Col v R [2022] NSWCCA 279

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Col v R [2022] NSWCCA 279 Hearing dates: 9 December 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Davies at [1] Ierace J at [58] R A Hulme AJ at [59] Decision: Refuse leave to appeal Catchwords: CRIME – appeals – appeal against sentence – application for leave to appeal out of time – unrepresented applicant – dishonestly obtain property by deception – supply prohibited drugs ongoing basis – supply commercial quantity of prohibited drug – knowingly deal with proceeds of crime – need for satisfactory explanation of late lodging – no explanation given – no merit in any of the grounds of appeal raised – leave to appeal refused CRIME – appeals – factual error – where sentencing judge found applicant participated in Drug Court program – where applicant sought on appeal to lead evidence that he had not been through program – evidence available at hearing but not given – whether absence of evidence constituted a miscarriage of justice – where applicant recidivist offender – applicant abusing illicit drugs since 2004 – offending related to that abuse – where other material demonstrates error of no real substance – no miscarriage of justice occasioned CRIME – appeals – where applicant alleged his lawyer failed to tender letter of remorse and character references – where letter of remorse reconstructed for appeal – where character references not available on appeal – where parties bound by manner cases conducted at first instance – reconstructed evidence rejected CRIME – appeals – whether sentencing judge took into account effects of Covid-19 on applicant's time in custody – applicant in custody throughout pandemic – matters complained of by applicant both prior to and after sentence imposed – complaint relating to periods since applicant sentenced not admissible – matters prior to sentence not fresh evidence but new evidence – no miscarriage of justice caused by absence of evidence Legislation Cited: Crimes Act 1900 (NSW) ss 192E, 193B Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A Cases Cited: Khoury v R [2011] NSWCCA 118 Lowe v R [2013] NSWCCA 141 McCall v R [2010] NSWCCA 174 Momoa v R [2020] NSWCCA 328 R v Birks (1990) 19 NSWLR 677 R v Fordham (1997) 98 A Crim R 35 R v Lawrence [1980] 1 NSWLR 122 R v Sunderland (1927) 28 SR (NSW) 26 Roff v R [2017] NSWCCA 208 Rossall v R [2021] NSWCCA 200 Texts Cited: Nil Category: Principal judgment Parties: Ercan Col (Applicant) The King (Respondent) Representation: Counsel: In person (Applicant) C Curtis (Respondent)