Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: D'Agostino v R [2023] NSWCCA 212 Hearing dates: 4 August 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Before: Beech-Jones CJ at CL at [1] Cavanagh J at [2] Weinstein J at [97] Decision: (1) The applicant is granted an extension of time to apply for leave to appeal against his sentence. (2) Leave to appeal is refused. Catchwords: CRIME — Appeals — Appeal against sentence – extension of time for leave to appeal – manifest excess – where applicant's medical condition has deteriorated since time of sentencing – whether sentencing judge failed to appreciate the significance of the applicant's medical condition – fresh evidence Legislation Cited: Crimes Act 1914 (Cth), s 16BA Criminal Appeal Act 1912 (NSW), s 10(1)(b) Criminal Code Act 1995 (Cth), ss 11.5(1) and 307.1(1) Cases Cited: Hoang v R [2020] NSWCCA 324 Iglesias v R [2006] NSWCCA 261 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 R v Munday [1981] 2 NSWLR 177 Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 Category: Principal judgment Parties: Frank D'Agostino (Applicant) Rex (Respondent) Representation: Counsel: M Smith (Applicant) P McDonald SC with N Roucek (Respondent) Solicitors: McGirr & Associates (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2016/387910 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 January 2021 Before: Hunt DCJ File Number(s): 2016/387910 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought an extension of time for leave to appeal for a sentence imposed upon him in respect of his involvement in three conspiracies to import a commercial quantity of border-controlled drugs. The applicant entered a plea of guilty to one rolled-up charge contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) ("the Code") and a further offence was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) ("Crimes Act"). The applicant was sentenced to a term of imprisonment for 10 years and 6 months, with a non-parole period of 6 years and 3 months. The applicant raised one ground of appeal: that the sentence imposed was manifestly excessive. That ground was expanded by way of an amended ground of appeal to the effect that the evidence now demonstrates that the applicant's health and condition in custody are significantly worse than that anticipated by the sentencing judge at the time of sentence. The applicant asserted that there had been a significant deterioration in his physical condition since sentence and that there had been inadequate treatment of that condition whilst in custody. The applicant sought resentencing and, specifically, a variation of his non-parole period (which expires on 27 June 2024). The Court per Cavanagh J (Beech-Jones CJ at CL and Weinstein J agreeing) granted the applicant an extension of time to apply for leave to appeal but refused leave to appeal. Ground 1 The Court found: 1. Merely establishing a deterioration of a medical condition greater than anticipated by the sentencing judge would not ordinarily give rise to a successful appeal. More would be required. For example, that the sentencing judge sentenced on the basis of misapprehended facts: at [52]-[53]. Turkmani v R (2014) 244 A Crim R; [2014] NSWCCA 186 considered. 1. Fresh evidence may be admitted to establish that the significance of a medical condition was not appreciated on sentence. However, fresh evidence is evidence that was not available at the date of the sentencing hearing and could not have been adduced at that time. The evidence must also be capable of affecting the outcome: at [56], [61]. Hoang v R [2020] NSWCCA 324 and Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 considered. 1. In this case, the report of an expert audiologist was not considered to be "fresh" because it could have been obtained at the time of the original sentence: at [89]. 2. The sentencing judge accepted that the applicant was suffering from Meniere's disease and accounted for it on sentence. Further, the applicant did not establish that treatment for Meniere's disease could not be adequately provided in custody: at [93]-[94]. 3. The applicant was granted an extension of time to seek leave to appeal but leave to appeal was refused. JUDGMENT 1. BEECH-JONES CJ at CL: I agree with Cavanagh J. 2. CAVANAGH J: The applicant seeks leave to appeal from a sentence imposed upon him by his Honour Judge Hunt in the District Court on 29 January 2021 in respect of one offence of conspiracy to import a commercial quantity of border control drugs, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) ("the Code"). 3. A further offence contrary to ss 11.5(1) and 307.1(1) of the Code was also taken into account on sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). 4. The charges arose from the applicant's involvement in conspiracies to import commercial quantities of drugs, being heroin and cocaine. 5. The sentencing judge imposed a sentence of 10 years and 6 months commencing on 28 March 2018, with a non-parole period of 6 years and 3 months expiring on 27 June 2024. The total sentence expires on 27 September 2028. 