Col v The The King - [2022] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Col v R [2022] NSWCCA 279
Hearing dates: 9 December 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Davies at [1]
Ierace J at [58]
R A Hulme AJ at [59]
Decision:
Refuse leave to appeal

Catchwords:
CRIME – appeals – appeal against sentence – application for leave to appeal out of time – unrepresented applicant – dishonestly obtain property by deception – supply prohibited drugs ongoing basis – supply commercial quantity of prohibited drug – knowingly deal with proceeds of crime – need for satisfactory explanation of late lodging – no explanation given – no merit in any of the grounds of appeal raised – leave to appeal refused
CRIME – appeals – factual error – where sentencing judge found applicant participated in Drug Court program – where applicant sought on appeal to lead evidence that he had not been through program – evidence available at hearing but not given – whether absence of evidence constituted a miscarriage of justice – where applicant recidivist offender – applicant abusing illicit drugs since 2004 – offending related to that abuse – where other material demonstrates error of no real substance – no miscarriage of justice occasioned
CRIME – appeals – where applicant alleged his lawyer failed to tender letter of remorse and character references – where letter of remorse reconstructed for appeal – where character references not available on appeal – where parties bound by manner cases conducted at first instance – reconstructed evidence rejected
CRIME – appeals – whether sentencing judge took into account effects of Covid-19 on applicant’s time in custody – applicant in custody throughout pandemic – matters complained of by applicant both prior to and after sentence imposed – complaint relating to periods since applicant sentenced not admissible – matters prior to sentence not fresh evidence but new evidence – no miscarriage of justice caused by absence of evidence

Legislation Cited:
Crimes Act 1900 (NSW) ss 192E, 193B
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B
Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A

Cases Cited:
Khoury v R [2011] NSWCCA 118
Lowe v R [2013] NSWCCA 141
McCall v R [2010] NSWCCA 174
Momoa v R [2020] NSWCCA 328
R v Birks (1990) 19 NSWLR 677
R v Fordham (1997) 98 A Crim R 35
R v Lawrence [1980] 1 NSWLR 122
R v Sunderland (1927) 28 SR (NSW) 26
Roff v R [2017] NSWCCA 208
Rossall v R [2021] NSWCCA 200

Texts Cited:
Nil

Category: Principal judgment
Parties: Ercan Col (Applicant)
The King (Respondent)
Representation:
Counsel:
In person (Applicant)
C Curtis (Respondent)
Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/153203
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Col [2021] NSWDC 89

Date of Decision:

25 March 2021

Before:

Mahony SC DCJ

File Number(s):

2019/153203

HEADNOTE

[This headnote is not to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Col v The The King

Details

AGLC: Col v The The King [2022] NSWCCA 279
Case: [2022] NSWCCA 279
Decision Date: 15 December 2022

CaseChat Overview and Summary

In the matter of Col v The King, the applicant, Col, sought leave to appeal against his sentence and the application for leave to appeal out of time. The case involved allegations of obtaining property by deception, supplying prohibited drugs on an ongoing basis, supplying commercial quantities of prohibited drugs, and knowingly dealing with the proceeds of crime. The application was heard by the court, which had to decide whether to grant leave to appeal out of time, considering the lack of a satisfactory explanation for the delay, and whether the grounds of appeal raised had merit. The court also examined whether the sentencing judge had taken into account the effects of Covid-19 on the applicant's time in custody and whether the absence of evidence relating to the applicant's participation in the Drug Court program and the tendering of a letter of remorse and character references constituted a miscarriage of justice.

The court found that there was no satisfactory explanation for the delay in lodging the application for leave to appeal, and that none of the grounds of appeal raised had merit. The court noted that the applicant was a recidivist offender who had been abusing illicit drugs since 2004, and that his offending was related to that abuse. The court also found that the absence of evidence relating to the applicant's participation in the Drug Court program and the tendering of a letter of remorse and character references did not occasion a miscarriage of justice, as the error was of no real substance and the parties were bound by the manner in which the cases were conducted at first instance. The court rejected the reconstructed evidence and held that the matters complained of by the applicant both prior to and after sentence imposed were not admissible as they related to periods since the applicant was sentenced. The court held that matters prior to sentence were not fresh evidence but new evidence and did not cause a miscarriage of justice.

The court held that the absence of evidence relating to the effects of Covid-19 on the applicant's time in custody did not occasion a miscarriage of justice, as the matters complained of by the applicant were both prior to and after sentence imposed. The court found that matters complained of by the applicant prior to sentence were not fresh evidence but new evidence, and that the applicant had not provided a satisfactory explanation for the delay in lodging the application for leave to appeal. The court also found that none of the grounds of appeal raised had merit, including the allegation that the applicant's lawyer failed to tender a letter of remorse and character references. The court rejected the reconstructed evidence and held that the parties were bound by the manner in which the cases were conducted at first instance. The court held that the absence of evidence relating to the applicant's participation in the Drug Court program did not occasion a miscarriage of justice, as the error was of no real substance. The court held that the applicant had not provided a satisfactory explanation for the delay in lodging the application for leave to appeal and that none of the grounds of appeal raised had merit. The court therefore refused leave to appeal.

The court ordered that the application for leave to appeal be refused. The court held that the applicant had not provided a satisfactory explanation for the delay in lodging the application for leave to appeal and that none of the grounds of appeal raised had merit. The court held that the absence of evidence relating to the effects of Covid-19 on the applicant's time in custody, the applicant's participation in the Drug Court program, and the tendering of a letter of remorse and character references did not occasion a miscarriage of justice. The court held that the parties were bound by the manner in which the cases were conducted at first instance, and that the reconstructed evidence was rejected. The court held that the applicant had not provided a satisfactory explanation for the delay in lodging the application for leave to appeal, and that none of the grounds of appeal raised had merit. The court therefore refused leave to appeal.

Orders