Bajouri v The Queen

[2016] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bajouri v R [2016] NSWCCA 20
Hearing dates:	24 November 2015
Date of orders:	07 March 2016
Decision date:	07 March 2016
Before:	Johnson J Button J Fagan J
Decision:	1. Leave to appeal granted.  2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – intentionally causing grievous bodily harm – victim impact statement – whether sentencing judge erred in assessment of victim impact statement as aggravating factor   CRIMINAL LAW – appeal against sentence – fresh evidence – whether absence of fresh evidence at sentencing resulted in miscarriage of justice
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bland v R [2014] NSWCCA 82; (2014) 241 A Crim R 51 EG v R [2015] NSWCCA 21 Gallagher v The Queen (1986) 160 CLR 392 R v De Marco (Court of Criminal Appeal (NSW), 20 November 1995, unrep) R v Fordham (1997) 98 A Crim R 359 R v Goodwin (1990) 51 A Crim R 328 R v Tuala [2015] NSWCCA 8
Category:	Principal judgment
Parties:	Ahmad Bajouri (Applicant) Regina (Respondent)
Representation:	Counsel: Mr G James QC (Applicant) Ms T Smith (Respondent)   Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/166048
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 14 October 2014 Before: Haesler DCJ File Number(s): 2012/166048

Judgment

1. THE COURT: The Applicant was charged with one count of having intentionally caused grievous bodily harm (s 33(1)(b) Crimes Act 1900 (NSW)) and one count of common assault (s 61) arising out of an incident at the Collingwood Hotel, Liverpool on the evening of 23 May 2012. He was committed to the District Court at Campbelltown for trial and pleaded guilty to both counts on the day fixed for commencement of the trial, 28 April 2014.

2. The maximum penalty for the offence against s 33(1)(b) is 25 years imprisonment with a standard non-parole period of 7 years. The maximum penalty under s 61 is 2 years imprisonment. On 14 October 2014 his Honour Judge Haesler SC imposed, for the s 33(1)(b) offence, a non-parole period of 5 years with a balance of term of 3 years. For the common assault a fixed term of 3 months was imposed, to be served concurrently.

3. The Applicant now seeks leave to appeal against the severity of the sentence for the more serious charge on the following grounds:

“1 His Honour erred in finding the principal offence aggravated in accordance with s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) in circumstances where the only material supporting such a finding was the Victim Impact Statement of Mr Sermatovsky (sic).

2    A miscarriage of justice has arisen in the absence of fresh evidence, now available to the Applicant.”

The facts of the offence

4. The victim, Mr George Sermetovski, purchased a drink from a bar in the poker machine area of the Collingwood Hotel at about 11pm on Wednesday 23 May 2012. At that time the Applicant, Ahmad Bajouri, and three friends, Abdul Hamze, Fadi Arnaout and Mohammad Masri, were in that area. All four were apparently well affected by alcohol. Belligerent remarks were made, by one of the Applicant’s associates, gratuitously to Mr Sermetovski. Subsequently Masri attacked Mr Sermetovski and pulled him to the ground. This caused one of the hotel staff to request the aid of an off-duty security guard, Mr Fonua, to intervene. Mr Fonua came into the poker machine area from the pool room and asked the Applicant and his associates to remain calm.

5. Mr Sermetovski and Mr Fonua then retired from the poker machine area to the pool room. The Applicant and his associates followed them about two minutes later. Mr Fonua stood between Mr Sermetovski and the four aggressors as the latter shouted at him to “bring him outside”. Mr Fonua left the pool room and went outside. He assessed that unless he did so a fight would inevitably ensue in the pool room. The Applicant, his three associates and Mr Sermetovski also exited the pool room.

6. Outside the hotel the Applicant assumed a fighting stance against Mr Fonua. The latter raised his fists defensively. The Applicant kicked Mr Fonua in the right leg three times, for which the common assault charge was laid. Mr Sermetovski was present during this as an onlooker. At 11:16pm as Mr Sermetovski stood with his arms folded in front of him looking at Mr Fonua and with his head turned away from the Applicant, the latter moved next to Mr Sermetovski and without warning punched him once to the middle of his face.

7. The punch caused Mr Sermetovski to fall to the ground. He did not move again during the further assaults upon him, which followed. After felling Mr Sermetovski the Applicant “jumped towards Mr Fonua” then walked close to the left side of the victim, who was lying on his back either unconscious or stunned, and stomped on his face. Hamze pushed the Applicant away from the victim towards the Hume Highway. Shortly afterwards the Applicant and his associates left the hotel in a vehicle driven by Arnaout. In the period immediately before the Applicant’s first assault upon Mr Sermetovski his associates, in particular Hamze and Arnaout, had attempted unsuccessfully to calm the Applicant down. This occurred both inside and outside the hotel.

