R v Ashton

Case [2002] NSWCCA 498


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     R v Ashton [2002]  NSWCCA 498

FILE NUMBER(S):
60610/99

HEARING DATE(S):    11/12/2002

JUDGMENT DATE:      13/12/2002

PARTIES:
Regina v Scott Richard Ashton

JUDGMENT OF:        Howie J Buddin J    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     99/21/0126

LOWER COURT JUDICIAL OFFICER:   Nield DCJ

COUNSEL:
LMB Lamprati - Crown
R Jankowski - Applicant

SOLICITORS:
SE O'Connor - Crown
Leigh Johnson, Lawyers - Applicant

CATCHWORDS:
Criminal Practice and Procedure - Appeal - Fresh evidence admitted on applicant's mental state at time of sentence - extensive delay in hearing of appeal - sentence not served.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - s 23
Justices Act 1902 - s 51A
Crimes (Administration of Sentences) Act 1999- ss 92, 163
Criminal Appeal Act 1912

DECISION:
See para. 45.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60610/99

HOWIE J
BUDDIN J

FRIDAY 13 DECEMBER 2002

R v Scott Richard ASHTON

Judgment

  1. HOWIE J:  On 15 September 1999 the applicant was sentenced by his Honour Judge Nield to imprisonment for two years made up of a minimum term of 18 months and an additional term of 6 months. His Honour ordered that the sentence be served by way of periodic detention to commence on 30 September 1999. The applicant has not served one day of that sentence. The prison records reveal that he has been treated as “away without leave” for the entirety of his sentence. This is despite the fact that the applicant was not granted bail pending the hearing of this appeal until 18 April 2002 even though the application for leave to appeal was filed on 14 October 1999. This situation is made even more extraordinary when counsel appearing for the applicant has conceded that the sentence imposed by Judge Nield was not, on the material then before his Honour, excessive or otherwise erroneous.

  2. Notwithstanding these matters, at the conclusion of the hearing of the appeal I came to the view that the application for leave should be granted and the appeal allowed. I proposed that the sentence imposed by Judge Nield be quashed and in lieu that the applicant be sentenced to imprisonment for 18 months but that the sentence be suspended on the applicant entering into a bond for 18 months subject to certain conditions. As the applicant was not present at the hearing of the appeal, the matter was stood over for sentence and his bail continued until today. The following are the reasons why I came to the view that the appeal should be determined in the manner that I have proposed.

  3. On 25 March 1999 the applicant pleaded guilty in the Local Court to a charge of supplying cannabis contrary to s 23 of the Drug Misuse and Trafficking Act. That offence carried a maximum penalty of 10 years imprisonment. The applicant was committed to the District Court for sentence under the provisions of s 51A of the Justices Act and adhered to his plea before…

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R v Ashton [2002] NSWCCA 498
Case
[2002] NSWCCA 498
Decision Date

CaseChat Overview and Summary

In the case of R v Ashton, the appellant, a prisoner, sought an appeal against his sentence on the basis of fresh evidence regarding his mental state at the time of the sentence. The Court of Criminal Appeal was tasked with determining whether the fresh evidence could be admitted and whether it was sufficient to warrant a re-evaluation of the sentence. The Crown objected to the introduction of the new evidence, primarily because it would preclude the opportunity to cross-examine the expert witnesses, but the court allowed its reception, noting that the evidence was untested by the Crown and some of its opinions might be given little weight.

The fresh evidence, primarily comprising psychiatric reports, suggested that the applicant had developed symptoms of post-traumatic stress disorder stemming from his incarceration in 1994 and interactions with the police. The applicant had attended a psychologist in January 2000 and reported feelings of fear and hopelessness regarding any further incarceration. The psychologist concluded that any further incarceration would likely have dire consequences for the applicant's mental health and could trigger a psychotic breakdown. The court considered this evidence, along with the applicant's history of mental health issues and the significant delay in hearing the appeal, in deciding whether to intervene.

The Court of Criminal Appeal found that the fresh evidence provided a substantial basis for the applicant's appeal. The court accepted that the evidence suggested the applicant's mental state at the time of sentencing had not been fully appreciated and that any further incarceration could severely impact his mental health. Despite the Crown's arguments that the matter was more appropriately left to the Parole Board or the Commissioner for Corrective Services, the court concluded that the fresh evidence warranted a re-evaluation of the sentence.

The Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered the applicant be released on bail pending a new sentencing hearing. The court determined that the evidence demonstrated the applicant's mental state at the time of the original sentence was not properly considered and that any further incarceration would likely trigger a psychotic breakdown.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOWIE J

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Ratio Decidendi

Legal Principle Established

Established by: HOWIE J

In the present case the Crown submits that the evidence does not provide the basis upon which this Court could intervene and the matter is one properly left to the Parole Board to consider under its powers under s 163 of the Crimes (Administration of Sentences) Act to cancel the order for periodic detention on compassionate grounds or to the Commissioner for Corrective Services who may exercise powers under s 92 of that Act to grant the applicant exemptions from complying with the order. The fresh evidence relied upon is found substantially in psychiatric reports which have been annexed to an affidavit made by the applicant's father and which is dated 9 December 2002. The Crown objected to the reception of the evidence as to its form because it would be deprived of the opportunity of cross-examining the psychiatrist. However, the Court allowed the evidence to be received but on the understanding that the psychiatrist had not been called, his evidence was untested by the Crown and some of his opinions may, therefore, be given little, if any, weight. However, many of the Crown’s concerns about the evidence dissipated when counsel for the applicant stated that he was not relying upon any suggestion that at the date of sentence the applicant was suffering from a brain injury. A further affidavit was tendered at the hearing of the application annexed to which was a report of a psychologist. The Crown raised the same objection to this material but accepted its reception on the same understanding. As I have indicated, the applicant was sentenced on 15 September 1999. On 24 December 1999 he attended upon a psychologist, Dr Marlow. The report indicates that following the imposition of the sentence the applicant went to Greece for 3 months. He saw the psychiatrist again on 4 and 7 January 2000. The report contains a good deal of narrative material presumably obtained from the applicant as to events preceding the sentencing for this matter. Of particular relevance is the applicant’s account of his incarceration in 1994 due to his failure to comply with orders relating to the break-up of his marriage. The psychologist reports that, when relating these facts, the applicant was tearful and that it appeared to be painful for him to recall them. Dr Marlow reports that the applicant felt that prison would be intolerable for him and that his life was not worth living. He believed that he would be raped, assaulted and humiliated in prison. He said that he went to Greece because he became depressed, confused and desperate. The applicant complained of flashbacks to his period in custody, nightmares about police and criminals, and any recall of the events surrounding his incarceration produced anxiety reactions and reduced him to tears. The psychologist noted some psychotic thought processes in that the applicant believed that people could read his mind although this was not of significant influence on his ordinary life. The psychologist concluded that the applicant appeared to have developed symptoms of post-traumatic stress disorder arising from his incarceration and involvement with police in 1994. Dr Marlow reports that when he last saw the applicant in January 2000 he was still fearful of his incarceration. Dr Marlow believed that, until the question of his sentence could be finalised, the applicant would not receive any significant benefit from psychological treatment. The final paragraph of the report stated:In conclusion I would like to point out that any further incarceration of Mr Ashton is very likely to have dire consequences for his mental state, and is very likely to trigger a psychotic breakdown. Accordingly from the point of view of preserving Mr Ashton’s mental health, which is already precariously in the balance, it would be highly advisable that there be some way for him to serve his sentence other than by partial incarceration.