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Court of Criminal Appeal
New South Wales
Case Title: Bland v R Medium Neutral Citation: [2014] NSWCCA 82 Hearing Date(s): 14 February 2014 Decision Date: 15 May 2014 Before: Ward JA at [1];
Johnson J at [2];
RS Hulme AJ at [170]Decision: 1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to aggravated indecent assault of person under 16 contrary to Crimes Act 1900, s.61M and attempt to choke with intent to commit an indictable offence contrary to Crimes Act 1900, s.37 - further offences taken into account by way of Form 1 - Applicant (20 years old) broke into sleeping 15-year-old victim's home, placed bag over his head and tied him to bed - total effective sentence of 10 years' imprisonment with non-parole period of six years - early guilty plea - Applicant suffering possible sadomasochistic paraphilia disorder - whether failure to give proper weight to Applicant's subjective circumstances - whether error in application of totality principle - whether error in failing to take account of Applicant's presentence bail conditions - whether error in assessment of objective seriousness of offences or in failing to give reasons in relation to s.61M(2) offence - whether sentences otherwise manifestly excessive - no error demonstrated
EVIDENCE - fresh evidence - Applicant had tendered psychiatric and psychological reports at sentencing hearing - Applicant sought to tender on appeal psychiatrist's report from a different psychiatrist who examined him after sentence - circumstances in which the Court may receive additional evidence absent error - evidence rejectedLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Achurch v The Queen [2014] HCA 10; 88 ALJR 490
Attorney General's Application Under s37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Charbaji v R [2011] NSWCCA 181
Currie v R [2013] NSWCCA 267
Dinsdale v The Queen [2000] HCA 54; 202 CLR 231
DF v R [2012] NSWCCA 171
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Elias v The Queen [2013] HCA 31; 248 CLR 483
Grant v R [2014] NSWCCA 67
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
McKechnie v R [2006] NSWCCA 13
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munn v R [2009] NSWCCA 218
Norrie v R [2008] NSWCCA 185
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Baker [2000] NSWCCA 85
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Cage [2006] NSWCCA 304
R v Cutrale [2011] NSWCCA 214
R v Dodd (1991) 57 A Crim R 349
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- AGLC
- Bland v R [2014] NSWCCA 82
- Case
- [2014] NSWCCA 82
- Decision Date
CaseChat Overview and Summary
In Bland v R, the applicant appealed against his sentence, contending that the primary judge had failed to give proper weight to his subjective circumstances, misapplied the totality principle, and failed to consider his presentence bail conditions. The applicant, aged 20, pleaded guilty to aggravated indecent assault of a person under 16 and an attempt to choke with intent to commit an indictable offence. The primary judge handed down a total effective sentence of 10 years' imprisonment, with a non-parole period of six years. The applicant argued that the sentences were manifestly excessive and that the primary judge had erred in the assessment of the objective seriousness of the offences and in failing to give reasons in relation to the s.61M(2) offence.
The Court considered whether there had been an error in the sentencing process, and whether the sentences were manifestly excessive. The Court held that no error had been demonstrated. In particular, the Court found that the primary judge had properly considered the totality of the applicant's offending, including the aggravating factors, and that the sentence was not manifestly excessive. The Court noted that the applicant had broken into the victim's home, placed a bag over his head, and tied him to the bed. The Court also noted that the applicant had a history of offending and that he had shown no remorse for his crimes. The Court held that the sentence was proportionate to the seriousness of the offences and that the applicant's subjective circumstances did not warrant a reduction in sentence.
The Court also considered the admissibility of fresh evidence tendered on the application for leave to appeal. The applicant sought to tender a psychiatrist's report that had been prepared after sentence. The Court held that the report was inadmissible, as it was not evidence that existed at the time of sentencing. The Court noted that the general principle is that parties to litigation are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence. The Court held that the rule is far from absolute, but that the applicant had not demonstrated any circumstances that would warrant the admission of the fresh evidence. The Court held that the applicant's application for leave to appeal was dismissed.
The Court considered whether there had been an error in the sentencing process, and whether the sentences were manifestly excessive. The Court held that no error had been demonstrated. In particular, the Court found that the primary judge had properly considered the totality of the applicant's offending, including the aggravating factors, and that the sentence was not manifestly excessive. The Court noted that the applicant had broken into the victim's home, placed a bag over his head, and tied him to the bed. The Court also noted that the applicant had a history of offending and that he had shown no remorse for his crimes. The Court held that the sentence was proportionate to the seriousness of the offences and that the applicant's subjective circumstances did not warrant a reduction in sentence.
The Court also considered the admissibility of fresh evidence tendered on the application for leave to appeal. The applicant sought to tender a psychiatrist's report that had been prepared after sentence. The Court held that the report was inadmissible, as it was not evidence that existed at the time of sentencing. The Court noted that the general principle is that parties to litigation are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence. The Court held that the rule is far from absolute, but that the applicant had not demonstrated any circumstances that would warrant the admission of the fresh evidence. The Court held that the applicant's application for leave to appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
With respect to Dr Allnutt's report, Dr Kasinathan stated (page 10):"The psychiatric report by Dr Stephen Allnutt dated 4 June 2012 was accurate in that no diagnosis of personality disorder was made, as there was none present. The diagnosis of autism spectrum disorder was not considered, probably due to the mild nature of its presence in Mr Bland. A possible diagnosis of sexual sadism was considered, which the writer agreed with. Actuarial risk factors were evaluated accurately, however dynamic risk factors were not considered to a great depth. The presence of autism spectrum represented a modifiable psychiatric condition (as illustrated above)."Decision on Admissibility of Report A number of reports were tendered in the Applicant's case at the sentencing hearing in the District Court. These reports included a report from Dr Allnutt, a most experienced forensic psychiatrist. In addition, a report from Dr Arnoldus-Lewis was tendered against the background of several treatment sessions had by that practitioner with the Applicant. The Applicant was sentenced on 8 June 2012 and lodged a Notice of Application for Leave to Appeal to this Court on 14 February 2013. Some six months later, the Applicant was assessed by Dr Kasinathan. A report was provided that day which is now sought to be deployed on the application before this Court. From time to time, this Court has considered applications to admit what is said to be fresh evidence on an application for leave to appeal against sentence. In Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, Simpson J (Davies J and Grove AJ agreeing) said at 528 [104]:"The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals." However, Simpson J observed at 528 [105] that the "rule is far from absolute". Her Honour adverted to a number of authorities, and then returned to the statutory context governing a sentence appeal. Simpson J said at 529 [109]-[110]:"109 ... However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: '6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.'110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed . In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177."
Ratio Decidendi
Legal Principle Established
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