Application of Pierre Lemont pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

[2018] NSWSC 99

Supreme Court

New South Wales

Medium Neutral Citation:	Application of Pierre Lemont pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 99
Hearing dates:	On the papers
Date of orders:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Pursuant to s 79(3) Crimes (Appeal and Review) Act 2001 the Court refuses to consider or otherwise deal with the application of Pierre Lemont filed under s 78 of that Act on 28 September 2017
Catchwords:	CRIMINAL LAW – appeal and new trial – pardon, commutation of penalty, reference or petition for pardon and inquiry after conviction – application for inquiry into sentence under Crimes (Appeal and Review) Act 2001 (NSW), s 78 – where applicant had already appealed unsuccessfully to the District Court against severity of sentence – whether the Court can consider the application under Crimes (Appeal and Review) Act, s 79(2) – whether present evidence raises a doubt or question as to any mitigating circumstances – whether the Court can refuse to consider the application under Crimes (Appeal and Review) Act, s 79(3) – whether the matter had bene fully dealt with in the proceedings or previous review – whether special circumstances exist
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Application of Peter James Holland [2008] NSWSC 251
Category:	Principal judgment
Parties:	Pierre Lemont
Representation:	Solicitors: Hunter Braddon (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/294719
Publication restriction:	Nil

Judgment

1. This is an application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the applicant’s sentence imposed in the Local Court at Parramatta in late 2016. He was convicted on 8 November 2016 of dishonestly obtaining financial advantage contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The charge was brought upon evidence of Ms Lamb, an acquaintance of the applicant of 30 years, whom he had induced to part with $96,020 by false representations that he required funding for legal representation and that he held vast wealth to which he was temporarily denied access.

2. The applicant did not attend the Local Court when the charge was listed for hearing. One month later, on 7 December 2016, he applied to the Local Court for annulment of the conviction pursuant to s 4 of the Act. That was refused by Magistrate Still on 14 December 2016. Sentence was then passed: 20 months imprisonment commencing 29 November 2016 with a non-parole period of 15 months expiring 28 February 2018.

3. On 7 January 2017 the applicant applied to the District Court at Parramatta for an order setting aside the refusal of Magistrate Still to annul his conviction. He claimed that illness had prevented him attending the hearing on 8 November 2016 and that he had always intended to defend the charge. This application was dismissed by Judge Sides QC on 6 June 2017. His Honour found “nothing in the material that could justify a finding that there would be a reasonable doubt that the offence had been proved”. The learned judge was “not persuaded in the circumstances that it is in the interests of justice to accede to the application to set aside the [Magistrate’s] refusal to annul”.

4. The applicant separately filed an appeal to the District Court against the severity of his sentence. Delaney DCJ dismissed that appeal and confirmed the term of imprisonment imposed by Magistrate Still. In the covering letter for the s 78 application to this Court the applicant’s solicitor provided the following information about the conduct of that appeal:

The District Court severity appeal focused on the lack of medical evidence before Magistrate Still regarding [the applicant’s] diabetes, heart condition and kidney disease.

Judge Delaney on the severity appeal concluded that none of those conditions [warranted] any adjustment of the sentence despite none of that material [having been] available to Magistrate Still.

… since being in custody [the applicant’s] physician … Dr Williams has explained to [him] that medical testing has indicated he is likely suffering from prostate cancer.

This does not surprise us as notes from his GP indicate heightened levels of the relevant hormones.

There was material before Judge Delaney regarding hormone testing by his GP showing possible prostate cancer, but the focus of the submissions was the liver, heart and diabetes so the cancer was not addressed.

5. The above letter frames the present application as one for:

an inquiry … into certain mitigating circumstances that existed at the time (namely cancer) but only because of fresh evidence can now be more thoroughly understood.

[The applicant asks] that the Court request directly from the prison a report as to the prostate cancer and prognosis … .

Thereafter, it may be appropriate for adjustment of the sentence in light of his life expectancy.

6. Subsection (2) of s 79 of the Crimes (Appeal and Review) Act provides that action may only be taken by the court on an application such as this “if it appears that there is a doubt or question … as to any mitigating circumstances in the case or as to any part of the evidence in the case”. In Application of Peter James Holland [2008] NSWSC 251 at [6] – [9] Johnson J cited authority for the proposition that subs (2) may be satisfied where “the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand”.

7. Pursuant to s 79(3) this Court may refuse to consider or otherwise deal with an application if it appears that the matter “has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence)” and the court is “not satisfied that there are special facts or special circumstances that justify the taking further action”.

8. The present application under s 78 was filed with the Court on 28 September 2017. After the papers had been referred by the Court to the Attorney General, written submissions from the Crown Solicitor were received on 1 December 2017. Submissions in reply for the applicant were filed on 10 January 2018. The application was referred to me at the commencement of the new term on 31 January 2018.

9. The matter raised by this application is whether presently available medical evidence regarding a possible diagnosis of prostate cancer raises a doubt or question about a mitigating circumstance affecting the applicant’s sentence and whether this Court should feel unease or disquiet about whether the sentence should stand, on that account. In the part of the solicitor’s letter quoted at [5] it is correctly acknowledged that the possibility of the applicant suffering prostate cancer was before Judge Delaney. Medical records provided to his Honour (as annexures to an affidavit of Nicholas Digges sworn 31 March 2017) showed that his levels of PSA (an indicator of prostate cancer) had been elevated since 2012. It is still only a possibility that he suffers from this disease, in the sense that there has been no positive diagnosis. That is evident from the opinion of Dr Williams referred to by the applicant’s solicitor in the passage quoted at [4].

10. Materially, nothing has changed since the severity appeal was dismissed in the District Court. Thus, the subject matter of the application has been fully dealt with in the court below. There are no special circumstances which would warrant re-examining the matter. Particularly is this so where the applicant will be entitled to be released on parole within about two weeks from the date of this decision: s 50(3), Crimes (Sentencing Procedure) Act 1999 (NSW). For those reasons, applying s 79(3), I refuse to consider the application any further or deal with that.

11. Even if I were not to reject the application under s 79(3), I would not feel any unease or disquiet, on the basis of the material placed before this Court, about the applicant being required to serve the sentence imposed upon him. He is a man in his late 60s. There is no reason why he could not be managed by Justice Health, with respect to investigation of possible prostate cancer and treatment of it if diagnosed, over the short period of incarceration which has remained from when this application was filed up to the date of his release on parole. The health considerations, even if given full weight as on a re-sentencing exercise, would not warrant reduction of his term. I take into account the serious nature of the offence of which he was convicted, his long record of other offences, his failure to make any restitution and the lack of indicia of contrition or remorse.

12. The determination of the Court is that pursuant to s 79(3) Crimes (Appeal and Review) Act 2001 the Court refuses to consider or otherwise deal with the application of Pierre Lemont filed under s 78 of that Act on 28 September 2017.

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Decision last updated: 13 February 2018