Brink v R [2010] NSWCCA 217

Brink v R [2010] NSWCCA 217

Leave to appeal was refused because the sentencing judge was aware of the applicant's artificial leg, the increased hardship it caused in custody, and the possibility that it might need replacement, and took those matters into account. The later material showed hardship and delay in obtaining socks and a new prosthesis, but did not disclose exceptional circumstances warranting admission as fresh evidence or interference with a sentence imposed without error.

Jurisdiction
Australia
Judgment Date
22 September 2010
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Determined on the Papers
Outcome
Leave to appeal refused.
Legal Topics
['importing a Marketable Quantity of a Border Controlled Drug' 'fresh Evidence on Sentence Appeal' 'disability and Hardship in Custody' 'exceptional Circumstances' 'leave to Appeal Against Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['importing a Marketable Quantity of a Border Controlled Drug' 'fresh Evidence on Sentence Appeal' 'disability and Hardship in Custody' 'exceptional Circumstances' 'leave to Appeal Against Sentence']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Determined on the Papers

Legal Issues

  1. 1 ["Whether the sentencing proceedings miscarried because evidence of the applicant's disability and its significance was not fully understood until after sentence had been imposed." "Whether fresh evidence concerning post-sentence difficulties with the applicant's prosthetic leg should be admitted on the appeal." 'Whether the hardship and delay encountered in obtaining a new prosthesis justified interference with a sentence imposed without demonstrated error.']

Ratio Decidendi

Leave to appeal was refused because the sentencing judge was aware of the applicant's artificial leg, the increased hardship it caused in custody, and the possibility that it might need replacement, and took those matters into account. The later material showed hardship and delay in obtaining socks and a new prosthesis, but did not disclose exceptional circumstances warranting admission as fresh evidence or interference with a sentence imposed without error.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.']