D’Agostino v R [2023] NSWCCA 212

D’Agostino v R [2023] NSWCCA 212

Although the applicant showed some deterioration in his condition and some delay in treatment, the sentencing judge had proceeded on the basis that the applicant was likely suffering from Meniere's disease and had already allowed for the resulting increased custodial burden. The applicant did not establish that the sentencing judge failed to appreciate the condition's significance, sentenced on a misapprehension of fact, or that necessary treatment could not be provided in custody. The expert audiological report was not fresh evidence because it could have been obtained at the original sentence. Leave to appeal was therefore refused, although an extension of time was granted.

Jurisdiction
Australia
Judgment Date
30 August 2023
Procedural Posture
Application for Extension of Time to Apply for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Leave Application From District Court of NSW Sentence Imposed on 29 January 2021
Outcome
Extension of time granted; leave to appeal refused.
Legal Topics
['manifest Excess' 'extension of Time' 'fresh Evidence' 'medical Condition in Custody' 'conspiracy to Import Commercial Quantity of Border Controlled Drugs']
['criminal Law' 'criminal Appeals' 'sentencing'] ['manifest Excess' 'extension of Time' 'fresh Evidence' 'medical Condition in Custody' 'conspiracy to Import Commercial Quantity of Border Controlled Drugs']

Case Brief

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Procedural Posture

Application for Extension of Time to Apply for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Leave Application From District Court of NSW Sentence Imposed on 29 January 2021

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to apply for leave to appeal against sentence.' "Whether the sentence was manifestly excessive because evidence now available showed the applicant's health and conditions of custody were significantly worse than anticipated by the sentencing judge." "Whether evidence concerning deterioration of the applicant's possible Meniere's disease and treatment in custody was fresh evidence capable of justifying appellate intervention." "Whether the sentencing judge failed to appreciate the significance of the applicant's medical condition or sentenced on a misapprehension of fact."]

Ratio Decidendi

Although the applicant showed some deterioration in his condition and some delay in treatment, the sentencing judge had proceeded on the basis that the applicant was likely suffering from Meniere's disease and had already allowed for the resulting increased custodial burden. The applicant did not establish that the sentencing judge failed to appreciate the condition's significance, sentenced on a misapprehension of fact, or that necessary treatment could not be provided in custody. The expert audiological report was not fresh evidence because it could have been obtained at the original sentence. Leave to appeal was therefore refused, although an extension of time was granted.

Court Disposition

Extension of time granted; leave to appeal refused.

Orders

  • ['The applicant is granted an extension of time to apply for leave to appeal against his sentence.' 'Leave to appeal is refused.']