Turkmani v R

The offences 7The following is taken from the agreed statement of facts that was before the sentencing judge. 8Shortly after 4.30pm on 8 October 2010 the applicant and a female companion purchased a number of items from a laboratory supply shop in Mascot. One of the items they purchased was a "condenser", as well as some hydrochloric acid and sulphuric acid. 9The applicant's companion then drove him from the shop. A marked police vehicle followed their vehicle. The applicant was in the passenger seat and was observed to handle the items. The vehicle was then parked in the driveway of the applicant's grandmother's house in Chatswood. The applicant lived nearby. The applicant and his companion left the vehicle and were asked by police to wait outside. They ignored the request and walked inside the house. The officers looked inside the vehicle and saw the laboratory items including the condenser. The police knocked on the door of the applicant's grandmother's residence. They were told to leave. Nevertheless, the police waited at the premises while a search warrant was sought. 10Unknown to the police, the applicant left his grandmother's residence and went to his house. Some time later, the police and nearby residents noticed smoke coming from the applicant's house. It had a distinctive chemical smell. The police looked over a fence. They saw the applicant and a number of other males standing around a large drum in the back of his premises, placing items on a fire. 11A few hours later the police obtained search warrants to search the applicant's grandmother's residence, the vehicle in her driveway and the applicant's premises. 12The search of the applicant's grandmother's residence revealed nothing of interest. The search of the vehicle parked in the driveway revealed a number of items of laboratory equipment including the condenser, as well as a foam box containing a bottle of hydrochloric acid and a bottle of sulphuric acid. The applicant's fingerprints were found on the bottle of sulphuric acid. An expert witness engaged by the Crown stated that sulphuric acid can be used to reduce liquid methylamphetamine to a solid form. The statement of facts also recounted that hydrochloric acid can be used in the manufacture of methylamphetamine in that it could "be used to fit joints on glassware used in the process of illicit manufacture". 13The search of the applicant's premises revealed a number of items relevant to the manufacture of methylamphetamine. In the laundry the applicant's fingerprints were found on a bottle of methylene chloride (or "DCM"). The Crown expert advised that methylene chloride is a solvent that can be used as part of the process used to make a solution called "L-PAC", which is a precursor of amphetamine. Some L-PAC was found on a funnel in the applicant's premises. The funnel bore the applicant's fingerprints. The Crown expert also stated that the mere presence of L-PAC did not of itself suggest that the process of manufacture had taken place at the applicant's house. 14Also found in the same bag in the laundry as the DCM was a bottle of toluene and a bottle of acetone. The Crown expert advised that toluene could be used in the manufacture of methylamphetamine in the same manner as DCM and that acetone can be used to remove impurities in the finished product. 15In the applicant's bedroom a flask was found with a separating funnel attached. The funnel contained a liquid which when analysed was found to contain, inter alia, pseudoephedrine. The applicant's fingerprints were found on the flask. Also found in the applicant's bedroom was a print-out of a two page document supplied by "Chemsupply.com.au" which listed chemicals and their prices, and a so-called "ezy" test which can be used to test the quality of a drug. 16The police also searched the garden shed in the backyard of the applicant's premises. They found a publication entitled "Amphetamine Synthesis" in the garden shed. Eight fingerprints left by the applicant were found on the document. A number of bottles of glucose were also found. The Crown expert advised that they could be used in the preparation of a "precursor" to the manufacture of pseudoephedrine known as "L-PAC". 17In the backyard the police found a large amount of broken glass and glass fragments that appeared to relate to scientific apparatus. They also found a smashed laptop. An analysis of the hard drive revealed that it had been used to access a number of web sites relevant to establishing the process of illicit manufacture of drugs. 18The applicant was originally charged with knowingly take part in the manufacture of a prohibited drug. Although various representations were made, it was only on the date that the matter was listed for trial that the Crown accepted that charge could not be made out. Instead a fresh indictment was presented containing the first and second offences. This meant that some care had to be taken in dealing with the above facts as they appear to outline much of the evidence that was sought to be relied on in support of the original charge. I will return to this in dealing with grounds 3 and 5 of the appeal.