6. There is only one ground of appeal: that the sentence is manifestly excessive. That ground is not based on a challenge to any findings of the sentencing judge but, rather, is based on one asserted fact, being that the applicant's time in custody has been and will continue to be significantly more burdensome than was appreciated by the sentencing judge at the time of sentence. 7. The applicant commenced his appeal out of time and requires an extension of time in which to apply for leave to appeal against his sentence (s 10(1)(b) of the Criminal Appeal Act 1912 (NSW)). The circumstances of the offending 1. As there is no challenge to the findings of the sentencing judge and the appeal is based on events which occurred after the sentence was imposed, it is only necessary to refer to the circumstances of the offending somewhat generally. 2. The offending conduct relates to the applicant's involvement in three conspiracies to import prohibited drugs into Australia. 3. Firstly, between 14 August 2014 and 13 January 2015, the applicant conspired with a number of other persons, including Joseph D'Agostino, Joseph Pirrello, Benjamin Sara and Jose Garcia, to import a commercial quality of heroin, (18 kilograms of pure heroin or 28 kilograms gross) into Australia. This is known as "the Fiji conspiracy". 4. Secondly, between 1 September 2015 and 31 March 2016, the applicant conspired with a number of other persons, being Joseph D'Agostino, Joseph Pirrello, Simon Spero, Jonathan Cooper, Richard Lipton, John Tobin, Stuart Ayrton, James Collins and others, to import a commercial quantity of cocaine (approximately 610 kilograms of cocaine (gross)) into Australia. This conspiracy was referred to as "the Saxon Progress conspiracy". As the sentencing judge observed, the applicant's involvement in these conspiracies was rolled up into the one charge. 5. Thirdly, in relation to the offence taken into account under s 16BA, between 13 January 2015 and 31 May 2015, the applicant conspired with a number of other persons, namely, Joseph D'Agostino, Joseph Pirrello, Francesco Pirrello, Michael Pirrello and others, to import a commercial quantity of cocaine (approximately 400 kilograms of cocaine (gross)) into Australia. This conspiracy was referred to as "the Eclipse conspiracy". 6. The sentencing judge described the applicant as a trusted lieutenant to his brother, Joseph D'Agostino, who was more significantly criminally involved in the conspiracies. 7. The events concerning the Fiji conspiracy involved the proposed importation of approximately 28 kilograms of heroin into Australia using a research vessel, the Northern Odyssey, which was intended to collect the drugs from Fiji. The importation failed after the drugs were seized in Fiji. The applicant was an active participant in some of the planning and preparation for that conspiracy. He attended meetings with co-conspirators and participated in discussions about arrangements to import the heroin. He was present when there were discussions with an undercover operative about the importation and methodology, the type of drug, the quantities and the transportation. Indeed, the sentencing judge accepted that he had a broad understanding about the nature and amount of drugs to be imported and that he was participating for potential financial reward. 8. After the Fiji conspiracy had concluded, the applicant then became involved in the Eclipse conspiracy. He attended a number of meetings with his co-conspirators, including his brother, and assisted in the development of a plan to import approximately 400 kilograms of cocaine, which would be collected from a Colombian ship. The plan was to use a boat belonging to his nephew or one of his co-conspirators to meet on the Colombian ship and transfer the drugs onto the boat. Again, the sentencing judge accepted that the applicant was an active participant in that conspiracy and that he expected to receive a share of the wholesale quantity of the drugs or equivalent value. When his brother went into hiding, the applicant assumed a greater role. 9. Similarly, the Saxon Progress conspiracy involved an attempt to import 610 kilograms of cocaine from Colombia. The applicant attended a number of meetings in respect of this conspiracy in company with his brother and another co-conspirator. He expected to receive a share of the wholesale quantity of the drugs or equivalent value. The sentencing judge found that the applicant acted as a conduit for information about the conspiracy between various co-conspirators and Joseph D'Agostino. 10. The sentencing judge accepted that the applicant was less criminally liable than his brother and other more senior participants in the conspiracy. 