R v Ashton [2002] NSWCCA 498

R v Ashton [2002] NSWCCA 498

Although the original sentence of two years imprisonment by way of periodic detention was not excessive or erroneous on the material before the District Court, the fresh evidence and the material before the sentencing judge showed that the applicant probably had a psychological or psychiatric condition at the time of sentence which was not fully appreciated and which made any custodial sentence likely to have an exceptional and serious impact on his mental health. That condition, together with the extraordinary delay for which the applicant could not fairly be held responsible, justified admitting the fresh evidence, granting leave, allowing the appeal, quashing the sentence and imposing...

Jurisdiction
Australia
Judgment Date
13 December 2002
Procedural Posture
Criminal Sentence Appeal/application for Leave to Appeal / New South Wales Court of Criminal Appeal; Fresh Evidence Received; Application Granted and Appeal Allowed
Outcome
Application for leave granted; appeal allowed; sentence quashed; applicant resentenced to 18 months imprisonment suspended on conditions.
Legal Topics
['drug Supply' 'periodic Detention' 'fresh Evidence on Appeal' 'mental Illness and Sentencing' 'suspended Sentence' 'delay in Appeal']
['criminal Law' 'criminal Procedure' 'sentencing'] ['drug Supply' 'periodic Detention' 'fresh Evidence on Appeal' 'mental Illness and Sentencing' 'suspended Sentence' 'delay in Appeal']

Case Brief

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Procedural Posture

Criminal Sentence Appeal/application for Leave to Appeal / New South Wales Court of Criminal Appeal; Fresh Evidence Received; Application Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether fresh evidence about the applicant's psychiatric or psychological condition should be received on a sentence appeal where the sentence was not otherwise shown to be erroneous on the material before the sentencing judge." 'Whether the applicant probably had a psychiatric or psychological condition at the time of sentence that was unknown or not fully appreciated and that made a custodial sentence, including periodic detention, exceptionally harsh.' 'Whether the Court should intervene under the Criminal Appeal Act 1912 rather than leave the matter to executive or administrative powers concerning periodic detention.' "What sentence should be imposed in light of the fresh evidence, the applicant's mental condition, and the extensive delay in hearing the appeal."]

Ratio Decidendi

Although the original sentence of two years imprisonment by way of periodic detention was not excessive or erroneous on the material before the District Court, the fresh evidence and the material before the sentencing judge showed that the applicant probably had a psychological or psychiatric condition at the time of sentence which was not fully appreciated and which made any custodial sentence likely to have an exceptional and serious impact on his mental health. That condition, together with the extraordinary delay for which the applicant could not fairly be held responsible, justified admitting the fresh evidence, granting leave, allowing the appeal, quashing the sentence and imposing...

Court Disposition

Application for leave granted; appeal allowed; sentence quashed; applicant resentenced to 18 months imprisonment suspended on conditions.

Orders

  • ['The application is granted.' 'The appeal is allowed.' 'The sentence imposed by Judge Nield is quashed.' 'In lieu, the applicant is sentenced to imprisonment for 18 months from 11 December 2002 and expiring on 10 June 2004, that sentence to be suspended on the applicant entering into a bond for 18 months.' 'The...