Wentworth v The The King - [2022] NSWCCA 293

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wentworth v R [2022] NSWCCA 293
Hearing dates: 5 December 2022
Date of orders: 21 December 2022
Decision date: 21 December 2022
Before: Meagher JA at [1];
Beech-Jones CJ at CL at [33];
Garling J at [34]
Decision:
Dismiss the application for leave to appeal against sentence.

Catchwords:
CRIME – appeals – appeal against sentence – supply prohibited drug – where applicant has medical condition requiring surgery – where leave sought to adduce further evidence in support of appeal – whether further evidence establishes that no longer possible for applicant to pursue that surgery whilst in custody

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:
Hoang v R [2020] NSWCCA 324
JM v R [2008] NSWCCA 254
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 502
Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402

Category: Principal judgment
Parties: Shane Wentworth (Applicant)
Rex (Respondent)
Representation:
Counsel:

S Corish (Applicant)
C Curtis (Respondent)

Solicitors:
Gregory Goold Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/364552
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 December 2020

Before:

Hanley SC DCJ

File Number(s):

2019/364552

Judgment

MEAGHER JA: The applicant seeks leave to appeal against a sentence imposed by Hanley SC DCJ on 14 December 2020. He does so on the ground that his sentence “should be reduced having regard to the fresh evidence regarding his medical condition and availability of treatment in custody”. In doing so, he seeks the exercise of this Court’s power under Criminal Appeal Act 1912 (NSW), s 6(3).
The applicant pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), namely of supplying a large commercial quantity of a prohibited drug. The relevant drug was 1,4-Butanediol. On each occasion the drug supplied was to an undercover police officer. The first offence occurred on 9 September 2019 and involved a total of 100.35kg and the second on 16 November 2019 involving a total of 103.77kg. For each offence the standard non-parole period was 15 years.
He was arrested on 19 November 2019 and remained in custody bail refused at the time of his sentencing following his guilty pleas. The sentencing judge imposed an aggregate term of imprisonment of 8 years commencing on 19 November 2019 and expiring on 19 November 2027. The aggregate non-parole period was 4 years to commence on the same date.
More than two years before the offending occurred, the applicant underwent the attachment of a colostomy bag as a result of a bowel obstruction caused by ulcerative colitis. Long term it was proposed that the colostomy bag would be reversed by surgery involving two stages, the first a “completion proctocolectomy with defunctioning ileostomy” and the second a “reversal of ileostomy”.
The…

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 Wentworth v The The King

Details

AGLC: Wentworth v The The King [2022] NSWCCA 293
Case: [2022] NSWCCA 293
Decision Date: 21 December 2022

CaseChat Overview and Summary

In the case of Wentworth v The King, the applicant, Wentworth, sought leave to appeal against his sentence for supplying a prohibited drug. The primary focus of the appeal was whether Wentworth's medical condition, which required surgery, should have influenced the sentencing decision. The application for leave to appeal was made in the High Court of Australia, where the judges were tasked with determining whether additional evidence could be considered to support the appeal.

The legal issues at hand revolved around the appropriate considerations for sentencing in cases involving medical conditions and the extent to which new evidence could be introduced in an appeal against sentence. Specifically, the court had to decide if the evidence, which suggested that Wentworth's medical condition had deteriorated to the point where surgery was no longer possible while he was in custody, was relevant and could be taken into account.

The High Court, in considering the matter, emphasised the importance of ensuring that the appeal process was not abused and that new evidence was both relevant and significant. The judges noted that while Wentworth's medical condition was indeed a matter that could influence the sentencing, the evidence provided needed to be compelling enough to warrant reconsideration of the sentence. Ultimately, the Court found that the new evidence did not sufficiently establish that surgery was no longer possible while Wentworth was in custody, and therefore, the application for leave to appeal was dismissed.

The High Court's decision was clear and concise, upholding the original sentencing decision. No new evidence was admitted, and the appeal was dismissed, meaning Wentworth's sentence would stand as originally determined. This outcome underscores the stringent criteria that must be met for new evidence to be considered in an appeal against sentence.

Orders