Brink v R [2010] NSWCCA 217

New South Wales Court of Criminal Appeal

CITATION: Brink v R [2010] NSWCCA 217

HEARING DATE(S): 4 August 2010

JUDGMENT DATE: 22 September 2010

JUDGMENT OF: Macfarlan JA at 1; Hulme J at 2; McCallum J at 6

DECISION: Leave to appeal refused.

CATCHWORDS: CRIME – sentencing – whether sentencing proceedings miscarried because evidence as to applicant's disability not fully understood until after sentence imposed – whether fresh evidence should be admitted in the appeal

LEGISLATION CITED: Criminal Code 1995 (Cth) Criminal Appeal Act 1912

CATEGORY: Principal judgment

Einfeld v R [2010 NSWCCA 87] CASES CITED : Iglesias v R [2006] NSWCCA 261 Springer v The Queen (2007) 177 A Crim R 13

PARTIES: Anthony Brian Brink Regina

FILE NUMBER(S): CCA 2008/12570

COUNSEL: In person (Applicant) W. Roser SC (Respondent Crown)

SOLICITORS: Commonwealth Director of Public Proseuctions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/12570

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 5 February 2009

- 8 - IN THE COURT OF CRIMINAL APPEAL 2008/12570003

MACFARLAN JA RS HULME J McCALLUM J

22 September 2010 Anthony Brian Brink v R Judgment 1 MACFARLAN JA: I agree with McCallum J. 2 RS HULME J: I agree with the order proposed by McCallum J. However I do so for reasons that differ from those that appeal to her Honour. 3 The material before the court made it clear that Freeman DCJ who sentenced the Applicant was aware of the Applicant's artificial leg and the difficulties necessarily occasioned thereby, including an inability to run from any other prisoner disposed to cause trouble and the Applicant having to shower while balanced on one leg. Referred to in a forensic psychologist's report, there was also before his Honour an account of concern on the part of the Applicant of not being able to replace his prosthetic limb should the need arise while he was in custody. 4 However, his Honour would have had no reason to believe that the replacement of the prosthesis would take as long to effect as the reasons of McCallum J reveal nor that replacement of items as simple as socks necessary to insulate the Applicant's stump from the prosthesis would take the Corrective Services Department as long as 12 months with the Applicant being forced to suffer. 5 These problems have now been sorted out and I do not regard them having lasted so long as to justify interference with the sentence imposed by Freeman DCJ. In these circumstances it is unnecessary to decide whether evidence of the problems the Applicant has experienced with his prosthesis since sentencing should be received – see the cases referred to in Einfeld v R [2010 NSWCCA 87] at [43] et seq. 6 McCALLUM J: Anthony Brink pleaded guilty in the District Court to a charge of importing a marketable quantity of a border controlled drug (cocaine and heroin) contrary to section 307.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment. On 5 February 2009, Mr Brink was sentenced to imprisonment for eight and a half years with a non-parole period of five years. The sentence commenced from 31 May 2008, the date on which Mr Brink was arrested. Accordingly, he is eligible for release to parole from 30 May 2013. 7 On 7 March 2010, Mr Brink gave notice of an application for leave to appeal against the sentence. An appeal to this Court against sentence lies only with the leave of the Court: section 5(1)(c) of the Criminal Appeal Act 1912. 8 The sole ground of appeal relied upon by Mr Brink is: The sentencing proceedings miscarried because evidence of the applicant's disability and its significance was not fully understood until after sentence had been imposed. 9 The disability referred to in the ground of appeal is the fact that one of Mr Brink's legs was amputated above the knee when he was aged 19. He now has a prosthetic leg. 10 Mr Brink does not have legal representation and requested to be excused from appearing at the hearing of the appeal due to the discomfort of travelling the long distance from the prison in which he is serving his sentence. Accordingly, the appeal was determined on the papers.