11. There is no challenge to any of these findings. Nor is there any challenge to the sentencing judge's acceptance of the applicant's subjective case, that is: 1. the applicant had demonstrated remorse and his remorse was not simply limited to concern for himself at having been caught; 2. the applicant had a prior good character and may have been motivated by his gambling and misguided sense of loyalty to his brother; 3. the applicant has good prospects of rehabilitation and is unlikely to reoffend; and 4. the applicant is using his time in custody constructively, including by undertaking rehabilitation courses and acting as a prosocial force in terms of his own commitment to freedom and lack of criminal behaviour. 1. Further, whilst the sentencing judge did not accept that there was any pre-existing psychological condition, the applicant was at the time of sentencing significantly depressed, which would make his time in custody more onerous. 2. The sentencing judge also made the following finding: "On the balance of all the material, although I am satisfied that he is receiving appropriate treatment in the custodial sentencing, there is no question that Mr Frank D'Agostino's Meniere's disease (or is a likely diagnosis for that) is making his time in custody physically harder…" 1. His Honour accepted that the applicant's time in custody would be made more onerous by both his physical and psychological deficits. His Honour also accepted that his time in custody would be made more onerous as a result of the COVID-19 pandemic. 2. Having assessed objective seriousness and determined that a 12.5% discount should apply on account of the early guilty plea, his Honour imposed the sentence. His Honour specified that he would make a relatively modest reduction on the non-parole period that would otherwise be served, having regard to the fact that the applicant's physical and mental health issues would make his time in custody more difficult. Ground of appeal 1. As I have indicated, the ground of appeal is that the sentence imposed on Mr D'Agostino is manifestly excessive. However, by an amended ground of appeal filed on 7 June 2023, the ground is now stated as "[e]vidence which is now available demonstrates that the applicant's health and conditions of custody are significantly worse than anticipated by the Judge at the time of sentence". 2. I take this to be a particularisation of the manifest excess ground, rather than a new ground of appeal. Indeed, the applicant generally relies on the written submissions filed in support of the original Notice of Appeal. 3. In support of his application, the applicant seeks to rely on fresh evidence, including: 1. an affidavit of the applicant dated 26 March 2023; 2. affidavits of his solicitor, Simon Long, dated 5 and 16 June 2023; 3. an affidavit of Antonio D'Agostino, the applicant's younger brother, dated 5 June 2023; and 4. an expert audiological report of Dr Ahmad Lotfy dated 16 June 2023. 1. In response, the Crown seeks to rely on further evidence being: 1. an expert neurological report of Dr Ron Granot dated 12 July 2023; and 2. a letter from Justice Health and Forensic Mental Health Network dated 23 July 2023. 1. As submitted by the applicant, the basis of this appeal is that, although the sentencing judge expressly referred to the likely diagnosis of the applicant having Meniere's disease and made a finding that this was making his time in custody physically harder, there was only a very modest amount of material placed before the sentencing judge in relation to this potential diagnosis and the applicant was only suffering from very mild symptoms of Meniere's disease at the time of the sentencing hearing. Further, it is said that the fresh evidence on which the applicant seeks to rely demonstrates: 1. that there has been a significant deterioration in the applicant's physical condition referable to the potential diagnosis of Meniere's disease; and 2. that there has been inadequate treatment of that condition in custody, despite the applicant's own attempts to obtain proper treatment. The applicant's submissions 1. The applicant submits that the evidence before the sentencing judge as to his medical condition was confined in both quantity and quality. 2. There was an affidavit from the applicant's daughter, Kaila D'Agostino, sworn 8 December 2020, in which Ms D'Agostino referred to the applicant developing a ringing in his ears and complaining that he had not been offered any help, treatment or testing for the ringing in his ears, despite seeing a doctor on 26 November 2020. She expressed concern that he was developing Meniere's disease, noting that the applicant's sister suffered from that illness. 3. The Crown placed before his Honour an internet search relating to Meniere's disease, as well as information from NSW Justice Health and Forensic Mental Health Network ("Justice Health") as to the treatment available to inmates through Justice Health. The applicant describes all of this evidence as merely demonstrating that he was suffering from ringing in his ears, that he had not yet been diagnosed or received any treatment and that there was a potential for him to be suffering from Meniere's disease. 