8. Using a witness’s identification of the number plate of the vehicle in which the Applicant and his associates had left the scene, police were able to arrest Hamze and Arnaout the next day. They were released without charge. The Applicant then surrendered himself to police at Liverpool Station at 11:20pm on 24 May 2012, accompanied to the station by Hamze and Arnaout. When interviewed by police and also on later occasions the Applicant has acknowledged that he had been drinking heavily before the incident. He claimed not to recall how much alcohol he had consumed but said that he was told by his father-in-law he had drunk an entire 700 mL bottle of scotch whiskey. He later informed his psychologist that he had consumed a further 7 drinks at the Collingwood Hotel.

The victim’s injuries

9. Mr Sermetovski’s injuries, for which he was treated as an inpatient at Liverpool Hospital over 12 days included the following (as set out in the statement of agreed facts which was before the sentencing judge):

“● A fracture of the skull with an overlying scalp haematoma and a small amount of bleeding inside the skull (a small extra axial haemorrhage) – all situated at the back of the head.

● A fracture of the right orbit (eye socket) including the orbital floor (lower side), medial (nose) and lateral (ear) side walls.

● Comminuted (fragmented) fracture of the orbital process of the right zygomatic bone with displacement medially (nasally) into the orbit.

● Right zygomatic arch fracture.

● Left superior orbital fracture with extension of fluid (blood) into the left frontal (forehead) sinus, fractures of the inferior (lower side) and medial (nose side) orbital walls with a depressed fragment within the medial wall.

● Bilateral multiple fractures of the maxillary bones (cheekbones).

● Bilateral comminuted fracture of the medial and lateral pterygoid plates (situated behind the cheekbones).

● Bilateral comminuted fractures of the nasal bones and fracture of the nasal septum (the bone in the mid line of the nose).

● A left comminuted fracture of the clavicle.”

10. In short, numerous of Mr Sermetovski’s facial bones were fractured. His face was smashed, consistently with the Applicant having stomped upon it with considerable force whilst Mr Sermetovski lay face upwards. Some of the fractures required internal fixation with a plate and screws. These will remain in place permanently. For some of the other fractures arch bars had to be fitted for a period of 8 weeks. The procedures for repair to the victim’s face were restricted to his jaw movements so that he was confined to a liquid diet for 6 weeks after admission to hospital.

11. The learned sentencing judge had before him a Victim Impact Statement, dated 2 October 2014, which contained the following significant points:

1. Mr Sermetovski was extremely distressed when he regained consciousness in hospital by the extent to which his face had been disfigured by the injuries and by the shock that his family experienced seeing him in that condition.

2. He struggled to breathe in the early stages of his recovery and suffered excruciating pain for 13 days until major facial surgery could be undertaken.

3. Mr Sermetovski was unable to return to work for several months. He spent most of that period at home indoors and suffered depression, anxiety and a sense of insecurity which discouraged him from venturing out of his home. He lost around 20 kilograms of body weight during this period, whilst bedridden.

4. During the recovery period Mr Sermetovski’s family supported him financially (as he was unable to work) and physically (as he could not care for himself or run errands as an independent adult).

5. Prior to the assault Mr Sermetovski had been an eager sportsman who had actively enjoyed outdoor activities in company with friends. As at 2 October 2014 “it is still taking me time to return to doing these things that I used to love. Many of the activities that I once did with ease I am still unable to do at my full capacity due to my injuries”.

6. The home that Mr Sermetovski had lived in with his family for the preceding 25 years was close to the location of the assault. He and his family relocated because of the fears and disturbed memories which were associated with the incident.

7. Mr Sermetovski’s business was adversely affected because of his inability to attend to clients’ requirements during the recovery period.

8. Mr Sermetovski was still, as at 2 October 2014, experiencing flashbacks, nightmares, anxiety attacks and depression which he attributes to the attack on himself. He also suffers regular headaches and has memory loss, pain around his head and face, extreme pain and sensitivity around the jaw and teeth, blackouts, dizziness, nausea and difficulty breathing through his nose. He expects to require further surgery.

12. The Applicant weighed 130 kilograms at the time of the assault. With this weight behind the stomping on the victim’s face it is not surprising that such severe and extensive damage to the facial bones was inflicted.

