Barkho v The Queen
[2019] VSCA 58
•20 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0223
| RICHARD BARKHO | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST AP and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 March 2019 |
| DATE OF JUDGMENT: | 20 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 58 |
| JUDGMENT APPEALED FROM: | DPP v Barkho (Unreported, County Court of Victoria, Judge Wilmoth, 25 July 2014) |
---
CRIMINAL LAW — Appeal — Sentence — Application for extension of time to appeal against sentence — Applicant suffered injury after sentence in prison assault — Resulting pain and disfigurement — Resulting post-traumatic stress disorder — Pre-existing depressive symptoms — Whether fresh evidence — Whether facts in existence at time of sentence — Relationship with partner causing the applicant difficulty in custody — Whether fresh evidence — Proposed grounds of appeal lacking merit — Application for extension of time refused — Criminal Procedure Act 2009, s 313 — Madafferi v The Queen [2017] VSCA 302 considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey SC | Koutsantoni & Associates |
| For the Respondent | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST AP
NIALL JA:
As long ago as 25 July 2014 — following his plea of guilty to one charge of trafficking in a drug of dependence, methylamphetamine, in not less than a large commercial quantity[1] — a judge of the County Court sentenced the applicant to be imprisoned for 7 years and 3 months, with a non-parole period of 5 years.[2]
[1]The charge was laid as a Giretti count. See R v Giretti (1986) 24 A Crim R 112.
[2]The applicant also pleaded guilty to possessing 4.49 grams of cocaine and to a summary charge of dealing in the proceeds of crime.
By an application dated 23 October 2018, the applicant sought an extension of time within which to file a notice of application for leave to appeal against sentence, under s 313 of the Criminal Procedure Act 2009 (‘CPA’).
The application initially filed indicated that, should he be granted an extension of time, the applicant would seek to rely on what was said to be fresh evidence. Thus, the sole ground of appeal that the applicant first wished to agitate was formulated as follows:
Fresh evidence is now offered in the form of psychiatric evidence that the [applicant’s] pre-existing depressive symptoms and depression at the time of sentence significantly worsened as a result of an attack in prison and the subsequent trauma and classification issues whilst in the prison system. The fresh evidence may result in a significantly reduced sentence.
And the ground upon which the applicant originally made the application for an extension of time was expressed in the following way:
It was not until the 16th April 2018 that an independent forensic psychiatric report was obtained. A further report obtained on the 17th September 2018 made it clear that fresh evidence was now available to found an Appeal. The fresh evidence combined with other material may result in a significantly reduced sentence.
On the morning that the application for extension of time was to be heard in this Court, however, at a few minutes before 10.00 am, the applicant’s counsel emailed to the Court a document entitled ‘Defendants [sic] Further Outline of Submissions’, dated 15 March 2019 and signed by counsel. The written outline so provided indicated that the applicant would rely on a further proposed ground of appeal as follows:
Given the increasing and volatile hardship the Applicant faces in custody because of publicity attaching to his partner, reflected in the fresh affidavit evidence now before the Court, a reduction to the sentence is required in order to avoid a miscarriage of justice.
It was also indicated that the applicant would seek to amend the existing proposed ground of appeal to read as follows:
Because of the attack upon the Applicant in October 2015, and the worsening in his psychological condition this caused, reflected in the fresh affidavit material now before the Court, a reduction to the sentence is required in order to avoid a miscarriage of justice.
In short compass, the applicant’s offending involved him trafficking in a quantity of at least 2.576 kilograms of methylamphetamine, ranging in purity between six per cent and 16 per cent, in a period between 29 November 2010 and 3 August 2011. A police operation investigating drug trafficking, using means which included telephone intercepts and covert police operatives, identified the applicant and four others involved in the trafficking of methylamphetamines. It seems that the principal offender and supplier was Dorry Dawid, but the applicant was identified, together with Dawid, as having supplied an individual, Neil Turner, and others with methylamphetamine. Dawid would travel to Sydney for supplies — the applicant made the trip once — and the applicant would then dilute the methylamphetamine using a cutting agent. Intercepted conversations revealed that they each stood to receive $60,000 from each kilogram they sold. Police eventually arrested the applicant. Found in his possession were three mobile phones, the sum of $16,750 in cash and a small quantity of cocaine.