The sentencing judgment 19In the sentencing judgment his Honour identified the maximum penalties for each of the two offences and then described the facts of each offence in some detail. His Honour then addressed the sentencing task as follows. 20First, his Honour addressed the circumstances of the second offence. I will return to discuss this when addressing ground 5 of the appeal. It suffices to state that one of the complaints is that his Honour sentenced the applicant for this offence in a manner inconsistent with the principles stated in R v De Simoni [1981] HCA 31; 147 CLR 383 ("De Simoni"). 21Second, his Honour addressed the objective seriousness of the first offence. I will return to address this, as the manner in which his Honour did so is the subject of ground 3 of the appeal. Part of the complaint with this ground is that his Honour also proceeded in a manner inconsistent with De Simoni. 22Third, his Honour addressed the evidence of psychological impairment as set out in a report from a psychologist, Mr Tim Watson-Munro. His Honour accepted that the applicant had depression and anxiety and considered it "as part of the general mix of subjective circumstances". However, his Honour did not consider that there was any causal link between those conditions and the applicant's offending. 23Fourth, his Honour addressed the applicant's subjective circumstances. The applicant was thirty-five years of age at the time of sentencing. He left school at Year 11. He had an interrupted work history that included stints as a foreman, tiler, and in the smash repair industry. His Honour noted that the applicant's father had died in 2012 after a battle with emphysema and cancer, and the applicant's mother is struggling in the wake of her husband's death. The sentencing judge also addressed the ongoing effects of a motorcycle accident in November 2009 which led to a permanent injury to the applicant's knee. This topic is relevant to ground 2 of the appeal. I will return to address it. 24Fifth, the sentencing judge addressed the applicant's criminal record. His Honour noted that the applicant had an extensive criminal history dating back to 1996, which included convictions for assault. Of particular significance were two sets of convictions concerning the manufacture or supply of prohibited drugs. On 25 March 2002 the applicant was convicted of knowingly taking part in the manufacture of a commercial quantity of a prohibited drug. This offence was committed in 1997. Also on 25 March 2002 he was convicted of manufacturing a prohibited drug. This offence was committed in June 2000. He received substantial custodial sentences for those offences. Further, in 2007 the applicant was convicted of, inter alia, supplying a prohibited drug. For that offence he was sentenced to two years imprisonment with a non-parole period of 18 months. He was released on parole for that and other offences on 16 September 2008. 25Sixth, the sentencing judge indicated that he would take into account the expressions of remorse that the applicant had made to others. 26Seventh, his Honour addressed the applicant's prospects of rehabilitation. His Honour noted the applicant's persistent criminal history. Nevertheless, his Honour found that there were "prospects [that] the offender's rehabilitation will be enhanced". On this basis, his Honour found "special circumstances". 27Eighth, his Honour noted the history of the matter, including the timing of the entry of pleas. His Honour allowed the applicant the full discount for the utilitarian benefit of the plea to the first offence (ie 25%). For the second offence his Honour stated that it would be a discount "approaching the top of the range". 28Ninth, his Honour addressed a submission that, as both offences could have been dealt with summarily, a lesser sentence should be imposed. His Honour rejected that submission, concluding that it was unlikely that the Crown would have elected to have the offences dealt with in the Local Court. 29Tenth, his Honour took into account the onerous nature of the bail conditions imposed upon the applicant, namely that he was required to report daily and observe a curfew. 30Eleventh, his Honour addressed the totality principle and the appropriate approach to cumulating sentences. Ultimately no complaint was made about this aspect. 31Twelfth, for the reasons already indicated, his Honour addressed the need to backdate the sentence.

Grounds 1 and 4 32At the hearing of the appeal, the Court was advised that these grounds were not pressed.

