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D’Agostino v R [2023] NSWCCA 212

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of conspiring to import a commercial quantity of border controlled drugs contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months. The offender appealed on the ground that the sentence was manifestly excessive.

Manifest Excess: Offender submits that the evidence before the sentencing judge as to their medical condition was confined in both quantity and quality. Offender then relies on fresh evidence to demonstrate a significant deterioration in his physical and mental health and establish that they have received inadequate care in custody. Particularly for persons who may be serving long sentences, there is always a possibility of a deterioration in both physical and mental health whilst in custody, despite treatment within the Justice Health system. Merely establishing deterioration of a medical condition greater than anticipated by the sentencing judge would not ordinarily result in a successful appeal. Something more must be required. It would be necessary that an offender at least establish that the sentencing judge sentenced on the basis of a misapprehension of the facts. The sentencing judge accepted that offender was suffering from Meniere’s disease and accounted for that on sentence. Offender’s symptoms are now worse than at the time of sentence but that, of itself, is insufficient to warrant intervention.

Application to appeal out of time allowed. Leave to appeal refused.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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