After he was sentenced, the applicant was sent to Margoneet Prison. In October 2014, prison authorities warned him of a threat to his safety, and he was moved to Loddon Prison. On 9 November 2015, however, the applicant was attacked by another prisoner, aided by two others. In a life-threatening attack, he was severely cut across face, throat and ear. The applicant was taken to Bendigo Base Hospital, and required 33 stitches, leaving a raised and very visible scar. Notwithstanding the fact that the attack was captured on CCTV footage, nobody has been charged over the attack.
As a result of the attack the applicant has ongoing pain and disfigurement. His counsel submitted that the effect of the attack and the pain and suffering it caused has had a significant psychological effect on him. It was submitted that the applicant was ‘psychologically frail’ at the time of sentence. In the written case it was submitted that the sentencing judge found that the applicant was suffering depressive symptoms, although at the time of sentence ‘this was understandably a matter of mild significance’. Counsel argued that the applicant’s ‘pre-sentence abstinence from drug abuse likely assisted him to cope with these symptoms, as did medication’. In prison, following sentence, he continued to be medicated to manage the depressive symptoms.
Counsel for the applicant contended that the attack worsened the applicant’s situation significantly. He has been diagnosed by an occupational and forensic psychiatrist, Dr Leon Turnbull, as suffering post-traumatic stress disorder (‘PTSD’) as a result of the attack. In his report dated 16 April 2018, having made the ‘formal diagnosis’ of PTSD, Dr Turnbull remarked:[3]
… As is so often the case in PTSD, people tend to develop a parallel major depressive disorder but he has so far resisted that, and that is probably because of his keen motivation and determination.
Because of his PTSD, his experience in custody has probably become more onerous simply from a psychological perspective as he as [sic] constantly fearful for his safety, has disturbed sleep, and daytime flashbacks intrude on his thinking. It also makes having relationships with co-prisoners difficult as his trust is eroded.
His relationship with Corrections is also fractured and he is dissatisfied and significantly frustrated. It is not my opinion that this amounts to a separate psychological condition but it likely serves to worsen his overall mental state.
…
The standard treatment for PTSD is trauma focused psychotherapy combined with anti-depressant medication. I doubt his psychologist in prison is providing him that, although of course I would be happy to be corrected.
Once he is released, [the applicant] will be able to consult a psychologist with expertise in trauma and have 12 sessions where he works through the incident to desensitize himself. I would expect the condition to remain much the same throughout the remainder of his incarceration; in my opinion, that amounts to his experience being modestly more onerous.
[3]Emphasis added to this and following passages.
We note, however, that earlier in his report of 16 April 2018, Dr Turnbull observed:
[The applicant] did not describe himself as depressed but he suffered ongoing anxiety in the form of fear for his safety and there is significant frustration about his progress through custody and ratings and the like. He is not satisfied with the information he has received from those in charge of his care.
There are recapitulative nightmares of the slashing, and the same content informs his flashbacks. Interaction with other prisoners and the multiple environments from in custody [sic] increase his anxiety and hypervigilance, and he is almost constantly on edge about his safety. His psychological concern is accompanied by physical tension, cardiac palpitations, and sweatiness.
He has not succumbed to suicidal thinking, but occasionally comes close to abandoning all hope. He has firm plans for his future in place and those include a permanent divorce from drugs.
…
[The applicant] had pre-exiting experiences of depression that was entangled in his drug use, and I am probably less confident than Bernard Healey [a psychologist] that he could properly be described as suffering a diagnosable depressive disorder during that period. Either way, depressive symptoms have troubled him, though with successful abstinence from drugs they have certainly lessened.
In a supplementary report, dated 12 September 2018, Dr Turnbull said:
Post-traumatic Stress Disorder and Major Depressive Disorder are common allies. They often each serve to worsen the other. In the skewed population that I see clinically and for reports, it is more common than not that those presenting with a Post-Traumatic Stress Disorder also have a parallel Major Depressive Disorder. The presence of both disorders then serves to make it more difficult to treat the other.
