Brink v The Queen - [2010] NSWCCA 217

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Brink v R [2010] NSWCCA 217

FILE NUMBER(S):
2008/12570

HEARING DATE(S):
4 August 2010

JUDGMENT DATE:
22 September 2010

PARTIES:
Anthony Brian Brink
Regina

JUDGMENT OF:
Macfarlan JA Hulme J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/12570

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
5 February 2009

COUNSEL:
In person (Applicant)
W. Roser SC (Respondent Crown)

SOLICITORS:
Commonwealth Director of Public Proseuctions (Respondent)

CATCHWORDS:
CRIME – sentencing – whether sentencing proceedings miscarried because evidence as to applicant’s disability not fully understood until after sentence imposed – whether fresh evidence should be admitted in the appeal

LEGISLATION CITED:
Criminal Code 1995 (Cth)
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Einfeld v R [2010 NSWCCA 87]
Iglesias v R [2006] NSWCCA 261
Springer v The Queen (2007) 177 A Crim R 13

TEXTS CITED:

DECISION:
Leave to appeal refused.

JUDGMENT:

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

2008/12570003
MACFARLAN JA
RS HULME J
McCALLUM J
22 September 2010

Anthony Brian Brink v R

Judgment

MACFARLAN JA: I agree with McCallum J.
RS HULME J: I agree with the order proposed by McCallum J. However I do so for reasons that differ from those that appeal to her Honour.
The material before the court made it clear that Freeman DCJ who sentenced the Applicant was aware of the Applicant’s artificial leg and the difficulties necessarily occasioned thereby, including an inability to run from any other prisoner disposed to cause trouble and the Applicant having to shower while balanced on one leg. Referred to in a forensic psychologist’s report, there was also before his Honour an account of concern on the part of the Applicant of not being able to replace his prosthetic limb should the need arise while he was in custody.
However, his Honour would have had no reason to believe that the replacement of the prosthesis would take as long to effect as the reasons of McCallum J reveal nor that replacement of items as simple as socks necessary to insulate the Applicant’s stump from the prosthesis would take the Corrective Services Department as long as 12 months with the Applicant being forced to suffer.
These problems have now been sorted out and I do not regard them having lasted so long as to justify interference with the sentence imposed by Freeman DCJ. In these circumstances it is unnecessary to decide whether evidence of the problems the Applicant has experienced with his prosthesis since sentencing should be received – see the cases referred to in Einfeld v R [2010 NSWCCA 87] at [43] et seq.
McCALLUM J: Anthony Brink pleaded guilty in the District Court to a charge of importing a marketable quantity of a border controlled drug (cocaine and heroin) contrary to section 307.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment. On 5 February 2009, Mr Brink was sentenced to imprisonment for eight and a half years with a non-parole period of five years. The sentence commenced from 31 May 2008, the date on which Mr Brink was arrested. Accordingly, he is eligible for release to parole from 30 May 2013.
On 7 March 2010, Mr Brink gave notice of an application for leave to appeal against the sentence. An appeal to this Court against sentence lies only with the leave of the Court: section 5(1)(c) of the Criminal Appeal Act 1912.
The sole ground of appeal relied upon by Mr Brink is:
The sentencing proceedings miscarried because evidence of the applicant’s disability and its significance was not fully understood until after sentence had been imposed.
The disability referred to in the ground of appeal is the fact that one of Mr Brink’s legs was amputated above the knee when he was aged 19. He now has a prosthetic leg.
Mr Brink does not have legal representation and requested to be excused from appearing at the hearing of the appeal due to the discomfort of travelling the long distance from the prison in which he is serving his sentence. Accordingly, the appeal was determined on the papers.
Circumstances of the offence
Mr Brink was arrested after he arrived at Sydney Kingsford Smith Airport on a flight from Johannesburg. His carry-on luggage contained three picture frames. He told Customs Officers that he was in Australia for a friend’s wedding and that the picture frames were gifts that another friend had asked him to give to the wedding couple. Upon inspection, the frames were found to have concealed within them 210.5 grams of cocaine and 281.9 grams of heroin. As at the date of Mr Brink’s arraignment in the District Court, the street value of the cocaine was between approximately $120,000 and $170,000 and the street value of the heroin was estimated to be between approximately $120,000 and $420,000.
Mr Brink participated in a taped interview on the evening of his arrest during which he told police that his travel arrangements had been made by an associate named Ken, who had provided him with the picture frames disguised as wedding presents. Mr Brink was to telephone Ken in South Africa after arriving in a hotel room booked for him by Ken. A person whom he did not know was to meet him at the hotel to collect the pictures.
Mr Brink told police that he had come to Australia in March 2008 under similar circumstances to deliver a painting, for which he was paid 3000 rand. He said that he was unemployed and receiving a disability pension and was in financial difficulty. He had made it known to his associates that he was seeking further income.

