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Ensor v The King (Cth) [2022] NSWCCA 278

The offender was sentenced following pleas of guilty to 8 counts of obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Commonwealth Criminal Code. Original sentence imposed 6 years imprisonment with a non-parole period of 4 years. The offender appealed on the grounds that the original sentence was manifestly excessive, new evidence is available concerning the effects of COVID-19 on prisoner welfare, the sentencing judge failed to give sufficient weight to the offender’s antecedents and physical condition, and that new evidence of offender’s physical condition had arisen.

Hardship: Offender asserts both that conditions of custody have worsened generally due to the impact of the COVID-19 pandemic and that their own health has declined markedly such that they experience the custodial environment as harsher than they formerly did. The adverse conditions of custody to mitigate the spread of COVID-19 are changes that have affected all prisoners; they are not unique to offender and cannot be relied upon to reduce their sentence. Offender’s heart condition was known to the sentencing court and taken into consideration. There was no suggestion of offender suffering from lung cancer when the sentence was imposed and the evidence does not support a conclusion that offender has such a condition currently. There is also nothing to support the claim that there is a tumour in offender’s heart.

Antecedents: Matters connected with the weight a sentencing judge determined to afford individual features are not amenable to challenge on appeal. The sentencing judge did not fail to consider offender’s former good character or the medical evidence placed before the court. Similarly, the plea of guilty was properly taken into account.

Leave to appeal out of time 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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