In my initial report, I was fairly restrained applying psychiatric diagnoses and I agreed with Dr [sic] Healey that this man suffered depressive symptoms but I shied away from diagnosing a depressive disorder.
Having now reassessed him, the most striking phenomenon suggesting that he did and still does have a diagnosable depressive disorder was that when he tried to reduce his antidepressants, there was a distinct worsening of his mental health in the depressive realm and he had to resume his usual dose of desvenlafaxine.[[4]] That suggests his depression is more than a reaction to circumstances and now has a biological component.
At today’s assessment, I refrained from exploring the PTSD in much detail and focused on depressive elements of his health, and what I would say is that this man continues to have depressive symptoms that are troubling and only in part controlled by his medication.
The ongoing factors that maintain his depression are those at a biological level i.e. brain chemistry, the assault itself, and ongoing Post-traumatic Stress Disorder which acts to remind him of unpleasant memories, and the overarching trajectory that his incarceration has since taken and his frustrations that has led him to hold.
[4]An anti-depressant medication.
In support of the application, counsel for the applicant relied on the propositions set out by Redlich JA in Nguyen:[5]
[5]R v Nguyen [2006] VSCA 184, [36]–[37] (‘Nguyen’) (citations as in original).
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;[6]
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[7]
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;[8]
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[9]
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[10] or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[11]
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[12]
[6]R v Eliasen (1991) 53 A Crim R 391 at 394; R v Rostom [1996] 2 VR 97 at 101; R v WEF [1998] 2 VR 385 at 388; R v Wooden [2006] VSCA 97 at [7].
[7]R v Smith (1987) 27 A Crim R 315; R v Eliasen at 394; R v Rostom at 99; R v WEF at 389; R v Holland (2002) 134 A Crim R 451 at [2], [35]; R v McLachlan (2004) 8 VR 403 at [10]; R v SH [2006] VSCA 83 at [9].
[8]R v Babic [1998] 2 VR 79 at 80, 82; R v McLachlan at [10]; R v WEF at 388.
[9]Knights v R (1993) 70 A Crim R 105 at 109–110; R v Maniades [1997] 1 Qd R. 593 at 597; R v Ahmed [2005] VSCA 279 at [11].
[10]R v Ahmed at [18]; R v SH at [25]-[26].
[11]R v Eliasen, at 396; R v Rostom at 103; R v SH [2006] VSCA 83 at [25]. The reference to ‘miscarriage of justice’ is found in such cases as R v McLachlan at [10] and R v Ahmed at [11].
[12]R v Eliasen at 396; R v Rostom at 102-3. The test is different in NSW and Queensland. See R v Fordham (1997) 98 A Crim R 359 at 377-8; R v Durocher (2003) NSWCCA 299; R v Maniadis [1997] 1 Qd R 593.
Counsel for the applicant submitted that material relating to the attack and its sequelae — and in particular, the two reports of Dr Turnbull — throws significant new light on pre-existing facts. It is in accordance with the evidence and with common sense, counsel submitted, that the attack and the trauma it caused to the applicant ‘affected and worsened the pre-existing depressive symptoms which he suffered at the time of sentence’. Counsel contended that, although PTSD is a free-standing condition which appeared following the attack, ‘it does not obliterate or mask the pre-existing condition’. The attack worsened the applicant’s ‘depressive situation, however categorised, which had been at issue at the plea’. Counsel argued that it is ‘neither necessary nor appropriate to complicate this analysis by speculating upon the weight to be attributed to PTSD as against a worsening in his depressive symptoms’. The real question is whether the evidence of subsequent events demonstrates the true significance of facts in existence at the time of the sentence. It does so in this case, counsel submitted, ‘irrespective of the way the depressive symptoms be categorised’.
In written submissions, the respondent’s counsel drew attention to what had been said about the applicant’s depression by his counsel on the plea:
[COUNSEL] … it’s quite clear that he suffered from some level of depression at the time of the offending which … can’t be distinguished from the offending itself and plays a role in it.