The sentence hearing

Mr Brink gave evidence at the proceedings on sentence. In relation to the previous trip to Australia which he had mentioned to police, Mr Brink said that he had no reason to believe that there were in fact any drugs in the first painting. It had been x-rayed and unwrapped by Customs Officers and he had subsequently been allowed to leave.
In respect of the second trip, however, he was suspicious because the people with whom he was associating “probably dealt in drugs”.
As to his personal circumstances, Mr Brink gave evidence regarding the accident which had resulted in his losing a leg. He was then 19 and in military service. As already indicated, the leg was amputated above the knee. Plainly in those circumstances, Mr Brink relies heavily on his prosthesis.
Mr Brink gave the following evidence:
“Q. And has that, I notice when you walked to the dock you walked with one leg very stiffly?
A. Yes
Q. It doesn’t bend much at the knee is that right?
A. It doesn’t because it’s amputated above the knee.
Q. Right okay does cause you any difficulties of has caused you any problems whilst you’ve been in custody?
A. It does cause me a few problems especially like when I’ve got to go to the shower and all that because normally when I’m at home I normally bath so in the bath it’s difficult I have to hop into the shower.
Q. Is it difficult having a shower you can’t wear your prosthesis?
A. No you can’t.
Q. And is it difficult to shower on one leg?
A. Well it’s not easy standing because if you slip you slip.
Q. And normally you’d have baths in a home environment?
A. Yes I would normally bath.
Q. And at the moment are things a little bit easier for you in the MRRC in that respect?
A. That’s correct.
Q. Why is that?
A. Because the shower is inside the cell it’s not as in Long Bay where they have a communal shower.
Q. Did you find that quite difficult?
A. It was difficult because they didn’t supply me with crutches for the first week when I was there.
Q. Do you still have crutches now?
A. No I don’t need them here because I can hold onto the bed when I need to go.
Q. And it would be obvious to the other prisoners that you have a disability?
A. Not always but they do you know ask me is there any problem and I tell them.
Q. Do you have any fears in relation to if you were, if someone was physical towards you in gaol?
A. Yes because there’s nothing I could do about that, I mean I couldn’t really defend myself and I couldn’t run away so yes I do worry about that.”
There was additional evidence at the sentence hearing in the form of a written report from a forensic psychologist, Ms Alex Edgar. Ms Edgar’s report included the following statement (at 10.2):
“Also as reported above, at 21 years of age, whilst serving in the military, Mr Brink was involved in a serious motor vehicle accident in which he lost his lower right leg. This injury significantly impacted upon his functioning and he struggled to adapt to the use of a prosthetic limb. He reportedly continues to experience pain and discomfort from the fit of his prosthetic limb. He informed me that he continues to experience some discomfort with his injury and, he is concerned about not being able to replace his prosthetic limb during his incarceration in Australia, should the need arise.”
The judge made express reference to the evidence of the psychologist in his remarks on sentence (at page 4.9). Separately, his Honour expressly acknowledged the physical difficulties presently suffered by Mr Brink and took that consideration into account as one of a number of factors on the strength of which he fixed the non-parole period at what he regarded to be the lower end of the range (page 6.4).
Argument on appeal
Mr Brink does not contend that the decision of the sentencing judge entailed error at the time it was made. The complaint identified in the Notice of Appeal and Mr Brink’s written submissions was that his prosthetic leg had not been maintained whilst he was in custody. Mr Brink stated that the prosthesis needed to be replaced “due to the foot disintegrating and the mechanical knee seizing intermittently”. He stated that authorities had been aware of the problem for at least a year but that, since he is a foreign national and not covered by Medicare, there had been lengthy discussions between departments about the cost and supply of a new prosthesis.
Mr Brink submitted:
“The undue stress on the applicant due to the lack of maintenance, the prospect of being immobile in the event of the failure of the prosthesis, the length of time afforded to replace the prosthetic leg constitutes “special circumstances”.