Ground 5: De Simoni and the first offence 33At the hearing of the appeal, Counsel for the applicant, Ms Francis, sought leave to add a further ground to her client's notice of appeal. The Crown did not object and leave was granted. It is convenient to deal with it first. The additional ground alleged that the sentencing judge erred by sentencing the applicant in respect of the first offence on the basis of facts which give rise to the more serious offence of intending to pervert the course of justice. 34As noted, this ground seeks to invoke the "principle" in De Simoni. In De Simoni the offender pleaded guilty to a charge under s 391 of the Criminal Code (WA) of robbery. An element of that offence was that he had used "actual violence" (at 387). In fact, during the robbery he had struck his victim a heavy blow on the back of the head inflicting a wound at the rear of the skull (at 386). There was an aggravated version of the offence under s 393 of the Criminal Code (WA) if a robbery involved, inter alia, "wound[ing]" or "personal violence" (at 387). The Western Australian Court of Criminal Appeal had held that the sentencing judge had impermissibly sentenced the offender on the basis that he wounded the victim and allowed his appeal from the sentence. The High Court restored the sentence on the basis that that characterisation of the sentencing judge's approach was itself erroneous, and the sentencing judge had relied on no more than the fact that the offender "used violence" (at 394 per Gibbs CJ). 35Chief Justice Gibbs (with whom Mason and Murphy JJ agreed) articulated the general principle for which De Simoni stands as follows (at 389): "... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 36However, later in the judgment Gibbs CJ addressed the position where the circumstance of aggravation is also an element of the offence for which the offender is being sentenced (at 393 to 394): "The application of s 582 leads to difficulty in some cases of robbery. Under s 391, it is an element of the offence that the offender has used or threatened to use actual violence to any person or property. Under s 393 a circumstance of aggravation is that the offender wounds or uses any other personal violence to any person. In my opinion there is no difference between using actual violence to any person, and using personal violence to any person. Actual violence means no more than physical force which is real and not merely threatened or contemplated. Personal violence means violence to the person - bodily violence. Under s 391 the relevant element of the offence may be satisfied by actual violence to property or by threatened violence to the person, and in those cases there will not necessarily exist any circumstance of aggravation. However, the necessary element required by s 391 may also be satisfied by actual violence to any person, and where that is the case the element of the simple offence will also constitute a circumstance of aggravation. ... If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s 393. On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter." (emphasis added) 37This passage reveals the subtleties that can be involved in the application of De Simoni (see McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [38]-[39] per Howie J, McClellan CJ at CL and Simpson J agreeing; and Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [135]-[138]). Nevertheless, the emphasised passage in [36] makes it clear, as does the outcome in De Simoni, that the sentencing process will not miscarry if the sentencing proceeds upon facts that merely satisfy the elements of the offence charged, even if one of those elements can amount to a circumstance of aggravation sufficient to found guilt for another more serious offence. However the sentencing process may miscarry if those facts amount to such a circumstance which is not an element of the offence charged. 38The difficulties in the application of De Simoni arise in this case. Ms Francis argued that the findings made by the sentencing judge in relation to the first offence would have warranted his conviction for the more serious offence of pervert the course of justice found under s 319 of the Crimes Act 1900 and were thus inconsistent with De Simoni. 39Sections 311, 312, 317 and 319 of the Crimes Act 1900 relevantly provide: "311 Definitions (1) In this Part: benefit means any benefit or advantage whether or not in money or money's worth. judicial officer means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner. judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath. judicial tribunal means a person (including a coroner and an arbitrator), court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding. public justice official means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders. (2) In this Part, a reference to the making of a statement on oath includes a reference to the verification of a statement on oath." 312 Meaning of "pervert the course of justice" A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law. ... 317 Tampering etc with evidence A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years. ... 319 General offence of perverting the course of justice A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years." 40It is unnecessary to undertake a detailed exegesis concerning the differences between s 317 and s 319. There can be no doubt that many cases that satisfy s 317 may also constitute an offence under s 319. It follows from the emphasised passage from De Simoni set out above that it is permissible to merely sentence an offender on the basis of facts that meet the elements of an offence under s 317, even if those facts might also constitute an offence under s 319. However if the factual findings go beyond those elements, then the principle in De Simoni may be engaged. 41An example of a case in this area of discourse that involved an infringement of the principle in De Simoni was referred to in argument, namely R v Mobbs [2005] NSWCCA 371 ("Mobbs"). In Mobbs the offender pleaded guilty to one charge of hindering the investigation of a serious indictable offence contrary to s 315(1)(a) of the Crimes Act 1900 in that he falsely told police that he was the driver of a vehicle involved in a serious car accident. The maximum penalty for the offence was seven years imprisonment. This Court held that a finding by the sentencing judge, that but for the false statement another person would have been prosecuted for the offence, was one that "move[d] beyond the elements of a s 315 offence to a s 319 offence so as to infringe the De Simoni principle" (at [32] per Johnson J, with whom Simpson and Adams JJ agreed). 