We want to characterise that, hopefully within the spirit of Verdins’ case,[[13]] as a matter of moderate but real significance. It’s moderate. He doesn’t suffer from psychosis.
[13]R v Verdins (2007) 16 VR 269.
HER HONOUR: It’s on the lower moderate side.
[COUNSEL]: I’d submit that’s — we accept that characterisation with respect, only it’s there, it’s a factor, it’s not the only factor and there are other factors that can also play a role in clemency here, and the personality characteristics I do rely on, and just the situation he was in with his marriage also we rely upon. They’re there, they’re points of distinction, they’re relevant but at the end of the day this is not one where a major discount is warranted for a serious psychiatric condition.
…
[COUNSEL]: Now, in terms of what happens to him in incarceration we are seeking that Your Honour further mitigate the sentence. I mean it is an artificial whittling process that is sought by defence counsel all the time in these situations, but it’s hard to characterise it any other way. But here there is a danger of incarceration for him that, because he’s got a depressive condition, he’s prescribed Pristiq.[[14]] It’s being managed and a lot of people who go to prison — I say a lot. I mean there’s some incredible number in community of people who suffer from depression. It’s depressing to go to prison.
So everyone who goes in, there is an issue about that when they go there. However, he’s different. He does have a pre-existing condition and what Mr Healey [psychologist] says is that that will get worse. That will be — adversely impact. Your Honour will simply have to say about that that he’ll just have to live with it. That’s the fact. But it’s still a matter in mitigation in that whittling manner that I refer to. It has relevance and that’s the way we put it.
…
[COUNSEL]: … I have made the — one might say the Verdins point and we accept Your Honour’s comment that it's a moderate extent, but you will see that I think we put the word ‘moderate’.
HER HONOUR: I think I said ‘low-moderate’, didn’t I?
MR MORRISSEY: You may have said low-moderate, that’s true, Your Honour. Well, Your Honour, it falls to Your Honour to make that characterisation, but what I’m doing is putting the materials before you here. The condition that he suffers from is depression, it's not some psychotic sort of illness. We accept that that’s the case.
[14]An anti-depressant.
In her reasons for sentence the judge said:
Mr Bernard Healey saw you for psychological counselling on many occasions over the last 12 months, and he reports that you consider yourself to have been depressed since your mother abandoned the family. You have been taking anti-depressant medication more recently. Mr Healey’s opinion is that drug use at the time of your offending had the effect of relieving your symptoms of depression and anxiety and had an adverse impact on your reasoning and sense of moral code.
[Counsel] submitted on your behalf that for this reason your moral culpability should be reduced by a moderate degree. I take the view that the degree of reduction should be slight. I also take into account that the experience of prison will likely worsen your depressive symptoms.
So far as the suggestion that the applicant had a depressive disorder — as opposed to having depressive symptoms — is concerned, there was little in the psychological reports tendered on the plea to support it. Counsel for the applicant tendered a report of Mr Bernard Healey, consultant clinical psychologist, dated 3 July 2014, and an addendum to that report, dated 4 July 2014. Mr Healey reported that the applicant ‘feels he may have experienced a measure of depression’ at age 22, ‘as well as resentment over loss of contact with his mother’; and said that the applicant at times ‘experiences depression over his overall situation and, as his plea date draws near, has become even more depressed’. The applicant ‘had experienced longstanding problems with depression, consistent with family and marital difficulties’. Mr Healey said that the applicant’s ‘depression, stress and anxiety gained some temporary relief in the detachment and excitation produced by abuse of (and ultimately addiction to) the potent stimulant “ice”, which would have adversely impacted upon his reasoning and sense of moral code’.
In this Court, the respondent’s counsel submitted that the matters relied on by the applicant as ‘fresh evidence’, when properly considered, are not sufficient to establish fresh evidence. It was submitted that the significance of the applicant’s condition was known to the court at the time of sentencing. The sentencing judge was assisted by a psychological report and oral submissions from senior counsel as to the extent of the symptoms and their relevance to the sentencing process. It cannot be said that the court was not in receipt of accurate and complete information as to the state of the applicant’s psychological health at the time of sentencing. Indeed, the judge reduced the applicant’s moral culpability as a result of his depressive symptoms, and took into account that the experience of prison will likely worsen his depressive symptoms. Counsel for the respondent argued that the attack in November 2015 and its sequelae do not provide fresh insight into the true state of the applicant’s psychological health at the time of sentencing. Rather, so it submitted, ‘they were new and distinct events creating new and distinct consequences’.
