Cornwell v Regina [2015] NSWCCA 269

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cornwell v Regina [2015] NSWCCA 269 Hearing dates: 14 September 2015 Date of orders: 14 September 2015 Decision date: 14 October 2015 Before: Basten JA at [1] Hall J at [9] Wilson J at [70] Decision: (1) Extend time within which the applicant may seek leave to appeal against the sentence imposed on him in the District Court;

(2) Admit the evidence not before the sentencing judge as to the applicant's current medical condition;

(3) Grant leave to appeal;

(4) Set aside the sentence imposed on the applicant in the District Court;

(5) Sentence the applicant to an aggregate sentence of four years and six months imprisonment, with a non-parole period of two years and six months to date from 24 October 2013. The non-parole period will therefore expire on 23 April 2016. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – applicant suffered undiagnosed medical condition (Huntington's Disease) at time of sentence – applicant sought leave to adduce medical evidence as to diagnosis and symptoms on appeal – applicant argued that he should be re-sentenced in light of fresh evidence – evidence as to medical condition suffered at time of sentencing and which would make time in custody more burdensome is an exception to the general rule that fresh evidence should not be admitted after sentence – relevant to take into account the reason for evidence not being adduced previously – here psychological explanation justified decision not to adduce the evidence at the time of sentencing – fresh medical evidence admitted – applicant re-sentenced Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912 Cases Cited: Dudgeon v R [2014] NSWCCA 301 Fordham v R (1997) 98 A Crim R 359 Khoury v R (2011) 209 A Crim R 509 R v Smith (1987) 44 SASR 587 Turkmani v R [2014] NSWCCA 186 Category: Principal judgment Parties: Jason Robert Ross Cornwell (Applicant) Regina (Respondent) Representation: Counsel: H White (Applicant) E Balodis (Respondent)