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Eden v The King

Eden v The King

Case [2023] NSWCCA 31 24 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Eden v R [2023] NSWCCA 31
Hearing dates: 31 January 2023
Date of orders: 24 February 2023
Decision date: 24 February 2023
Before: Gleeson JA at [1]
Fagan J at [2]
Dhanji J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME — appeals — appeal against sentence — whether there is a miscarriage of justice on the basis that evidence was not before the sentencing judge – where the applicant suffers from Foetal Alcohol Spectrum Disorder – whether an impairment in executive functioning in the context of offending impacted the assessment of objective seriousness – where new evidence had the capacity to undermine the case led on sentence – where the sentencing judge gave significant weight to the applicant’s subjective case – refusal to admit new evidence – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Anderson v R [2022] NSWCCA 187
Barnes v R [2022] NSWCCA 140
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Clarke Jeffries v R [2019] NSWCCA 56
DS v R; DM v R [2022] NSWCCA 156
Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Dodd (1991) 57 A Crim R 349
R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Wendy Olive Lawrence [2005] NSWCCA 91
Wentworth v R [2022] NSWCCA 293

Category: Principal judgment
Parties: Hayden Eden (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Thomas (Applicant)
E Nicholson (Respondent)
Solicitors:
Kim Bolas Legal Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/159322
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Eden [2021] NSWDC 623

Date of Decision:

19/11/2021

Before:

Lerve DCJ

File Number(s):

2020/159322

HEADNOTE

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

On 14 April 2021, the applicant pleaded guilty to an offence of armed robbery with wounding. The applicant was sentenced to a total term of 3 years and 9 months imprisonment, with a non-parole period of 2 years.

The sentencing judge considered the applicant’s subjective case and found that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were “enlivened to a very significant extent”, reducing the moral culpability of the applicant. The sentencing judge also made positive findings as to the applicant’s prosocial life and prospects of rehabilitation.

On appeal, the applicant sought to rely on a report of a clinical neuropsychologist, that concluded he suffers from FASD.

The applicant did not contend that the judge erred, but rather that there was a miscarriage of justice on the basis that the sentencing judge did not have available to him evidence that the applicant suffers FASD.

The Court held

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 Eden v The King

Details

AGLC: Eden v The King [2023] NSWCCA 31
Case: [2023] NSWCCA 31
Decision Date: 24 February 2023

CaseChat Overview and Summary

The matter of Eden v The King was brought before the court as an appeal against sentence. The applicant, Eden, sought to challenge the sentence imposed on them, contending that a miscarriage of justice had occurred due to the absence of specific evidence at the time of sentencing. This evidence related to Eden's condition of Foetal Alcohol Spectrum Disorder, which was argued to have impacted their executive functioning in the context of their offending. This, in turn, was claimed to have affected the assessment of the objective seriousness of the crime. The applicant contended that if the new evidence had been before the sentencing judge, it might have led to a different outcome.

The legal issues before the court revolved around the significance of new evidence presented post-sentencing and its potential impact on the original sentence. Specifically, the court had to determine whether the omission of the evidence regarding Eden's Foetal Alcohol Spectrum Disorder amounted to a miscarriage of justice, and whether this new evidence could have reasonably influenced the sentencing judge's assessment of the case. Another key issue was the extent to which the sentencing judge had considered the applicant's subjective circumstances and the implications of this consideration for the admissibility of new evidence.

The court meticulously examined the evidence and the arguments presented. It found that the sentencing judge had given significant weight to the applicant's subjective case, including the personal circumstances of the applicant. Despite the potential for the new evidence to undermine the case led on sentence, the court determined that it was unlikely to have altered the outcome substantially. The court also noted that the refusal to admit new evidence did not result in a miscarriage of justice, as the sentencing judge had already adequately considered the applicant's personal circumstances. Consequently, the appeal was dismissed.

Orders