In our opinion, the respondent’s submissions should be accepted.
As was explained in Babic[15] — the judgment in that case being the source of the third proposition formulated by Redlich JA in Nguyen[16] — evidence of an event occurring after sentence, which is said to make the sentence imposed excessive, is inadmissible in an appeal against sentence. In Babic, after he had been sentenced to imprisonment for recklessly causing serious injury, the applicant suffered a severe back injury whilst working in the prison garden, the pain of the injury rendering him unable to cope with the everyday rigours of prison life. He had no previous history of back pain. Leave to appeal against sentence was sought on the basis that the physical condition of the applicant was such that the burden of imprisonment was ‘harsh upon him and accordingly the Court of Appeal should sentence him to a different sentence’. Counsel for the applicant submitted, in effect, ‘that any event after sentence which will make the sentence bear considerably more heavily on the prisoner can lead to a revision of the sentence by an appellate court’.[17]
[15]R v Babic [1998] 2 VR 79 (‘Babic’).
[16]See [13] above.
[17]Babic, 80.
Brooking JA (with whom Winneke P and Ashley AJA agreed) explained that an event occurring after sentence is imposed, which renders the sentence excessive, is a matter for the Executive in the exercise of the prerogative of mercy, not for an appellate court:[18]
The present case does not concern evidence of events occurring prior to sentence, as to which it has been held by courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order to avoid a miscarriage of justice: R v Abbott (1985) 17 A Crim R 355; R v Many (1990) 51 A Crim R 54 at 61–2; R v Knights (1993) 70 A Crim R 105; R v Maslen and Shaw (1995) 79 A Crim R 199 at 206–7. The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday [1981] 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker JJ.; R v Many (1990) 51 A Crim R 54 at 61–2; R v Maslen and Shaw (1995) 79 A Crim R 199 at 206–7. So it was laid down in R v Dorning (1981) 27 SASR 481 that evidence of a prisoner’s marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court: see further O’Shea v R (1982) 31 SASR 129 and R v Smith (1987) 44 SASR 587.
These authorities recognise, as did two early decisions of the Court of Criminal Appeal in England (R v Green (1918) 13 Cr App R 200 and R v Ferrua (1919) 14 Cr App R 39), that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v Bailey (1988) 35 A Crim R 458.
[18]Ibid 80–1 (emphasis added to this and following passages).
In WEF, Winneke P (with whom Charles JA and Hampel AJA agreed) observed:[19]
The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic [1998] 2 VR 79, per Brooking JA at 80–81.
However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence. …
[19]R v WEF [1998] 2 VR 385, 388–9 (‘WEF’).
In the present case, it is not suggested that the applicant was suffering from PTSD — or any symptoms of PTSD flowing from a traumatic event — prior to being sentenced in July 2014. Indeed, the ‘fresh’ evidence upon which the applicant seeks to rely, is that the PTSD from which he is now said to suffer — manifested by his constant fear for his safety, disturbed sleep, and daytime flashbacks that intrude on his thinking — is directly related to the attack upon him in prison in November 2015. Even accepting that PTSD and Major Depressive Disorder are ‘common allies’ which ‘often each serve to worsen the other’, the ‘fresh’ evidence sought to be adduced establishes overwhelmingly that the November 2015 attack is the source of the applicant’s current condition. Neither the evidence of the attack, nor the PTSD flowing from it, can realistically be said to explain the true significance of facts in existence at the time of the sentence; that is, the applicant’s depressive symptoms. For those reasons, the so-called ‘fresh’ evidence upon which the applicant seeks to rely is inadmissible.
