Ensor v R (Cth) [2022] NSWCCA 278

Ensor v R (Cth) [2022] NSWCCA 278

Leave to file out of time was refused because the proposed appeal lacked merit and the applicant gave no compelling explanation for a delay of well over three years. The asserted post-sentence COVID-19 conditions affected prisoners generally and did not provide a basis to reduce the sentence; the applicant's heart condition was known and taken into account at sentencing, and the evidence did not establish lung cancer or other exceptional medical circumstances. The sentencing judge did not err in the treatment of subjective matters or agreed facts, the aggregate sentence structure was conventional for federal offending, and the sentence was not manifestly excessive for sustained, planned...

Jurisdiction
Australia
Judgment Date
17 October 2022
Procedural Posture
Criminal Application for Leave to File Out of Time an Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to File Out of Time Refused and Reasons Reserved
Outcome
Leave refused.
Legal Topics
['obtaining a Financial Advantage From the Commonwealth by Deception' 'gst Fraud' 'application for Leave to Appeal Out of Time' 'manifest Excess' 'fresh or New Evidence After Sentence' 'prison Conditions During COVID 19' 'health Conditions in Custody']
['criminal Law' 'sentencing' 'criminal Appeals'] ['obtaining a Financial Advantage From the Commonwealth by Deception' 'gst Fraud' 'application for Leave to Appeal Out of Time' 'manifest Excess' 'fresh or New Evidence After Sentence' 'prison Conditions During COVID 19' 'health Conditions in Custody']

Case Brief

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Procedural Posture

Criminal Application for Leave to File Out of Time an Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to File Out of Time Refused and Reasons Reserved

Legal Issues

  1. 1 ['Whether leave should be granted to file out of time an application for leave to appeal from the sentence imposed on 25 January 2019.' "Whether post-sentence evidence concerning COVID-19 prison conditions and the applicant's health justified appellate intervention." "Whether the sentencing judge erred in the weight given to the applicant's prior good character, medical evidence, guilty plea, delay and other factual matters." 'Whether the aggregate sentence of 6 years imprisonment with a non-parole period of 4 years was manifestly excessive.']

Ratio Decidendi

Leave to file out of time was refused because the proposed appeal lacked merit and the applicant gave no compelling explanation for a delay of well over three years. The asserted post-sentence COVID-19 conditions affected prisoners generally and did not provide a basis to reduce the sentence; the applicant's heart condition was known and taken into account at sentencing, and the evidence did not establish lung cancer or other exceptional medical circumstances. The sentencing judge did not err in the treatment of subjective matters or agreed facts, the aggregate sentence structure was conventional for federal offending, and the sentence was not manifestly excessive for sustained, planned...

Court Disposition

Leave refused.

Orders

  • ['Refuse leave to the applicant to file out of time an application for leave to appeal from the sentence imposed on 25 January 2019.' 'Reasons reserved.']