McClellan CJ at CL at 1; Hulme J at 21; Hall J at 22
DECISION:
Leave to appeal against sentence is refused
CATCHWORDS:
CRIMINAL LAW - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - murder - undiagnosed cancer - symptoms evident at time of sentencing - whether to allow fresh evidence of medical condition - re-sentencing in light of fresh evidence - whether imprisonment will be more onerous - risks of recurrence of cancer - whether a lesser sentence warranted in law
R v Bailey (1988) 35 A Crim R 458 R v Cartwright (1989) 17 NSWLR 243 R v Ehrenberg (unreported, NSWCCA, 14 December 1990 R v Goodwin (1990) 51 A Crim R 328 R v Munday [1981] 2 NSWLR 177 Smith (1987) 44 SASR 587
PARTIES:
Isidro Iglesias (Appl) The Crown
FILE NUMBER(S):
CCA 2006/1034
COUNSEL:
P Barrett (Crown) D Carroll (Appl)
SOLICITORS:
Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Appl)
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
70103/03
LOWER COURTJUDICIAL OFFICER:
Hidden J
LOWER COURT DATE OF DECISION:
13 October 2004
2006/1034
McCLELLAN CJ at CL HULME J HALL J
THURSDAY 20 JULY 2006
IGLESIAS, Isidro v REGINA
Judgment
1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed on him by Hidden J on 13 October 2004 when he was sentenced for the murder of Joseph Baird-Wallis. He pleaded guilty to the murder which occurred on 24 December 2002. The applicant was sentenced to 15 years imprisonment to commence on 25 December 2002 and to expire on 24 December 2017 with a non-parole period of 11 years to commence on 25 December 2002 and to expire on 24 December 2013.
2 At the time of the offence the applicant was living in Lismore with his five year old son. He was 53 years of age. He had taken his son to Byron Bay in December to spend the Christmas period with his estranged partner Ms Concannon who was the child’s mother. During that week he socialised with people at Apex Park, near Main Beach at Byron Bay, where the deceased also socialised. The deceased lived in crude premises in bushland near the Byron Bay Youth Centre.
3 On the afternoon of 24 December 2002, the deceased and the applicant had an argument and the deceased punched the applicant to the face several times. The applicant walked several kilometres to Ms Concannon’s house where he obtained a large knife and returned to the deceased’s dwelling. The deceased was asleep on a mattress. He was awoken and they again argued. The applicant then stabbed the deceased to the right side of the neck while the deceased was seated and stabbed him to the left side of the ribcage area, the more serious of the two wounds, while…
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.
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Details
AGLC
Iglesias v R [2006] NSWCCA 261
Case
[2006] NSWCCA 261
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the applicant, Iglesias, sought leave to appeal against the sentence imposed following his conviction for murder. The applicant had been sentenced to a term of imprisonment with a non-parole period of 20 years. The basis of the application for leave to appeal was the contention that at the time of sentencing, the applicant had an undiagnosed medical condition, which had not been brought to the attention of the sentencing judge. This condition, which was later diagnosed as cancer, resulted in symptoms that were evident at the time of sentencing. The legal issue before the court was whether fresh evidence of the applicant's medical condition could be considered, and if so, whether this warranted a re-sentencing hearing in light of the evidence. The court had to consider whether the imprisonment term would be more onerous given the applicant's medical condition and the risks of recurrence of cancer. Additionally, the court was required to determine whether a lesser sentence was warranted in law.
The court acknowledged the principle that fresh evidence may be considered in exceptional circumstances where it has a bearing on the sentence imposed. However, the court noted that the primary consideration in such cases is whether the fresh evidence could have reasonably been known or discovered at the time of the original sentencing hearing. In this instance, the court held that the evidence of the applicant's medical condition, while not known at the time of sentencing, did not provide a sufficient basis to warrant a re-sentencing hearing. The court reasoned that the evidence did not indicate that the imprisonment term would be more onerous, given that the applicant's medical condition was stable at the time of sentencing, and there was no clear indication that the risks of recurrence would significantly impact the applicant's ability to serve his sentence. Furthermore, the court determined that a lesser sentence was not warranted in law, as the evidence did not establish a compelling case for a significant reduction in the sentence imposed.
The court ultimately dismissed the application for leave to appeal, holding that the fresh evidence of the applicant's medical condition did not provide sufficient grounds to warrant a re-sentencing hearing. The applicant's conviction and sentence remained unaltered.