R v Clark

The applicant in this case pleaded guilty to fraud amounting to more than $30,000, committed by using the credit card of his housemate, a soldier deployed in Afghanistan, from August 2009 to February 2010. He was sentenced to imprisonment, suspended after nine months, for an operational period of three years. The applicant sought to appeal the sentence on the grounds that it was manifestly excessive, and sought leave to adduce further evidence of his mental health issues, including a diagnosis of post-traumatic stress disorder (PTSD), which had not been before the sentencing judge. The central legal issues were whether the further evidence was fresh and, if so, whether its admission would result in a miscarriage of justice.

The court recognised that the evidence was not strictly fresh, but found that it could still be admitted under a residual discretion in exceptional circumstances where refusal to admit it would result in a miscarriage of justice. The court found that the evidence was relevant and credible, and that the applicant's PTSD was a significant mitigating factor that had not been before the sentencing judge. The court found that the sentence imposed was manifestly excessive, and varied it to be suspended forthwith. The court granted leave to appeal and allowed the appeal, varying the sentence as noted.