Wentworth v The The King

Case [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

  1. 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).

  2. 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.

  3. 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.

  4. 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”.

  5. The…

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Wentworth v The The King [2022] NSWCCA 293
Case
[2022] NSWCCA 293
Decision Date

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

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

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Ratio Decidendi

Legal Principle Established

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