42In this case when addressing the circumstances of the first offence in this case the sentencing judge stated: "The offender took a number of steps over a significant period of time to destroy pieces of evidence knowing that they would be required as evidence in judicial proceedings. He sought to take advantage of the difficulties police were under in gaining entry to the property. No judicial proceedings were underway at the time. Police came upon the offender by chance. The acts of the accused were clearly deliberate. It is difficult to know to what extent the burning of the items of equipment and chemicals hampered the investigations of police, as it would appear that items were totally destroyed by the fire. The acts were clearly designed to frustrate proceedings in relation to significant criminal activity relating to the preparations for the manufacture of prohibited drugs." (emphasis added) 43Ms Francis took particular objection to the word "frustrate" in this passage. It was contended that this reference amounted to a finding that the applicant intended to "prevent" successful proceedings relating to the preparations for the manufacture of prohibited drugs. It was submitted that this went beyond the admission of the elements of the offence by the applicant. It was submitted that he was only to be sentenced for "destroying" certain unidentified objects "with the coincident intent of misleading a judicial officer, that is, with the intent of engendering in the judicial officer the wrong impression". 44The Crown submitted that, although it was unclear, this aspect of the sentencing judgment was no more than a restatement of the elements of the offence under s 317. Otherwise it was implicit in both sets of submissions that the form of judicial proceeding contemplated by the first offence is a criminal prosecution concerning the manufacture or attempted manufacture of prohibited drugs. 45While it is unclear, in my view the reference to "frustrate" proceeding in the above passage from the sentencing judgment is no more than a restatement of the elements of the offence under s 317 to which the applicant had pleaded guilty. Properly construed, it does not convey that the applicant destroyed the items while possessing a mental element beyond that specified in s 317. It is notable that in the passage from the sentencing judgment noted in [42] his Honour did not refer to the applicant's intention to mislead the judicial tribunal. This suggests that his Honour was referring to that intention in describing the applicant's acts as clearly intended to "frustrate" proceedings. 46By entering a plea of guilty to an offence under s 317 the applicant admitted that firstly he destroyed objects, secondly that he did so knowing that they were or may be required in a judicial proceeding, and thirdly that he did so with an intention to mislead a judicial tribunal in that judicial proceeding. In my view it is not inaccurate to describe those three elements, without more, as amounting to the undertaking of acts "designed to frustrate" those judicial proceedings. To deny a judicial tribunal items that may be "required as evidence" is to "frustrate" that body in the performance of its function, even if it is not ultimately precluded from performing it. Thus, even if one accepts Ms Francis' characterisation of the relevant intent required to commit an offence under s 317 (noted in [43] above), an intention to engender in a judicial officer the "wrong impression" involves an attempt to frustrate the proper performance of that judicial officer's function. 47Accordingly I reject ground 5.

Ground 3: The sentence imposed in relation to the second offence was "too severe" 48Ground 3 of the appeal contends that the sentence imposed for the second offence was "too severe", that is it was "unreasonable or plainly unjust" (House v R [1936] HCA 40; 55 CLR 499 at 505). During oral argument Ms Francis made a subsidiary point in support of this ground, namely that the facts found by the sentencing judge in relation to the second offence meant that the applicant was also sentenced on a basis that conflicted with De Simoni. I will address that subsidiary point first. 49As noted, the applicant was charged with an offence under s 24A(1) of the DMTA. The section relevantly provides: "24A Possession of precursors and certain apparatus for manufacture or production of prohibited drugs (1) A person who has possession of: (a) a precursor, or (b) a drug manufacture apparatus, intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence. (2) ... (3) In this section: drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section. precursor means a substance specified or described in the regulations as a precursor for the purposes of this section." 50As is to be expected s 24(1) of the DMTA provides that it is an offence for a person to "manufacture or produce, or knowingly take part in the manufacture or production of, a prohibited drug ...". In the case of methylamphetamine, the maximum penalty for such an offence is fifteen years imprisonment (DMTA, s 32(1)(g)). Section 3 defines manufacture as "includ[ing] the process of extracting or refining the prohibited drug". Section 27 provides, inter alia, that a person who "aids" or "abets" the commission of an offence under s 24(1) is guilty of an offence under the latter section and liable to the same penalty. 51Further, s 6 of the DMTA provides that: 6 Meaning of "take part in" For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug or psychoactive substance if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply, (b) the person provides or arranges finance for any such step in that process, or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates." (emphasis added) 52In R v BD [2001] NSWCCA 184; 122 A Crim R 28 ("BD") this Court held that the acquisition and transport of chemicals and equipment for the manufacture of methylamphetamine did not, without more, amount to a "step ... in the process of ... manufacture" (at [26] per Bell J, with whom Stein JA and Greg James J agreed). It accepted the distinction drawn by the trial judge in that case "between preparatory acts and acts which, in truth, represented steps in the process of manufacture" (at [17] and [26]). 