Toller v R

Background

1. As I will explain, the sole ground of appeal concerns the impact on the applicant of the conditions of his incarceration imposed as a result of the COVID-19 pandemic. In light of that complaint, it is only necessary to briefly describe the circumstances of the applicant's offending and the sentencing judge's findings on sentence.
2. The applicant was born and raised in the United Kingdom. He came to Australia in 2012 when he was aged 29. He had a relatively privileged upbringing in the United Kingdom. However, in the immediate years prior to his departure for Australia his partner had died suddenly from a cerebral haemorrhage and he developed a gambling problem.
3. The index offences were committed between 2014 and 2017. They involved the applicant fraudulently obtaining $1,744,220.00 from 14 victims with the amount obtained from each victim being the subject of a separate charge. The agreed facts placed before the sentencing judge stated that the applicant targeted the victims because he knew from his time of working for another fraudulent investment company that they had lost significant amounts and were desperate to recoup that money. He also knew that the victims were unsophisticated and some of them were elderly.
4. According to the agreed facts the applicant induced each of the victims to "invest" with an endeavour which he described as "Palamoun Investments" on the promise of quick and high returns. In May 2014, the applicant had Palamoun registered as a finance investment service although it did not have an Australian Financial Service licence. In fact, the money that was supposedly "invested" was used by the applicant for gambling and his personal expenses.
5. The agreed facts stated that each of the victims was induced to invest by the prospect of recouping monies they had lost by false promises of high returns, which in some cases were "guaranteed". In pursuit of the fraud, the applicant created various brochures, investment contracts, receipts and investment statements purporting to record the receipt of the amounts invested and the accrual of high returns. Some of the material is relatively vague about the form of investment, while some of it alludes to an investment in sports betting and sports arbitrage which is presumably a reference to investment that takes advantage of small differentials in the odds offered by betting agencies for sporting events.
6. As noted, the amounts invested and lost varied between as much as $10,000 for one investor to $400,000 for another. One of the investors was 84 years of age when he provided funds, and three were in their 70s.
7. In June 2017, police executed a search warrant at Palamoun Investments business premises following which the applicant was interviewed and arrested.
8. In his sentencing judgement, Judge Norrish QC described the facts of the offences. His Honour noted that the applicant had convictions in Australia for driving offences committed in 2014 and 2015. This meant that, insofar as he committed the index offences between 17 February 2015 and 5 February 2016, they were committed while he was subject to either a Community Service Order or good behaviour bond attached to a suspended sentence. His Honour also noted that a total amount of just under $40,000 was repaid between two victims. However, his Honour rejected any characterisation of them as "legitimate returns on their investments", but referred to them as payments made only after pressure from the investors.
9. Judge Norrish QC accepted that the offences involved a "considerable degree of planning and organisation". However his Honour considered that was better considered as a circumstance of the offence rather than a discrete aggravating factor under s 21A(2)(n). His Honour accepted the victims suffered substantial losses (s 21A(2)(g)) as well as emotional turmoil. His Honour did not accept the applicant was of good character at the time of his offending but did accept that he had good prospects of rehabilitation. His Honour made a finding of special circumstances by reason of the applicant's need for assistance in adjusting to community living and receive supervision as part of his rehabilitation.

The Appeal

1. The applicant was unrepresented on this application. His grounds of appeal expressly state that he does not "wish to argue" with the length of the sentence as originally imposed. However, he contended that: "The circumstances of my incarceration have changed dramatically. At the time of my sentencing in April 2018, there were no restrictions in place around Corrective Services NSW and external leave programs that would be currently available to me COVID-19 has obviously affected my path to rehabilitation."
2. The balance of the grounds of appeal identify the particular respects in which the applicant's incarceration has been affected by restrictions imposed as a consequence of the pandemic. In particular, he notes that he now cannot complete external leave programs which he feels are necessary for his rehabilitation. He also states that he is cut off from his family in the United Kingdom and South Australia. He submitted that he has an "exemplary record while being incarcerated with no charges or adverse case notes" and that he is "simply wishing to be considered for release earlier than my current earliest release date".
3. In support of his application, the applicant swore two affidavits, one dated 24 March 2021 and one dated 11 May 2021. In his affidavit of 24 March 2021, the applicant expanded upon the statements in his grounds of appeal. He annexed documents demonstrating the programs he has completed in gaol, his work performance and the situation with his relatives. In his affidavit of 11 May 2021, the applicant annexed various case note reports which support his description of his time in custody. A review of those case notes reveals that his conduct has been generally exemplary. As at May 2020, when pandemic restrictions had been in force for some months, he was expressing concern about the health of one of his family members who lives in South Australia. By September 2020, he was becoming distressed, especially about the necessity to complete programs. Nevertheless, he continued and completed a rehabilitation program.
4. In his written and oral submissions, the applicant acknowledged that this Court's role was to ascertain error on the part of the sentencing judge. He nevertheless pointed to his C3 gaol classification as one which would ordinarily result in access to external leave programs, but that is denied due to the pandemic restrictions.
5. The respondent submitted that nothing raised by the applicant empowers this Court to intervene and re-sentence the applicant. For the reasons that follow, that submission must be accepted.
6. 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).
7. 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.
8. 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]).
9. However, as a general proposition, evidence concerning society-wide impacts affecting the conditions in custody that occur after the time that the prisoner was sentenced has not been received and that has not been accepted as a basis for interfering with a sentence. Thus, in Cabezuela v R [2020] NSWCCA 107 at [131] to [132], Walton J, with whom Hoeben CJ at CL and Harrison J agreed, said after reviewing (at [129] to [130]) some of the authorities just noted: "Here, the evidence of COVID-19 was directed to the additional burden that the appellant may suffer in custody due to his age and health, a factor (in terms of age and health) which was given considerable weight by the sentencing judge. The new evidence relied upon by the appellant may not be utilised to impugn the sentencing judgment which is not otherwise susceptible to challenge on the manifest excess grounds. There is no challenge to the sentencing judge's assessment of the subjective factors and I have found that the sentence imposed was, even having regard to a strong subjective case, not open to challenge on a manifest ground. The third and related consideration then is that, this is not a case where the receipt of the material in question may have impacted upon the sentence imposed upon the appellant. This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system. Here, as I have found, the nature of the offences and the offending are of such seriousness that, even if substantially greater weight were given to these subjective factors of age, infirmity of health and additional custodial restrictions such as limitations on contact and exercise due to the effects of COVID-19, no different sentence would properly follow."
10. This passage is consistent with Borg v R; Gray v R [2020] NSWCCA 67 at [46] to [48].
11. As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, Cabezuela confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender's conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic.
12. Accordingly, I propose that the application for leave to appeal be refused.

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: 27 August 2021