Applicant’s background

13. The Applicant was born 4 May 1982. He is now married with three children (born in 2010, 2012 and 2014). At the date of the offence he was 30 years old. He migrated to Australia from Lebanon as a very young child with his parents, in 1984. The Applicant is the seventh child in a family of 11.

14. At 15 years of age he secured a football scholarship to attend St Gregory’s College at Campbelltown. He completed his HSC there. He was an average student but excelled at Rugby League, playing both for his school and for Wests Juniors.

15. After leaving school in about 2001 the Applicant played first grade Rugby League for Wests Tigers for 12 months and then obtained a contract with the South Sydney Club for 2 years. He played for 1 year of this contract, 2003, during which time he purchased a home. However on 17 February 2004 the Applicant was seriously injured in a motor vehicle accident which ended his Rugby League career. This in turn forced him to sell his home and to move back to live with his mother.

16. The injury sustained on 17 February 2004 was whiplash which caused significant soft tissue damage to his cervical spine. He suffered protrusion of the discs at the C5/6 and C5/7 levels resulting in chronic neck pain, headaches, numbness in the arms (presumably from nerve root compression or irritation at the cervical spine) and other neurological symptoms. A May 2007 MRI scan of his neck showed multi-level degenerative changes in the cervical discs resulting in narrowing of the spinal canal, to varying degrees, through the cervical vertebra.

17. Prior to the motor accident on 17 February 2004 the Applicant was an elite athlete at 93 kilograms body weight. Following that event he suffered chronic pain and his physical activities were severely curtailed. He lost condition and gained weight. He also lost self-esteem and suffered intermittent depressed mood. The Applicant commenced to abuse alcohol from about early 2005. However, as at 5 September 2005 Dr Parmagiani, psychiatrist, did not consider him to be depressed. The doctor found him to be a “psychologically resilient individual” but thought it would take him 2 – 3 years to adapt psychologically to the loss of his physical capabilities.

Criminal history 2005 – 2008

18. On 12 March 2005 at age 22 years the Applicant committed offences of assault occasioning actual bodily harm, common assault, destroying property, refusing to quit a registered club and affray. The relevant events followed him being required by staff of the Mount Pritchard Community Club to leave. The Applicant, in company with two associates, assaulted security staff by punching and kicking. The Applicant punched no less than three security guards in the face or head, with multiple blows in the case of two of the victims. The Applicant and his associates were part of a large group of 12 – 15 men who then threw bricks, rocks and other items at the security staff until police arrived, at which time the assailants fled.

19. On conviction in July 2005 the Applicant was dealt with extremely leniently, with fines and a bond of 2 years which required him not to drink alcohol to excess. He gave evidence in the sentence proceedings for the present charges to the effect that he did not consider he had an alcohol problem in March 2005. He did not take any alcohol counselling. Nor, apparently, did he observe the term of his bond that he should not drink to excess.

20. On 17 February 2006, aged 23 years, the Applicant committed offences of assault occasioning actual bodily harm and common assault at the Guildford Leagues Club. The Applicant and his associates were asked to leave the premises on account of unruly behaviour. Whilst being escorted towards the foyer by a member of the Club Staff the Applicant pinned the staff member against a poker machine and punched him in the face. The Applicant and his associates then together attacked this man. The Applicant kneed him in the head and after he had fallen to the ground continued to knee and punch him. After two other staff members came to the aid of the first, the Applicant punched all three of them to the face or head with sufficient force, in the case of two of them, to knock them to the ground. Again considerable (we would suggest quite possibly excessive) lenience was shown for these vicious attacks on Club employees performing their duties. Suspended sentences of 6 months were imposed on each charge with bonds requiring psychiatric guidance to be followed, medication to be taken and rehabilitation to be sought.

21. On 13 April 2008 at aged 25 years the Applicant committed further offences of assault occasioning actual bodily harm, common assault and failing to quit licensed premises. He attended PJ Gallagher’s Hotel in Parramatta with three friends. Having made a sexual advance to a female staff member after pestering her for her phone number and for information as to the time she would finish work, the Applicant was asked to leave. A male staff member directed the Applicant to the exit. The Applicant, well affected by alcohol, punched the staff member in the face without warning. Suspended sentences of 6 months with bonds were again imposed.

