach taken by the sentencing Judge has been undermined or thwarted so as to warrant the reception of this evidence in this Court. This is not a case where there is a different state of affairs which has occurred to that which was taken into account at the time when sentence was passed. Rather, the factors which were taken into account as rendering the Applicant's custodial experience more onerous have come to pass. As in Hughes v R, these features were taken into account on sentence by the sentencing Judge.
In considering Ground 2, I have taken into account as well the submission made for the Applicant that the medical treatment available to him in custody has fallen significantly short of that which the sentencing Judge anticipated at the time of sentence. The sentencing Judge said, in this respect, that "It is possible that he will receive some treatment in custody, but he will have to join a queue" (ROS [37] at [36] above).
This is not a case where the sentencing Judge proceeded upon the basis that a range of medical treatment would be available readily to the Applicant in custody and that has not occurred. Rather, his Honour's approach reflected a practical understanding of the form of medical treatment available for persons in custody and the fact that it could not be equated with medical treatment available in the community.
What is revealed in the additional evidence is that the Applicant has been seen by psychologists and nurses from time to time and, more recently, a psychiatrist, with further treatment being scheduled for him. It is, of course, the responsibility of Justice Health to provide health services to persons in custody: s.236A Crimes (Administration of Sentences) Act 1999.
I am not satisfied that the fresh evidence demonstrates a miscarriage of justice so that it would be appropriate for this Court to revisit the question of sentence of the Applicant.
It is appropriate to refer to Hughes v R for another purpose. In concluding the judgment, the Court said at [388]-[390]: "388 Nevertheless, it should be observed that the affidavits received from both parties raised disturbing matters as to the conditions under which the applicant is being kept in custody. The matters there revealed ought, in our view, to be considered by relevant authorities. 389 If the applicant were to be resentenced, they would provide a basis upon which a conclusion might be reached that some lesser sentence should be imposed upon him, as the Crown properly accepted. 390 That information, described by the Crown in submissions to have disclosed a number of disturbing incidents which have occurred while the applicant has been held in custody which should not have happened, have understandably led him to have fears about the conditions under which he is incarcerated. Those incidents having been ventilated in open court, as they were, raise matters of considerable, obvious, public interest which we consider ought to be referred by the Crown to the Minister and the Commissioner of Corrective Services (NSW)."
It is appropriate that the events disclosed in the evidence placed before this Court be referred to the Commissioner of Corrective Services for the taking of any necessary action during the balance of the Applicant's sentence.

Conclusion

The Applicant was sentenced for serious domestic violence offences committed against a number of victims. No error has been demonstrated in the approach of the sentencing Judge with respect to sentence.
For the reasons contained in this judgment, I am not persuaded that the fresh evidence relied upon by the Applicant concerning post-sentence events should be admitted in this Court. The Applicant has not demonstrated that it is necessary to receive this evidence to avoid a miscarriage of justice.

Orders

I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal against sentence dismissed.
LONERGAN J: I agree with Johnson J.
DHANJI J: Subject to one minor matter, I agree with the orders proposed by Johnson J for the reasons his Honour gives. With respect to ground 2, whether or not it is apt to describe this Court as a "court of error", it remains the case that 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": Toller v R [2021] NSWCCA 204 at [20], reproduced by Johnson J at [132]. While the circumstances in which fresh or new evidence will be admitted other than on the usual basis are not necessarily closed (Toller v R at [22], also reproduced by Johnson J at [132]), as Johnson J's comprehensive discussion demonstrates, they do not extend to the circumstances of this case. As his Honour also makes plain, this conclusion is in no way a judgment on the acceptability of the treatment of the applicant in custody.

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: 29 December 2021

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