4. The applicant then relies on the "fresh evidence" to demonstrate a significant deterioration in his physical and mental health and establish that he has received inadequate care in custody. 5. Specifically, the applicant points to a deterioration in his symptoms from a mere whistling sound in his ears to neurological difficulties, including a loss of balance, nausea, and difficulties with his memory, speech, writing and eyes. 6. He complains that when he first began to experience bouts of nausea, his attempts to see a doctor or psychologist went unanswered. He was taken to the hospital on 13 February 2022. He says that he was returned to custody without seeing a doctor because a doctor was not available. He was then taken to hospital on 16 February 2022 when he collapsed in the yard. He says that following these visits to the hospital, he made numerous requests to see doctors and nurses, as well as a psychologist. All of these attempts are said to have gone unanswered. He says that by November 2022, he was advised that doctors were unable to remove a potentially cancerous growth on his forehead because he could not give proper consent to medical treatment. 7. Then, in January 2023, he was moved to the Mary Wade Correctional Centre and he started receiving his medication regularly. He accepts that there was some improvement in his treatment at that time, but his symptoms continued deteriorating and these included unsteadiness on his feet, dizziness and problems with his memory, writing and speech. He says he was told there was nothing more that could be done to manage his symptoms. 8. The applicant was deemed unfit to participate in a work release program. The applicant submits that he now suffers from a range of symptoms, including severe nausea, which needs to be managed with medication. He says that he has significant unsteadiness on his feet, problems with memory and eyesight and he has concerns about other serious health conditions which have not been subject to a medical diagnosis or treatment. He complains that his rehabilitation and mental health have been impeded by his inability to participate in work release programs. 9. He says that the fresh evidence establishes the inability of Justice Health to manage his long-term chronic illness in custody. He specifically refers to undergoing an MRI, suggesting that the results of that MRI have never been provided to him. The suggestion that he is not able to properly consent to medical treatment is said to be indicative of the failure of Justice Health to provide appropriate long-term coordinated care to him. He says that his condition will not improve during his remaining time in custody. 10. He submits that he was sentenced on the basis that he would receive appropriate medical treatment in custody. He says that, in circumstances in which he has established a failure by Justice Health to adequately treat him and a significant deterioration in his condition, the Court would be satisfied that the basis on which he was sentenced was incorrect and a lesser sentence (and, in particular, a shorter non-parole period) is warranted. 11. He submits that an adjustment to his sentence should see him released on parole so that he can commence his integration into the community whilst receiving appropriate medical treatment. 12. In this regard, he relies on the audiological report of Dr Ahmad Lotfy. Dr Lotfy did not examine the applicant. Rather, the applicant was asked to answer a series of questions posed by his solicitors, which Dr Lotfy examined in turn. Dr Lotfy's report is thus general in nature. Specifically, Dr Lotfy said that he did not have sufficient information to determine whether the applicant has Meniere's disease. 13. He opined that whilst some tests to determine the nature of the applicant's illness could be undertaken in custody, such as a bedside evaluation, hearing tests and basic vestibular assessments, there is a chance that none of this could be performed in a custodial setting. He opined that, before treatment can be considered, a formal diagnosis must be reached and there may be a lengthy process, with multiple appointments required. 14. Dr Lotfy observed that treatment for Meniere's disease typically includes: 1. treatment for hearing loss through hearing aids, which can be provided in a custodial sentence with regular check-ups thereafter; 2. treatment for tinnitus, which is often incorporated in the hearing aid fitting but may require additional support through a psychologist; 3. treatment for vertigo symptoms, which are generally provided by a medical practitioner and involves medication; and 4. long-term vestibular rehabilitation through a specialist vestibular physiotherapist. 