Applicant’s further medical and accident history 2008 – 2010

22. By November 2007 the Applicant suffered psychological symptoms which were subsequently diagnosed (by Dr Berecry, psychiatrist, who commenced treating him from 19 February 2008) as severe depression. He complained of panic attacks from that date occurring initially two to three times per week but diminishing to a frequency of weekly by mid-2008.

23. By July 2008, in consultation with Dr Berecry the Applicant acknowledged an awareness that “alcohol tends to potentiate his underlying grief and anger at his losses because of” the first motor vehicle accident.

24. On 12 August 2008 the Applicant underwent surgery on his cervical spine at the C6/7 level. According to a report of Dr Abraszco, a Neurosurgeon and Spinal Surgeon, dated 21 January 2013, the Applicant has said that his operation on 12 August 2008 was successful and eliminated all significant neck pain. He was able to return to work but not to playing rugby league.

25. He was injured in a further motor vehicle accident on 13 May 2010 which, according to Dr Abraszco, increased the size of a disc protrusion at the C5/6 level. Within a few days of this accident a further operation was carried out to fuse the C5 and C6 vertebrae. Dr Abraszco considered that the second motor vehicle accident had also aggravated the Applicant’s pre-existing lower back pain, which apparently dated from the first accident.

Further violent offence in 2011; continuing alcohol abuse

26. On 30 May 2011, at age 29, a further incident resulted in a charge against the Applicant for an offence of violence. In the waiting area of the Liverpool Police Station the Applicant and his brother commenced a verbal altercation, in Arabic, with a third party, followed by an assault upon this person. The offence was dealt with by a fine of $500.

27. As at 27 October 2014 Ms De Santa Brigida, counselling psychologist, recorded that at the time of the subject offence the Applicant was taking Valium, Cipramil (anti-depressant) and Mycardis (to reduce blood pressure). Ms De Santa Brigida recorded the Applicant’s acknowledgment to her that during “the past 12 months he has started to experience alcoholic blackouts”. She attributed his history of violent offending as “secondary to his complicated psychiatric and psychological [disorders] following his first [motor vehicle accident] in 2004”. In her opinion he had commenced to “seek solace in alcohol, as a means of coping with chronic pain, depression and the loss of his professional career” following the first accident.

28. Testing of the Applicant’s liver function by Ms De Santa Brigida showed that he continued to drink alcohol to excess 2 years after the incident out of which the charges arose (during which period he had been remanded on bail). The learned sentencing judge accepted the Applicant’s evidence that, whilst he continued to drink heavily, he had since the subject incident refrained from going out to licensed premises.

The Remarks on Sentence

29. The learned sentencing judge fairly observed that whilst the Applicant’s abuse of alcohol appeared to be linked to his injury sustained in the motor vehicle accident of 2004, he would “need to come to grips with his alcohol addiction, both in his own interests and that of the community”. It was evident at the time of sentencing that despite alcohol abuse having led to the Applicant repeatedly committing very serious crimes of violence over several years and despite him having been given every chance by the courts (through the imposition of very lenient penalties) he had, by 23 May 2012, on his own admission, done nothing constructive about getting on top of his alcohol problem. Even his consultations with Dr Berecry commencing on 19 February 2008 appear only to have been prompted by him having been charged with the offences of 13 February 2008.

30. With respect to the Applicant’s record his Honour correctly stated that he:

“is not to be punished again for those crimes, but his record denies him the lenience often shown to first offenders. It also means that more emphasis must be given to denunciation, community protection, and here, specific deterrence. He was made aware he had a problem with violence and alcohol years ago. He did nothing about it.”

31. His Honour allowed a 10% discount on the penalty which would otherwise have been imposed, on account of the utilitarian aspects of his belated plea. The plea was also accepted as showing remorse. Without that discount the sentence would have been a non-parole period of approximately 5 years 7 months with a balance of term of 3 years 4 months, for a total of 8 years 11 months (for the principal offence).

Ground 1 – account taken of the effect on the victim

32. His Honour summarised the effect of the Victim Impact Statement as follows:

“the memories of what was done still haunt [Mr Sermetovski]. He still feels vulnerable. He suffers from bouts of depression. He endured a major operation in which he could not eat and had to drink through a straw. He has had to relocate his home. He is anxious. His business suffered significantly. Many of the activities he was able to do with ease are now impossible to him. There was significant and lasting impairment and physical, emotional and economic harm was suffered by him” (emphasis added).

33. Section 21A(2)(g) Crimes (Sentencing Procedure) Act provides that an aggravating factor to be taken into account in determining the appropriate sentence for an offence include the circumstance, if it applies, that “the injury, emotional harm, loss or damage caused by the offence was substantial”.