These “special circumstances” were not fully taken into account by the sentencing judge as they were not foreseen.”
Mr Brink subsequently filed an affidavit annexing medical records to sustain those submissions. The Crown also filed an affidavit annexing correspondence from Justice Health as to the present circumstances concerning the prosthesis. The first question is whether that evidence should be received.
It is well established that, in exceptional circumstances, this Court may exercise its jurisdiction to quash a sentence, notwithstanding the absence of error in the sentence first imposed. Ancillary to that power is the principle that, exceptionally, fresh evidence may be admitted to demonstrate that some less severe sentence is warranted. It is trite, however, that the power to intervene in a sentence imposed without error on the part of the sentencing judge is a narrowly confined exception to the fundamental principle of finality of proceedings.
The relevant principles were summarised by McClellan CJ at CL in Iglesias v R [2006] NSWCCA 261. There, his Honour explained (at [8]) that the conventional approach of this Court is not to receive evidence of events occurring after sentence where it is not suggested that the original sentence entailed error. That approach reflects the fact that the essential function of this Court is to determine whether or not there was error at first instance.
His Honour noted that, as an exception to the general approach, fresh evidence may be received in exceptional circumstances, such as to explain a medical condition which existed at the time of sentencing although the gravity of the condition was not fully appreciated at that time.
In a later decision in Springer v The Queen (2007) 177 A Crim R 13 at [3], McClellan CJ at CL gave examples of the kind of evidence of post-sentencing events that might be received in accordance with those principles. Relevantly for present purposes, the examples included evidence showing that the applicant’s treatment in custody has been “quite different” from the expectation gained from the evidence led before the sentencing judge.
The fresh evidence sought to be relied upon by Mr Brink is set out in his affidavit sworn 5 July 2010. That affidavit and the medical records annexed to it disclose the following matters relevant to Mr Brink’s appeal. Mr Brink requested stump socks on 11 June 2008 but did not receive them until 15 July 2009. He said that, during the intervening period, he had to make do with the two socks he had in his possession, which caused him great discomfort.
On 15 September 2008, Mr Brink notified authorities of a problem with the mechanical knee of his prosthetic leg. The medical notes confirm a request that day to have the prosthesis checked. He mentioned the matter again on 28 September 2008 and that is recorded in the notes.
Mr Brink states that his prosthesis was not checked until he was at Junee (presumably after he was sentenced in February 2009). He was ultimately seen by a rehabilitation specialist in Sydney on 7 October 2009, who noted that the existing prosthesis was “9 years old and worn out”. She prescribed a new prosthesis. However, the particular prosthesis prescribed was never provided, apparently because there was no funding for it because Mr Brink is a foreign national and is not covered by Medicare.
Mr Brink finally received a new prosthesis from Wagga Base Hospital on 10 May 2010. He states that it had to be returned on 17 May 2010 due to the foot coming loose, causing him to fall. He states that under normal circumstances he would spend time at a clinic having various adjustments made and tried but that this was not possible due to his incarceration. There was no evidence of any ongoing difficulties with the new prosthesis.
The fresh evidence sought to be adduced demonstrates a measure of hardship and delay encountered by Mr Brink in obtaining his new prosthesis. However, as disclosed by the material outlined above, there was evidence in relation to those matters before the sentencing judge which his Honour specifically took into account. In particular, the judge was aware of the prospect of increased hardship being encountered by Mr Brink by reason of his prosthetic leg and of the possibility of its needing to be replaced whilst Mr Brink remained in custody.
Accordingly, I am not satisfied that the material sought to be relied upon by Mr Brink discloses exceptional circumstances such as to warrant its being admitted as fresh evidence in the appeal.
For those reasons, I would refuse leave to appeal.
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LAST UPDATED:
24 September 2010