1. Dr Lotfy opined that, in most cases, Meniere's disease normally requires treatment which could reasonably be expected to be provided effectively, even in custodial settings. However, he observed that the disease is a progressive disorder that may result in hospitalisation and further medical treatment by an ear, nose and throat ("ENT") specialist may be required. Regular sessions with a psychologist may also be required. He says that if regular sessions with psychologists, GPs, physiotherapists and audiologists cannot be guaranteed, he would doubt that the treatment for the patient could be effective in a custodial setting. The Crown submissions 1. The Crown submits that in circumstances in which error is not suggested to have occurred in the original sentence, evidence of events occurring subsequent to a sentence will not be admitted: Iglesias v R [2006] NSWCCA 261 at [8]. Sentence appeals are to be determined on the material before the sentencing judge (see R v Munday [1981] 2 NSWLR 177 at 178 ("Munday")). 2. The Crown submits that the sentencing judge considered the applicant's subjective case and made a specific finding that the applicant's physical and mental health, including his potential Meniere's disease, was making his time in custody physically harder. The Crown submits that the sentencing judge plainly had regard to that fact in reducing the non-parole period which would otherwise be served. 3. Both parties agree that it was not necessary for the sentencing judge to quantify the extent to which these factors impacted upon the reduction in the non-parole period. The Crown disputes the applicant's proposition that an appeal may lie when, although symptoms of a particular condition may have been present, the significance was not appreciated at the time of sentencing. The Crown submits that the potential diagnosis of Meniere's disease was known to the sentencing judge and was given weight. 4. Further, there was material available to the sentencing judge which provided a description of Meniere's disease and the symptoms that persons suffering from the illness might develop. This must be taken to have been considered. The Crown submits that there is nothing in the material sought to be admitted by the applicant which supports the contention that the applicant has experienced symptoms of severity beyond those anticipated by the sentencing judge. 5. Further, the Crown relies on its own expert report from a neurologist, Dr Granot. Dr Granot suggested a number of possible diagnoses which might account for the applicant's symptoms, including hypertension, a stroke or tumour, Meniere's disease and vestibular migraine. Dr Granot referred to all of the tests which could be carried out in respect of each of those potential conditions. Specifically, he opined that Meniere's disease is guided by clinical diagnosis and can be confirmed by a vestibular function study, which is an hour-long outpatient test. Dr Granot opined that all of the testing could be carried out in a custodial setting as an outpatient in an appropriate hospital. 6. Dr Granot considered that most of the testing had already taken place whilst in custody. The only test not performed was a vestibular function study which could be performed whilst the applicant is an outpatient in a custodial setting. 7. The Crown disputes the applicant's contention that the applicant has not received the level of medical care and attention expected. It further submits that there is no evidence that releasing the applicant to early parole would facilitate the provision of any further medical care over and above that which he has already received or which is available to him in custody. Consideration 1. As there is no challenge to any finding made by the sentencing judge and no suggestion of error on the part of the sentencing judge, the circumstances in which an appeal such as this might succeed might be rare. 2. In Munday, Street CJ stated at 178: "It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court. It would seem to me, therefore, that, as the essential first step in the argument Mr Purnell foreshadows on the merits would involve this Court trespassing into the function of the executive Government, the case is not one in which there should be granted the very lengthy extension of time which is the prerequisite to the hearing of the challenge to the sentences." 1. Particularly for persons who may be serving long sentences, there is always a possibility of a deterioration in both physical and mental health whilst in custody, despite treatment within the Justice Health system. Merely establishing deterioration of a medical condition greater than anticipated by the sentencing judge would not ordinarily result in a successful appeal. Something more must be required. 2. It would be necessary that an applicant at least establish that the sentencing judge sentenced on the basis of a misapprehension of the facts. This might be established through a consideration of any fresh (rather than new) evidence on which the applicant relies and a consideration of the sentencing judgment. 3. In Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 at [66], Beech-Jones J (as his Honour then was) identified three situations in which the Court may be prepared to receive fresh evidence in the context of a deterioration in health as follows: "Firstly, where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ("Iglesias"); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ("Springer"). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer v R)." 1. In this matter, the applicant relies only on the second situation, submitting that the sentencing judge did not appreciate the significance of the symptoms from which he was suffering at the time of sentencing. 2. The applicant relies on the evidence to which I have referred as being "fresh evidence" which was accepted by the Court on a provisional basis. The evidence would also be relevant on re-sentencing. 3. In Hoang v R [2020] NSWCCA 324, the Court (per Payne JA, Beech-Jones and Fagan JJ) observed at [16] that such fresh evidence must be considered by the Court on a provisional basis in order to assess: "(1) whether it is truly 'fresh', that is, evidence that was undiscoverable at the date of the sentence proceedings and could not have been adduced at that time and that is capable of affecting the outcome; (2) if so, whether the Court should act upon the evidence by way of exception to the general principle that the Court's appellate function restricts it to a review of the sentencing decision on the basis of the facts as they existed when sentence was passed and (3) whether the evidence or any part of it is merely 'new evidence', that is, evidence that could with reasonable diligence have been adduced before the sentencing judge but was not so adduced." 1. In determining whether to admit such "fresh evidence", it is important to have regard to the fundamental principle that the Court of Criminal Appeal is a Court of error. Generally, its function is to assess whether an error was made by the sentencing court. 2. In Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 ("Khoury"), Simpson J (as her Honour then was) referred to Munday and observed at [109]-[110]: "It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both criteria. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: '6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.' A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177." 1. Having regard to these principles, the applicant faces a number of difficulties on this appeal. 2. Firstly, I doubt that some of the evidence sought to be relied upon by the applicant is fresh, as opposed to merely new, evidence. As identified in Khoury at [107]-[108], for evidence to be fresh, it must be evidence that was not available at the date of the sentence proceedings and could not have been adduced at the time, as well as being evidence that is capable of affecting the outcome. 3. I am not satisfied that the expert report of Dr Lotfy could be described as fresh evidence rather than new evidence. Despite the limited submissions on sentence about the significance of the potential for the applicant to have Meniere's disease, the sentencing judge plainly sentenced on the basis that he was likely to have Meniere's disease. If the applicant wished to adduce evidence from an expert as to the consequences of having Meniere's disease or the sort of treatment that he would need for Meniere's disease, he could have done so. 4. Of course, the lay evidence (being the applicant's own affidavit and the affidavit of his brother) would not have been available at the time, as that evidence purports to establish a deterioration in the applicant's symptoms. Again, I accept that there has been a deterioration but I do not accept that the sentencing judge sentenced on a completely different basis. He sentenced on the basis that the applicant had Meniere's disease. There is nothing in the judgment that would suggest that the sentencing judge only had regard to the fact that the applicant may have been suffering from some minor whistling sounds at the time, rather than on the basis that he was suffering from Meniere's disease. 5. Secondly, this is not a case in which the applicant complained of certain symptoms at the time, of which the sentencing judge did not take account and which subsequently developed into a recognised medical condition. To the contrary, although the applicant had not received a formal diagnosis at the time of sentence, the sentencing judge had before him: 1. complaints of some symptoms consistent with Meniere's disease; and 2. medical information as to the nature of Meniere's disease and the type of symptoms that a sufferer might experience. 1. The sentencing judge thus proceeded on the basis that the applicant was suffering from Meniere's disease and that his time in custody would be more onerous because of that. 2. Thirdly, the fact that the applicant's symptoms have regressed or developed may not be disputed but the applicant has not established that the sentencing judge was not aware of or failed to have regard to, that potential or likelihood. 3. That is because, on the evidence before the sentencing judge, the applicant was suffering from symptoms which might be consistent with having Meniere's disease and the sentencing judge was aware that the applicant's sister suffered from the disease. The sentencing judge was aware of the type of symptoms that a person suffering from that disease would exhibit through the provision of material by the Crown. 