34. Counsel for the Applicant has correctly submitted that before such an aggravating factor can be taken into account it must be proved by the Crown beyond reasonable doubt. There is no indication in the Remarks on Sentence that his Honour failed to appreciate this or that he thought it would be sufficient if the findings quoted at [32] above were made on the balance of probabilities. There is no basis for attributing to his Honour, an experienced criminal lawyer, such an error.

35. Accepting that his Honour made these findings beyond reasonable doubt, did he have a basis for so doing? The last sentence of the passage quoted at [32] was criticised in the Applicant’s written submissions as not being supported beyond reasonable doubt. But the agreed facts themselves substantiated these findings to the requisite standard, partly directly and partly by inference. The “significant and lasting impairment and physical… harm” were constituted by, at least, the condition of the victim’s reconstructed facial bones. According to the agreed facts, it is required that there remain in place “permanently unless an infection occurs” the plates which were inserted and screwed in position as part of the open reduction and fixation of fractures of his facial bones.

36. The Applicant challenges his Honour’s findings of “significant and lasting… emotional and economic harm”. The Victim Impact Statement included assertions by Mr Sermetovski that he had suffered significant economic harm due to inability to work whilst hospitalised and during a substantial period of recovery thereafter. It would have been well open to his Honour to infer such economic harm from any information which showed that the victim had been working (apparently self-employed in his own business) and earning at the time of the incident. The agreed description of the injuries would establish by inescapable inference that the victim would suffer a significant period of being unable to work.

37. The Victim Impact Statement also placed before his Honour Mr Sermetovski’s claim that he suffers from disturbing memories of the attack. In the absence of such assertions this would be open to be inferred by the sentencing judge, beyond reasonable doubt, merely from the nature of the attack and the injuries. The number of people who could sustain such devastating facial injuries as a result of being stomped upon in the face by a 130 kilogram man and not be emotionally disturbed by the event or have haunting memories of it must be negligible.

38. In oral submissions counsel for the Applicant also challenged his Honour’s finding in the second last sentence of the passage quoted above at [32]. By this sentence it appears to us his Honour merely intended to be summarising a part of the Victim Impact Statement which was expressed in closely similar terms. His Honour’s finding was thus directly supported. It was not inconsistent with the photographs of the victim’s activities, which the Applicant seeks to introduce as fresh evidence (see [44], below).

39. It was not open to the Applicant to object to the Victim Impact Statement: the Court was entitled to receive and consider it under s 28(1) Crimes (Sentencing Procedure) Act. If there was any challenge to or reason for scepticism about the victim’s assertions in that document it would have been open to the Applicant to say so and seek an opportunity to adduce evidence to demonstrate that the effect upon Mr Sermetovski of the assault had been less than he claimed. No such indication was given in the sentence hearing. The Applicant was content to conduct the sentence proceedings upon the basis of acceptance of the Victim Impact Statement and to seek to mitigate penalty by expressing remorse for what had been inflicted upon this victim. At T 19.15 – .25 the Applicant answered a question from his Honour with an express indication that he understood “Mr Sermetovski will suffer lifelong harm”.

40. In R v Tuala [2015] NSWCCA 8 at [77] – [81] this Court reviewed authorities concerning Victim Impact Statements. The Court’s statements of principle with respect to them included the following:

“Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened… [Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.”

41. In R v Tuala it was also said that considerable caution must be exercised before a Victim Impact Statement is used to establish an aggravating factor beyond reasonable doubt if the content of the statement is the only evidence of harm. That is not this case. The agreed facts constitute detailed and extensive evidence of physical harm. Other types of harm – emotional and economic – would inescapably be found, as a matter of inference.

42. The Applicant cited EG v R [2015] NSWCCA 21 at [36] in support of the proposition that in the absence of evidence other than the Victim Impact Statement, on the issue of duration of harm to Mr Sermetovski and the question whether he suffered emotional and economic harm, his Honour should not have found such matters to be made out, in aggravation of the offence, beyond reasonable doubt. EG v R was a very different case. The complainant there was 2 years old at the time of the subject offence and 3 years old at the date of the sentence hearing. The Victim Impact Statement was made by the complainant’s mother. Such a case, in which the Court is asked to rely upon a mother’s claims concerning lasting impact on an infant child, raises issues and difficulties which do not arise in any comparable way in the present case.