53In this case the relevant part of the sentencing judgment in which his Honour addressed the seriousness of the first offence was as follows: "Care must be taken to ensure that the rule in De Simoni is not breached. He was not in possession of a precursor. Also, as I have already noted, the offender is not charged with an attempt to manufacture a prohibited drug or precursor, or knowingly take part in the manufacture of a prohibited drug or conspiracy. The Crown conceded, and it is implicit from the course the matter has taken, that none of these offences could be proved on the facts here. The Crown concedes, at its highest, the offender was involved in acts of preparation consistent with the decision in R v BD [2001] NSWCCA 184 (T11). Here the obtaining of the equipment and reference to chemical processes in a diary or researches or enquiries on the Internet, if they could be attributed to the offender, could not be described as anything more than preparation for a future process of manufacture. It is difficult on the material before me to determine the extent the offender played a role in the acts of preparation leading up to the marshalling of the items found and destroyed on the premises. It is reasonable to infer from the evidence, including the notations in a diary which contain the offender's fingerprints and the finding of various items in the place they were found that the offender was aware of the scale of the intended manufacture. A number of items that could be used in the process of manufacture of prohibited drug contained the offender's fingerprints. Whilst it is the case that the offender faces sentence for the possession of a single item of equipment and had possession only for a matter of hours, it would be artificial to disregard the finding of the other items. Those other items provide the context in which the offender's culpability for possession of the condenser is to be viewed. The preparations for the manufacture of prohibited drug were in an advanced stage. However, whilst there may be strong suspicion that the offender intended to himself engage in the ultimate processes of manufacture of prohibited drugs, I am unable to conclude to the criminal standard that that is so. I am of the view that the offender was aware that gaining possession of the condenser was a significant step in what was preparation for the manufacture of prohibited drug of some scale." (emphasis added) 54Ms Francis contended that even though the sentencing judge was acutely conscious of the need to comply with De Simoni, these findings meant that the applicant was sentenced on the basis of facts that amounted to an involvement in a more serious offence being either aiding and abetting a manufacture or knowingly taking part in a manufacture. 55In my view that contention is untenable. The above passage reveals that the sentencing judge was very careful to respect the distinction accepted in BD between acts preparatory to manufacture and the taking of a step in the manufacture. The facts that his Honour found could not have grounded a conviction of the applicant for an offence under s 24(1), because those facts did not suggest that the process of manufacture or the taking of steps in the process of manufacture had commenced. 56The balance of the applicant's complaint under this ground was set out in the written submissions filed on his behalf. The applicant pointed to two matters in particular as demonstrating that the sentence imposed was unreasonable or unjust. 57First, he pointed to the fact that the condenser was purchased together with other legal items for a total value of $1,241.62, and that there was no evidence as to what quantity of drug, if any, could have been made from the items seized from the car, nor as to any further items or chemicals that may have been needed to manufacture a prohibited drug. 58Second, the applicant asserted that a review of the statistics that were tendered to the sentencing judge showed that "prior to the instant case no offender in the District Court had received a full time custodial sentence for this offence and in the Local Court the highest sentence imposed was a sentence of imprisonment of one year". 59In relation to the first matter, the sentencing judge ultimately concluded that the possession of the condenser was "a significant step in what was the preparation for the manufacture of a prohibited drug of some scale". An assessment of what manufacture the applicant intended the condenser to be used in is not to be undertaken by restricting consideration to the items that were found in the vehicle, but extended to the other material that was found during the search of the applicant's home. The scale of manufacture that was contemplated, of which the condenser formed part, was clearly not insignificant. 60Otherwise the resort to sentencing statistics is of no assistance. The limitations upon the use of statistics were described in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] to [55] ("Hili"). Further, the premise of the applicant's submission is incorrect. The sentencing statistics that were tendered indicated that there had been three cases in the Local Court under s 24A(1)(b) in the period April 2008 to March 2012, all of which had resulted in custodial sentences. They also indicated that in the District Court there had been two such cases in the period December 2008 to September 2011, both of which had resulted in suspended sentences. However there had been also 39 cases under s 24A(1)(a) which prohibits the possession of a precursor chemical, and approximately three-quarters of those cases had resulted in custodial sentences. There is no prima facie difference in the level of seriousness between an offence under s 24A(1)(a), which prohibits the possession of precursors, and an offence under s 24A(1)(b) which prohibits the possession of equipment for the manufacture of prohibited drugs. In any event, these limited statistics only serve to illustrate the strength of the comments in Hili at [54] to [55]. 61As I have stated, the maximum penalty for an offence under s 24A(1)(b) was ten years imprisonment. The sentencing judge correctly characterised the level of criminality involved in this offence. As ground 3 demonstrates, there were some strong aspects of the applicant's subjective case, but generally his appalling criminal record meant that he was not entitled to leniency. In those circumstances I am not satisfied that the sentence for the second offence was "unreasonable" or "unjust". 62I reject ground 3.

