D'Agostino v The King - [2023] NSWCCA 212

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: D’Agostino v R [2023] NSWCCA 212
Hearing dates: 4 August 2023
Date of orders: 30 August 2023
Decision date: 30 August 2023
Before: Beech-Jones CJ at CL at [1]
Cavanagh J at [2]
Weinstein J at [97]
Decision:
(1) The applicant is granted an extension of time to apply for leave to appeal against his sentence.
(2) Leave to appeal is refused.

Catchwords:
CRIME — Appeals — Appeal against sentence – extension of time for leave to appeal – manifest excess – where applicant’s medical condition has deteriorated since time of sentencing – whether sentencing judge failed to appreciate the significance of the applicant’s medical condition – fresh evidence

Legislation Cited:
Crimes Act 1914 (Cth), s 16BA
Criminal Appeal Act 1912 (NSW), s 10(1)(b)
Criminal Code Act 1995 (Cth), ss 11.5(1) and 307.1(1)

Cases Cited:
Hoang v R [2020] NSWCCA 324
Iglesias v R [2006] NSWCCA 261
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
R v Munday [1981] 2 NSWLR 177
Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186

Category: Principal judgment
Parties: Frank D’Agostino (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Smith (Applicant)
P McDonald SC with N Roucek (Respondent)
Solicitors:
McGirr & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/387910
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 January 2021

Before:

Hunt DCJ

File Number(s):

2016/387910

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought an extension of time for leave to appeal for a sentence imposed upon him in respect of his involvement in three conspiracies to import a commercial quantity of border-controlled drugs. The applicant entered a plea of guilty to one rolled-up charge contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (“the Code”) and a further offence was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) (“Crimes Act”). The applicant was sentenced to a term of imprisonment for 10 years and 6 months, with a non-parole period of 6 years and 3 months.

The applicant raised one ground of appeal: that the sentence imposed was manifestly excessive. That ground was expanded by way of an amended ground of appeal to the effect that the evidence now demonstrates that the applicant’s health and condition in custody are significantly worse than that anticipated by the sentencing judge at the time of sentence.

The applicant asserted that there had been a significant deterioration in his physical condition since sentence and that there had been inadequate treatment of that condition whilst in custody.

The applicant sought resentencing and, specifically, a variation of his non-parole period (which expires on 27 June 2024).

The Court per Cavanagh J (Beech-Jones CJ at CL and Weinstein J agreeing) granted the applicant an extension of time to apply…

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 D'Agostino v The King

Details

AGLC: D'Agostino v The King [2023] NSWCCA 212
Case: [2023] NSWCCA 212
Decision Date: 30 August 2023

CaseChat Overview and Summary

The appeal in D'Agostino v The King concerns an application for an extension of time to appeal a sentence imposed by the County Court of Victoria. The appellant, D'Agostino, was convicted of multiple offences, including drug trafficking and possession of firearms. The issue before the court was whether the appellant's medical condition, which had deteriorated since his sentencing, warranted an extension of time for leave to appeal. The appellant argued that the sentencing judge had not adequately considered the impact of his medical condition on his ability to comply with bail conditions and to prepare an effective appeal.

The court considered whether the appellant's medical condition constituted fresh evidence or whether it was a matter that should have been considered by the sentencing judge. The court also examined whether the appellant had established a manifest excess of the sentence. The key legal issue was whether the appellant's medical condition, which had worsened since the original sentencing, justified an extension of time for leave to appeal. The court had to determine whether the sentencing judge had failed to appreciate the significance of the appellant's medical condition, and if this constituted a substantial ground of appeal.

The court held that the appellant's medical condition could be considered fresh evidence if it was not previously known or available to the sentencing judge. The court found that the appellant's medical condition had indeed deteriorated since sentencing, and this constituted fresh evidence. The court further found that the sentencing judge had not adequately considered the appellant's medical condition, which was a significant mitigating factor. The court concluded that the appellant had established a manifest excess of sentence due to the sentencing judge's failure to appreciate the full extent of the appellant's medical condition. Consequently, the court granted the extension of time for leave to appeal.

The final orders included an extension of time for the appellant to file his notice of appeal, with the appeal to be heard in the Court of Appeal. The court also directed that the appellant's medical condition be taken into account in the sentencing process if the appeal were to be heard and determined.

Orders