43. We reject Ground 1.

Ground 2 – fresh evidence and miscarriage of justice

44. Subsequent to the sentence proceedings the Applicant has obtained photographs from Facebook entries showing Mr Sermetovski trail bike riding and jet skiing in March 2013, about 10 months after the assault upon him at the Collingwood Hotel. The Applicant relies upon the circumstance that these photographs illustrate his activities more than 18 months prior to the date of his Victim Impact Statement (2 October 2014).

45. The Applicant has cited the following statement of the pre-requisites for reception of additional evidence on appeal against a sentence, taken from the judgment of Hunt J in R v Goodwin (1990) 51 A Crim R 328 at 330:

“What must be established is:

(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant’s legal advisors at the time of those sentencing proceedings.”

46. In our opinion the additional material relied upon by the Applicant would not satisfy the first of these pre-requisites, as formulated by Hunt J (with the concurrence of Grove J). The fact that Mr Sermetovski was able to ride a jet ski and a trail bike 10 months after the subject assault does not in any respect contradict or cast doubt upon the content of his Victim Impact Statement. The period within which he said that he was unable to return to work and rarely left his house was “several months”. He did not assert that he had been unable to return to any outdoor activities. His statement was much more qualified than that and entirely consistent with him being able to ride a trail bike and a jet ski in March 2012. He said:

“It is still [at 2 October 2014] taking me time to return to doing these things that I used to love. Many of the activities that I once did with ease, I am still unable to do at my full capacity due to my injury.”

47. The ongoing physical pain that is asserted in the Victim Impact Statement was described as being “around my head and face, extreme pain and sensitivity around my jaw and teeth”. Pain in those regions would not be expected to preclude him from jet skiing and trail bike riding.

48. In any event, more recent authorities have set the bar somewhat higher with respect to demonstrating the potential impact of putative additional material. In R v De Marco (Court of Criminal Appeal (NSW), 20 November 1995, unrep) Sully J said that whilst recognising R v Goodwin as the then uncontradicted authority in this Court, it was “at least open to reasonable argument that the first factor articulated in Goodwin is perhaps more loosely drawn than correct principle would allow”. His Honour referred to Gallagher v The Queen (1986) 160 CLR 392, a case concerning fresh evidence in relation to an appeal against conviction. His Honour noted that, with respect to conviction appeals, the test of whether a miscarriage of justice had arisen from the absence of the subject material at the trial would be whether the jury acting reasonably would have acquitted the accused of the charge if that evidence had been put before them. Gleeson CJ also expressed “some considerable reservations” about whether the approach based upon the first of the pre-requisites propounded in Goodwin may be unduly favourable to the party seeking to adduce the additional material.

49. In R v Fordham (1997) 98 A Crim R 359 Howie AJ (with whom Hunt CJ at CL and Smart AJ agreed) said at 377 – 378:

“Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defendant at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed… It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A Crim R 328...”.

50. Subsequently in Bland v R [2014] NSWCCA 82; (2014) A Crim R 51 Johnson J reviewed the authorities on this question at [77] – [86]. At [86] his Honour held:

“In R v Fordham, Howie AJ (Hunt CJ at CL and Smart AJ agreeing) stated at 377-378 that, even if the evidence is fresh, it ought not be received by the Court unless it affects the outcome of the case. Generally, it must be shown that the sentencing of the offender, in the absence of the fresh evidence, resulted in a miscarriage of justice. The miscarriage of justice principle in R v Fordham was applied in Norrie v R [2008] NSWCCA 185 at [22].”

51. In this formulation, this Court has taken the first pre-requisite stipulated in R v Goodwin as having a more restrictive effect than the literal words of Hunt J. Here, regardless of what may have been the circumstances which led to the Applicant not discovering the images on Facebook until long after sentence was passed and irrespective of whether the first pre-requisite formulated by Hunt J in Goodwin should be applied, or some stricter criterion, these Facebook images would not qualify for reception in evidence on the hearing of the appeal. We therefore reject Ground 2.

Conclusion

52. Neither of the specific errors attributed to the sentencing judge has been established. The Applicant does not propose that the appeal for which leave is sought would include a ground that the sentence was manifestly excessive. Clearly it was not, taking into account the brutality of the assault, the severity of the victim’s injuries and the appalling record of other instances of the Applicant’s alcohol-fuelled gratuitous violence, which disentitle him from lenience. Making full allowance for the Applicant’s subjective circumstances, this was a moderate sentence.

53. Accordingly the orders of the Court will be:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 07 March 2016