Ground 2: Application for leave to adduce further medical evidence 63Ground 2 seeks leave to adduce fresh evidence relating to the health status and treatment of the applicant while he has been in custody. It was submitted that it reveals that the condition of his leg arising from his motorcycle accident has deteriorated while in custody and has not been properly treated. This was said to warrant him being resentenced. 64The applicant sought to adduce further evidence on the appeal concerning his medical condition on two bases. The first was the so called "usual basis", namely that if the applicant otherwise demonstrated error on the part of the sentencing judge, then this material could be relied upon at the point the Court came to re-exercise the sentencing discretion. As error has not otherwise been demonstrated, this basis for receiving the evidence does not arise. 65The second basis was stated by King CJ in R v Smith (1987) 44 SASR 587 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." 66Three 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 (e.g. 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). 67To address this ground it is first necessary to outline the material before the sentencing judge before considering the further evidence sought to be relied on. 68Before the sentencing judge there was tendered a report from Dr Albina Della Bruna. Dr Della Bruna has been the applicant's general practitioner since 2006. She stated that the applicant had been admitted to hospital on 25 November 2009 after a motor bike accident, and had surgery performed on his left knee. She describes a series of further attendances by the applicant at hospital seeking medical treatment for persistent infections of his left knee. This included surgery for the debridement of a fistula. 69Dr Della Bruna also stated that the applicant had suffered two further motor vehicle accidents on 17 November 2011 and 25 November 2011, which had exacerbated the condition of the applicant's left knee. Dr Della Bruna stated that the applicant had a limited use of his left knee, and that he "mobilises with crutches or a walking stick and suffers chronic pain and stiffness". She said this resulted in "substantial limitations with his activities of daily living, including bathing, dressing, transferring, walking and driving". 70Dr Della Bruna stated that she had last reviewed the applicant on 19 March 2013 and at that time he was suffering from another infection over his left kneecap which was likely to extend into the surrounding tissue. She described the applicant's left knee as very painful and tender to touch. She noted the compounding effects on the applicant of the recent death of his father. Dr Della Bruna also stated: "If [the applicant] were in custody, without the extensive support of his mother and extended family his substantially limited mobility and general ability to self care would make it very difficult for him to cope ... His level of impairment currently is now long standing and unlikely to improve in the foreseeable future." 71As noted, the sentencing judge addressed this material. His Honour found as follows: "The offender continued in this employment until he was seriously injured in a motorcycle accident in November 2009 which led to permanent injury to his knee. Dr Della Bruna reported that the offender required multiple surgical interventions to repair bone damage and to treat a subsequent ongoing infection. He requires pain killing medication. Dr Della Bruna reports that the offender suffers limited range of movement, power and mobility of his knee. He is required to walk with crutches or a walking stick. He reports suffering chronic pain. The doctor reports the offender is substantially limited in undertaking any day to day activity. The offender reports that his chronic pain affects his mood and judgment. He suffers lower back pain and pain in his right leg from overcompensating for the injury to his knee. ... Dr Della Bruna reports the offender is again suffering from infection to his left kneecap and may require further treatment. He is presently living at home under the care of his mother who he relies on greatly. Dr Della Bruna reports that the offender would have had great difficulty in custody with self-care and mobility. These conditions will cause hardship to the offender during the serving of any period of imprisonment. I take this hardship into account as part of the general mix of subjective circumstances." 72Three affidavits were sought to be read on behalf of the applicant in support of this ground. They consisted of affidavits from the applicant sworn 27 March 2014 and another sworn 27 July 2014, and an affidavit from Dr Della Bruna sworn 26 March 2014. In its submissions the Crown indicated that it was seeking material from "Justice Health" in response to this material, but it had not arrived. At the hearing of the appeal the Crown was allowed a further seven days to provide any material in response to the applicant's and Dr Della Bruna's affidavits. However the Crown subsequently advised the Court that it did not anticipate receiving material from Justice Health in sufficient time. I note that the period between the time of service of the applicant's submissions outlining this ground together with the affidavits in support and the date of the hearing was in excess of four months. 73In his affidavit of 27 March 2014 the applicant described the difficulties he has had since his incarceration in 2013. He stated that "for some considerable time" after his incarceration there has been a "hole in the skin over my patella which is open all the way to the bone". He said this required regular dressing, at least once daily, but it is often not dressed until every second or third day. He said that the sore is smelly and off-putting for himself and other prisoners. 