4. If this Court proceeded on the basis that the sentencing judge sentenced on the basis that the applicant was suffering merely from whistling sounds in his ears, it would have to assume that the sentencing judge failed to have regard to all of the material available on sentence. I would not adopt that approach. 5. Fourthly, in my view, the evidence and submissions include a degree of generalisation and overstatement about the applicant's lack of treatment in custody. 6. In his affidavit, the applicant refers to his pre-sentence condition, describing his symptoms as relatively minor and says that "on that basis His Honour was satisfied that I was receiving appropriate treatment in the custodial sentence". I am uncertain of the basis of this observation or conclusion as to what the sentencing judge may have been thinking. 7. The applicant then refers to a whistling that he could hear, which was not too noticeable. He seeks to create a different impression from what is apparent in the sentencing judgment. Again, the sentencing judge sentenced on the basis that the applicant was suffering from Meniere's disease, not a minor and nearly unnoticeable whistling sound. 8. The applicant recalls that he started to feel nauseous around Christmas 2020 and asked to see a psychologist. He says that he had chest pains one day after his sentencing hearing. He refers to a Corrective Services Officer coming into his cell but not believing that he was sick. He says he fell off his bed, was spinning, felt dizzy and his chest pains became worse. He refers to being conveyed by ambulance to Blacktown Hospital and having a number of tests, before returning to custody. Thereafter, his symptoms continued to worsen. He says he started to lose balance, often tripping over or misjudging distance. He says he made a number of requests to see a doctor which were ignored. 9. He was then moved to Glen Innes Correctional Centre. At that time, he noticed issues with his short-term memory. He was feeling physically ill at night. He says that on 11 February 2022, he saw a doctor at Glen Innes and told her about his symptoms, including his anxiety. Two days later, he was taken by ambulance to Glen Innes Hospital. He says that there was no doctor on duty and the nurses could not do much for him. 10. After returning to custody, he says he could not stand up at the morning muster and collapsed. After being taken to Glen Innes Hospital for a second time, he was sent to Armidale Hospital. He says that he can specifically remember the doctor saying he should have an MRI but the MRI machine at Armidale was not working. 11. Thereafter, he was moved to Clarence Correctional Centre, which had its own hospital. He says that on 25 February 2022, he underwent a number of scans and an MRI. He says he continued to ask what the results of the scans were but he kept getting told that they had not received them. 12. By March 2022, he was asking to see a psychologist. He says he received no response to his request to see a psychologist. He then details a period of difficulties in obtaining his medication. By July 2022, he had received his C3 classification, which is a lower security classification. However, he refers to ongoing difficulties with his medication and being locked in his cell. He was then told that he could not go on work release because of his medical situation. 13. On 8 January 2023, he was moved to Mary Wade Correctional Centre in Sydney. He says that since that time, he has only seen a doctor once. He has a growth on his forehead. He says that every time he raises it, the doctor or nurses say they cannot do anything for it because he cannot give proper consent. He refers to ongoing neurological difficulties. 14. On 12 April 2023, he had a telehealth consultation with a mental health nurse at Mary Wade Correctional Centre. He referred to being anxious and uncertain about the future and disappointed about the entire situation. The mental health nurse doubled the antidepressants prescribed for him. 15. The applicant says that his experience in custody has not been good. He feels that he has been treated as an inconvenience and that he is moved onto another facility as soon as his health issues become too hard to deal with. He is surrounded by other C3 inmates who get to work at various locations and earn money. His inability to do so has caused him anxiety and depression. 16. The Crown submits that the Justice Health records and notes do not support everything the applicant says, particularly about the suggested lack of treatment. 17. For example, the applicant submits that despite being in custody for an extensive period, he has never been actually diagnosed with Meniere's disease or received any proper treatment for it. That may be correct insofar as there is no report from a doctor which records the diagnosis but, in February 2022, the applicant himself reported that he was suffering from Meniere's disease during that period and he was admitted to hospital on two occasions. 