The facts of the present case may be contrasted with those in SH.[20] In SH, the female applicant had been sentenced to imprisonment for robbery and other offences. The evidence tended to show that the applicant had a depressive illness at the time of offending, and that she had a history of severe developmental trauma. Following her imprisonment, the applicant was subjected to a violent attack by another prisoner, attended by unconsciousness, severe anal bleeding and pain. She subsequently suffered distress, nightmares, panic attacks, incontrollable shaking and incontinence, and was diagnosed with PTSD. Importantly, a psychiatrist assessed the applicant as a person ‘with a history of severe developmental trauma whose traumatic experiences have been reactivated by a further violent assault in prison’.[21] The assault in prison caused the applicant to suffer ‘a substantial deterioration and aggravation of her previous psychological condition’.[22] In those circumstances, the Court was led to conclude that the matters revealed by the fresh evidence were ‘relevant to the true significance of the facts that were in existence at the time of sentence’.[23] Hence, the evidence was admitted.
[20]R v SH [2006] VSCA 83 (Warren CJ, Charles and Chernov JJA) (‘SH’).
[21]Ibid [16].
[22]Ibid [21].
[23]Ibid [25].
As we have said, however, in the instant case there is no evidence that the applicant was suffering from PTSD, or any symptoms flowing from a traumatic event, prior to being sentenced. The evidence of the prison attack and its ramifications do not explain or elucidate the true significance of the applicant’s pre-existing depressive symptoms. The putative appeal based on fresh evidence relating to the prison attack therefore has no prospects of success. That being the case, it would be futile to grant an extension of time.[24]
[24]See Madafferi v The Queen [2017] VSCA 302, [11].
We would also refuse an extension of time with respect to the further proposed ground, which revolves around the suggestion that the applicant faces ‘increasing and volatile hardship’ in custody because of his relationship with his partner.
It was submitted that the applicant is in a relationship with a former barrister, who has attracted a degree of notoriety in recent times because she has been exposed as a police informer. The applicant accepted that his partnership with the former barrister, and the claim that they have two children, was not disclosed on the plea. Counsel for the applicant submitted, however, that the evidence reveals that the authorities have concerns for the applicant’s safety, arising not by virtue of the applicant’s own acts, but because of concerns attaching to his partner, the former barrister, who visits him still. The applicant’s security status restricts his access to facilities and programs, and his ‘residual freedoms’. Thus, his current situation is ‘harsher than it should be’, and his access to parole ‘is potentially compromised’.
Counsel for the applicant sought to rely on some observations made by Priest JA and Croucher AJA in Dickman.[25] In that case, however, the appeal against sentence did not succeed on a ‘new evidence’ ground, but upon a ‘parity’ ground. Given that the sentencing discretion fell to be exercised afresh, it was legitimate to take into account the events that have occurred since the applicant was originally sentenced. That is not this case.
[25]Dickman v The Queen(No 2) [2017] VSCA 351, [101]–[103].
Evidence of what has transpired since the applicant was first sentenced, as a result of his relationship with the former barrister, is not fresh evidence. The evidence cannot properly be said to ‘throw a different light on circumstances which existed at the time of sentence’. None of the material put before the sentencing judge said anything of a relationship with the former barrister (or of any children with her). Indeed, Mr Healey spoke of the applicant’s apprehension on 3 August 2011 as heralding ‘marked changes’ in the applicant’s life and observed:
Unfortunately, his partner extracted considerable funds from him to purchase requisites for the baby she was expecting; he learned just before the birth, however, that the baby wasn’t his, and was very distressed by the deceit.
Further, under the heading ‘Relationships, Interests & Social Involvement’, although Mr Healey discussed the applicant’s failed marriage (which did not produce children), not a word was said about the applicant having a current partner, let alone a partner who was a former barrister.
We also note that Dr Turnbull in his report of 16 April 2018, stated that the applicant was married for eight years and ‘has no children’. In neither that report, nor his later report of 17 September 2018, is there any mention of the applicant’s current partner.
The further proposed ground relying on fresh evidence concerning the ramifications of his relationship with the former barrister is devoid of merit. It would be pointless to grant an extension of time to permit it to be agitated.
The application for extension of time will be refused.
---
0
4
0