Patrick Springer v Regina [2007] NSWCCA 289

Reported Decision: 177 A Crim R 13

New South Wales Court of Criminal Appeal

CITATION: Patrick Springer v Regina [2007] NSWCCA 289

HEARING DATE(S): 18 September 2007

JUDGMENT DATE: 16 October 2007

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 14; Bergin J at 37

DECISION: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence appealed from and sentence the appellant to a non-parole period of two years and nine months, commencing on 16 December 2005 and expiring on 15 September 2008 and a period during which he shall be eligible to be released on parole, commencing on 16 September 2008 and expiring on 15 June 2010.

PARTIES: Patrick Springer, Regina

FILE NUMBER(S): CCA 2006/4996

COUNSEL: M Thangaraj C O'Donnell

SOLICITORS: Watsons Solicitors & Barristers Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0186

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/4996

McCLELLAN CJ at CL BARR J BERGIN J

16 OCTOBER 2007

PATRICK SPRINGER v REGINA JUDGMENT 1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Barr J. I agree with the orders which his Honour proposes and his reasons. I wish only to add the following additional remarks.

Evidence on the appeal 2 This Court has an established practice by which it receives evidence of post sentence conduct which will be taken into account if patent or manifest error is demonstrated when determining whether a different sentence should be imposed. Douar v The Queen [2005] NSWCCA 455 at [121]; Baxter v Regina [2007] NSWCCA 237. 3 However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v R [2006] NSWCCA 261 at [8]-[12] (see also Perkins v R [2007] NSWCCA 80, (2007) 169 A Crim R 516 at [25]-[27]). Examples include: · Evidence which shows that the applicant's treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted. · Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233). · Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Bailey (1988) 35 A Crim R 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing (Iglesias). · Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]). · Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. (R v Swindale, Court of Criminal Appeal, 22 June 1998, unreported; R v Goodwin (1990) 51 A Crim R 328). · Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them (R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46]).