Richardson v R

1. [1]

   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.

2. [2]

   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.

3. [3]

   The offences, maximum penalties and indicative sentences were as follows:

The Grounds of Appeal

1. [4]

   The Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [5]

   Statements of Agreed Facts were tendered in the District Court, which revealed the following narrative of the offences.

2. [6]

   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).

3. [7]

   As at December 2019, the Applicant and KS had been separated for some time.

4. [8]

   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.

5. [9]

   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.

6. [10]

   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.

7. [11]

   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”.

8. [12]

   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.

9. [13]

   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?”.

10. [14]

    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.

11. [15]

    The Applicant then travelled by motor vehicle to the residence of KS and the children at Albion Park.

12. [16]

    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”.

13. [17]

    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.

14. [18]

    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).

15. [19]

    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).

16. [20]

    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”.

17. [21]

    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).

18. [22]

    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.

19. [23]

    About one hour later, the Applicant was located outside the residence of JS, the brother of KS, at Rosemeadow.

20. [24]

    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).

21. [25]

    Police spoke to the Applicant and the following conversation was recorded on the police officer’s body-worn video:

22. [26]

    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

1. [27]

   The sentencing hearing took place on 27 November 2020. The Applicant was sentenced later that day with his Honour delivering ex tempore sentencing remarks.

2. [28]

   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.

3. [29]

   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.

4. [30]

   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.

5. [31]

   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.

6. [32]

   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]:

7. [33]

   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]).

8. [34]

   His Honour said at [25]-[31]:

9. [35]

   The sentencing Judge then referred to the reports of Dr Wijesinghe and Mr Pisana, stating at [33]:

10. [36]

    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]:

11. [37]

    In concluding the sentencing remarks, and before announcing the indicative sentences and the aggregate sentence itself, his Honour said at [40]-[42]:

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

1. [38]

   The second ground of appeal relies upon events in custody which have affected the Applicant since his sentence commenced on 27 November 2020.

2. [39]

   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.

3. [40]

   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.

4. [41]

   It was common ground that the Court should receive the affidavits and have regard to them for the purpose of determining the appeal.

5. [42]

   The Applicant relies upon the following affidavits:

6. [43]

   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).

7. [44]

   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.

8. [45]

   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

1. [46]

   The submissions of Ms Bashir SC in support of the first ground of appeal focused attention upon ROS [34] to [38] (see [36] above).

2. [47]

   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).

3. [48]

   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”.

4. [49]

   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.

5. [50]

   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.

6. [51]

   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.

7. [52]

   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.

8. [53]

   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.

9. [54]

   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].

10. [55]

    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.

11. [56]

    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.

12. [57]

    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].

13. [58]

    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.

14. [59]

    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.

15. [60]

    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).

16. [61]

    The Crown submitted that the first ground of appeal ought be dismissed.

17. [62]

    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].

18. [63]

    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.

19. [64]

    In Blake v R [2021] NSWCCA 258, R A Hulme J (Leeming JA and Fullerton J agreeing) said at [42]-[43]:

20. [65]

    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.

21. [66]

    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.

22. [67]

    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.

23. [68]

    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.

24. [69]

    The Applicant has not demonstrated error in the manner asserted in Ground 1(i).

25. [70]

    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).

26. [71]

    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).

27. [72]

    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).

28. [73]

    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.

29. [74]

    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.

30. [75]

    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

1. [76]

   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).

2. [77]

   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.

3. [78]

   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”.

4. [79]

   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.

5. [80]

   On 23 December 2020, the Applicant was transferred to Cooma Correctional Centre.

6. [81]

   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.

7. [82]

   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”.

8. [83]

   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”.

9. [84]

   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”.

10. [85]

    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.

11. [86]

    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”.

12. [87]

    On 25 February 2021, the Applicant was transferred to Junee Correctional Centre.

13. [88]

    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.

14. [89]

    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.

15. [90]

    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”.

16. [91]

    On 7 March 2021, the Applicant was transferred to Bathurst Correctional Centre and, on 9 March 2021, he was transferred to Kirkconnell Correctional Centre.

17. [92]

    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.

18. [93]

    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.

19. [94]

    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.

20. [95]

    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.

21. [96]

    On 9 July 2021, the Applicant submitted a referral form to seek treatment for memory loss since his assaults.

22. [97]

    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”.

23. [98]

    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.

24. [99]

    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.

25. [100]

    On 12 August 2021, the Applicant was placed on a wait list to see a psychiatrist for “routine follow up”.

26. [101]

    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.

27. [102]

    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].

28. [103]

    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.

29. [104]

    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.

30. [105]

    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].

31. [106]

    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.

32. [107]

    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.

33. [108]

    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.

34. [109]

    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.

35. [110]

    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.

36. [111]

    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].

37. [112]

    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.

38. [113]

    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].

39. [114]

    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.

40. [115]

    It was submitted that the second ground of appeal should be dismissed.

41. [116]

    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.

42. [117]

    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.

43. [118]

    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].

44. [119]

    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.

45. [120]

    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]:

46. [121]

    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.

47. [122]

    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.

48. [123]

    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.

49. [124]

    In Betts v The Queen, French CJ, Kiefel, Bell, Gageler and Gordon JJ said at [10] (emphasis added and footnotes omitted):

50. [125]

    It is the last-mentioned principle which the Applicant seeks to invoke in the present case.

51. [126]

    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.

52. [127]

    In Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, Simpson J (Davies J and Grove AJ agreeing) said at [110]:

53. [128]

    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]:

54. [129]

    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.

55. [130]

    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]:

56. [131]

    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:

57. [132]

    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]):

58. [133]

    In summary, the Applicant seeks to invoke these principles, arguing that:

59. [134]

    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.

60. [135]

    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.

61. [136]

    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]):

62. [137]

    The Chief Justice then turned to apply these principles to the circumstances of that case ([228]-[232]):

63. [138]

    There is another decision of this Court which is even closer to the circumstances of the present case.

64. [139]

    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.

65. [140]

    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”.

66. [141]

    After setting out an extract from the sentencing remarks, the Court said at [384]-[387]:

67. [142]

    The approach of the Court in Hughes v R is of assistance in determining this application.

68. [143]

    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]):

69. [144]

    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.

70. [145]

    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.

71. [146]

    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.

72. [147]

    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.

73. [148]

    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).

74. [149]

    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.

75. [150]

    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.

76. [151]

    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.

77. [152]

    It is appropriate to refer to Hughes v R for another purpose. In concluding the judgment, the Court said at [388]-[390]:

78. [153]

    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

1. [154]

   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.

2. [155]

   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

1. [156]

   I propose the following orders:

2. [157]

   LONERGAN J: I agree with Johnson J.

3. [158]

   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.