74The applicant stated that over two months prior to swearing the affidavit, the site of this sore had become extremely painful and that the pain had radiated up to his thigh bone. He said that even though he had suffered problems with his injury since 2009 he had not previously suffered pain in the thigh bone. He complained that he has not "in recent months" undergone any tests for his bone infection, although he had requested those tests on many occasions. 75The applicant said that he attended an appointment at the Prince of Wales Hospital in May 2013 shortly after he was incarcerated. He was prescribed an orthopaedic brace which he has worn since then. The brace is restrictive and he cannot bend his knee. He described the difficulties he faces in wearing a brace in prison, including sharing a cell of small size in circumstances where he is required to keep his leg straight. The applicant stated that he is often placed in a cell in locations that require him to walk up and down stairs. He complained that prison staff do not take this into account and instead refer to outdated medical material indicating that he is capable of moving. 76The applicant stated that a doctor had requested he be specially transported to medical examinations but that did not occur. He said he cannot work, play sports or do any "cardio training". Most of his days are spent doing "more or less nothing". 77The applicant said that, despite finishing a course of antibiotics in January 2014, he still suffers ongoing fevers, soreness in the area and discharge from the knee. He also stated that he cannot obtain proper pain relief. The applicant stated that the "brace is dragging me down mentally and emotionally". He said that he has found this time in custody much more difficult than previous occasions when he has been incarcerated as a result of his injury, the lack of medical care and treatment, and the lack of change in his conditions to accommodate his injury. 78In her affidavit sworn 26 March 2014 Dr Della Bruna recounted attending the applicant on 27 January 2014. She had access to notes from the Royal North Shore Hospital as well as the applicant's Justice Health file. Dr Della Bruna noted that on 14 August 2013 a registrar had indicated that the applicant would need further surgery, but nothing further had happened. She said that the notes did not disclose any reason why that surgery had not taken place. 79On examination of the applicant, Dr Della Bruna observed the open wound to his left knee described above. She considered that the knee had deteriorated since she last examined the applicant. Dr Della Bruna stated that the applicant requires "surgeries to treat the infected area of skin and open wound and remove tethered skin that profoundly limits [the applicant's] range of movement". She also stated that the applicant needs follow up with regular and intensive physiotherapy. Dr Della Bruna expressed scepticism as to whether the applicant will receive the appropriate medical attention he needs, and fears "he will be left with a permanently disabled left leg". Dr Della Bruna also stated: "There is also the very real possibility that the infection if not adequately treated may spread into the joint and underlying bone, causing septic arthritis and osteomyelitis respectively, that would be a medical disaster and would be very difficulty to treat." 80In his affidavit sworn 22 July 2014, the applicant explained that "[a]bout 2-3 months ago" the brace on his leg was removed. He said the open sore then healed over and "[o]verall it is much better". He said that he still had restricted movement but he can climb stairs and interact with other inmates without embarrassment. Nevertheless, he stated that he still has strong pain in the bone and continues to suffer significant pain in his knee area radiating in the bone towards his ankle. He also stated that the range of movement in his left leg is still restricted. He added that when he last saw a doctor he was told he would need physiotherapy when the brace was removed, but that has not occurred. 81The criteria for the admission of such evidence is not entirely clear. In R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 at 76 Howie J stated that the Court receives evidence concerning events subsequent to sentencing which concern "the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed". However his Honour also noted (at 77) that the admission of such material was conditioned by the need for the circumstances to be "special and unusual" (citing R v Ehrenburgh (Supreme Court (NSW), 14 December 1990, unrep); see also R v Kertebani; Kertebani v R [2010] NSWCCA 221 at [37] to [39]). 82In Iglesias at [12] such evidence was admitted without the Court specifically adverting to whether it was "special" or "unusual". McClellan CJ at CL dealt with the material as follows: "[12] I am satisfied in the present case that the circumstances justify this Court in receiving the fresh evidence. Although the applicant had complained of symptoms which were clearly related to his carcinoma, his condition had not been diagnosed at the time of sentence. It was only a matter of weeks before the correct diagnosis was made which revealed a significantly adverse medical situation. However, whether, having regard to the facts which are now known, this Court should intervene raises different considerations. [13] Critical to that question is whether or not, by reason of the medical condition of the applicant as it is now understood, his period of incarceration will be more onerous than was appreciated when he was sentenced, justifying any reduction in his non-parole period. This requires consideration of his physical condition, the availability of medical facilities and whether he can be adequately treated within the prison system." (emphasis added) 83Having posed this test, McClellan CJ at CL held that the material did not justify a reduction in sentence (at [15]). 