18. In a referral to a neurologist dated 12 January 2023, the referring doctor states "Thank you for seeing 61 year old man with ?? Meniere's disease…". 19. Further, after being taken to hospital on 11 February 2022, the applicant was discharged and taken by ambulance back to the Clarence Correctional Centre. According to the ambulance report, the applicant stated that he felt 100% and had no concerns or vertigo symptoms. He was not dizzy, did not have nausea and was not vomiting. His condition was stable. 20. In addition, although the plaintiff says that he has never received the results of his MRI, there is no record of him being subject to an MRI. 21. The Justice Health records suggest semi-regular visits and examinations by medical officers during the applicant's time in custody. The notes of the Armidale Hospital dated 17 February 2022 do not refer to the applicant having an MRI scan. Perhaps he was referring to the CT scan. 22. All of this suggests that the applicant has presented with a range of variable symptoms from time to time. I accept that there is no differential diagnosis that he suffers from Meniere's disease. However, he self-reported that he suffers from Meniere's disease and the general practitioner who reviewed him raised this as a potential diagnosis. The sentencing judge accepted that as the likely diagnosis. 23. The applicant says that despite being referred to a neurologist in May 2023, he will not be seeing the neurologist until September 2023. I accept that is a significant delay. I also accept that there have been some delays in the treatment of the applicant, but I do not accept that the applicant's general treatment in custody has been inadequate throughout his period in custody. He has been referred to hospital on multiple occasions. On those occasions, he has been assessed and discharged for further review in custody. He has been further reviewed. The Justice Health notes record semi-regular examinations and prescription of medication. There have been changes in the applicant's medication based on his presentation with differing symptoms. 24. Finally, only Dr Lotfy refers to any treatment which could not be provided in custody and that appears to be the last of the treatment options which would depend on the severity of the applicant's symptoms. Dr Lotfy suggests that the process of vestibular rehabilitation may require extensive and coordinated treatment involving a vestibular physiotherapist. 25. Dr Lotfy's report is not based on any consultation with the applicant. It sets out the nature of the illness and the treatment which would be required in a general way, without reference to the plaintiff's actual symptoms. Dr Granot considers that any necessary treatment could be provided in the custodial setting. 26. As I have already indicated, I do not consider the report of Dr Lotfy to be fresh evidence. I would not admit the evidence of Dr Lotfy because it is evidence which could have been obtained at the time of the original sentence. It follows that the responsive report of Dr Granot should not be admitted. 27. That leaves the fresh evidence on appeal as being the custodial records and the lay evidence which demonstrates a deterioration in the plaintiff's condition. Whilst there has been a delay in obtaining a specialist examination, the applicant is due to see a specialist in September. 28. The question then remains whether the circumstances of this matter are such that would warrant intervention by this Court at this time. 29. In my view, they are not. The sentencing judge accepted that the applicant was suffering from Meniere's disease and accounted for that on sentence. The applicant's symptoms are now worse than at the time of sentence but that, of itself, is insufficient to warrant intervention by this Court. 30. The applicant has not established that treatment for Meniere's disease cannot be provided in custody. There has been some delay in treatment and a deterioration in his condition, but these matters do not lead to the conclusion that this Court should depart from the general rule that the Court acts on the facts presented at the time of sentence. Further, in my view, there is some generalisation or overstatement regarding the extent of the suggested inadequacies in the treatment provide to the applicant by Justice Health. 31. In the circumstances, although I would allow an extension of time to seek leave to appeal, I would not grant leave to appeal. Leave to appeal is discretionary and the circumstances of this appeal are not such that leave should be granted. 32. The orders I propose are thus: 1. grant the applicant an extension of time to apply for leave to appeal against his sentence; and 2. leave to appeal is refused. 1. WEINSTEIN J: I agree with Cavanagh J. ********** Amendments 04 September 2023 - Appearance details updated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2023