84The material concerning the applicant's time in custody can conveniently be addressed in four related components. 85First there are the difficulties he has experienced as a result of his impaired movement. I do not consider that this is any different to what was envisaged by the sentencing judge. The applicant was using crutches when he was sentenced. The sentencing judge was clearly cognisant that his knee condition was longstanding and specifically adverted to the difficulties in "mobility" he would face while in custody. 86The second concerns the applicant's open wound to his knee. The overall effect of the material is that for a sustained, but now closed, period the applicant suffered from an open wound to his knee which was painful and caused various difficulties. I have no doubt that this was distressing. However, again in light of the material that was presented to the sentencing judge, it was a foreseeable consequence of the condition he was known to be suffering at the time he was sentenced. The sentencing judge specifically noted that the applicant had suffered from persistent infection. 87The third is the possibility that he has developed a bone infection. The difficulty with that is that at the moment it remains only a possibility, albeit the concern is genuine. 88The fourth concerns the generally poor level of medical treatment received by the applicant in custody as disclosed by the affidavits. The material suggests he needed some form of surgery on his knee but has not received it. He was not supplied with appropriate dressing when his wound was open, and has had difficulty in obtaining painkillers. As noted, Justice Health has had more than sufficient time to respond to the evidence of these complaints but it did not respond. As I have noted, there is the possibility that, unless he is properly treated, he may develop a bone infection. There are strong reasons to doubt that in the time remaining on his sentence the authorities will take the appropriate action to prevent that occurring. 89If the evidence was confined to the first three matters just noted, I would reject it. All of the unfortunate medical conditions and physical limitations that have affected the applicant were in contemplation at the time of his sentencing. However, the inadequacy of his medical treatment in custody is not so straightforward. This is not a category of case where the sentencing judge received some assurance that the applicant would receive a particular level of treatment which was then not forthcoming (cf R v Keir supra). Further, the sentencing judge noted that the applicant had been receiving a high level of support from Dr Della Bruna and his mother, with the implication being that he would not receive that same level in custody. Nevertheless the sentencing judge was entitled to assume, and most likely did assume, that a reasonable level of medical support would be made available to the applicant while incarcerated, yet the evidence is to the contrary. 90I consider that the threshold for the admission of this material has been met. The poor standard of medical treatment that the applicant has received has had the consequence that the various sequelae of the applicant's condition that were contemplated by the sentencing judge have had a more oppressive effect than was contemplated. It is one matter to envisage a prisoner having an ongoing infected knee. It is another to envisage the prisoner not getting a reasonable level of pain relief and wound dressing, much less not having any necessary surgery. 91Nevertheless there remains the issue whether this material renders the applicant's "period of incarceration ... more onerous than was appreciated when he was sentenced [so as to] justify any reduction of the applicant's non-parole period" (Iglesias at [13]). In my view it does not. The sentencing judge was presented with a significant amount of material concerning the applicant's condition and clearly gave it great weight. The sentence imposed on the applicant was at the low end of the range, given the seriousness of his conduct and his otherwise extremely poor subjective case. The concerns raised by the evidence before the Court do not warrant any reduction in the sentence that was imposed. 92I consider that no basis for intervention by this Court has been established, but, even if there was, no lesser sentence is warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3)).

Disposition 93Accordingly, the orders I propose are: (1)Leave to appeal granted; (2)Appeal dismissed. 94HAMILL J: I agree with Beech-Jones J. 95I would only add that I find it most unsatisfactory that Justice Health has failed to provide evidence concerning its medical treatment of the applicant, and the uncontested assertion that it has failed to provide timely and appropriate treatment. 96The authorities are now on notice of the opinion and concern of the applicant's doctor that the failure properly to treat his condition may result in permanent disability.

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: 17 September 2014