- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Sutton  QCA 318
CA No 229 of 2018
SC No 965 of 2018
SC No 1205 of 2018
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 30 August 2018 (Atkinson J)
16 November 2018
9 November 2018
Fraser and Philippides JJA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to concurrent sentences of two years imprisonment for possession of the dangerous drug cocaine in excess of 2 grams, 18 months imprisonment for possession of the dangerous drug cocaine, six months imprisonment for possession of the dangerous drug trenbolone, with parole eligibility after serving eight months imprisonment – where the sentencing judge held that the applicant’s possession of cocaine was for his personal use and not for the business of holding cocaine to sell it – where the applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive in all the circumstances
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – CUSTODIAL ORDERS – MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC – GENERALLY – where the sentencing judge was referred to a clinical psychologist’s report that indicated the applicant met the criteria for a diagnosis of stimulant use disorder, cocaine, severe in early remission; major depressive disorder, severe recurrent episode; and social anxiety disorder – where the clinical psychologist’s report referred to the applicant’s suicidal ideation and suicide attempts following arrest – where the report indicated that if the applicant were to receive a custodial sentence it is highly likely that the stress associated with imprisonment would have a negative impact on his mental well-being – where the sentencing judge stated that the usual discount would be made for the applicant’s plea but there was no basis for a further reduction – where the applicant sought leave to appeal against the sentence on the basis that the sentencing judge erred in failing to adequately take into account the applicant’s mental health issues – where the applicant sought leave to adduce a psychological report that has been commissioned for the purpose of examining the effects of the applicant’s incarceration on his mental health – whether in all the circumstances the sentencing discretion should be re-exercised
R v Clark  QCA 318, applied
R v Hicks & Taylor  QCA 207, cited
R v Maniadis  1 Qd R 593;  QCA 242, considered
R v Tsiaras  1 VR 398;  VicRp 26, applied
R v Ungvari  QCA 134, cited
R v Yarwood (2011) 220 A Crim R 497;  QCA 367, applied
A J Edwards for the applicant
C Cook for the respondent
KLM Solicitors Pty Ltd for the applicant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Philippides JA and the orders proposed by her Honour.
PHILIPPIDES JA: On 30 August 2018, the applicant was convicted on his pleas of guilty to possession of the dangerous drug cocaine on 2 December 2017 (count 1), possession on 3 December 2017 of the dangerous drug cocaine in a quantity in excess of 2 grams (count 2), of the dangerous drug trenbolone (count 3) and two summary charges: one of possessing a thing used in connection with the commission of a crime, defined in Pt 2 of the Drugs Misuse Act 1986 (Qld); and the other being unlawful possession of restricted drugs.
The applicant seeks leave to appeal against the sentence imposed by the sentencing judge and to adduce further evidence.
The sentence proceeded on an agreed schedule of facts. The circumstances of the offending are as follows. The applicant was pulled over in his car on the evening on 2 December 2017 by police patrolling the Fortitude Valley area. Police conducted a search of the applicant and the car. The applicant admitted to being in possession of cocaine. He had three bags of cocaine in his pocket. Each bag weighed about 1 gram. The consistent purity in each of the bags was 34.6 per cent. In total, the quantity of substance was 3.061 grams containing 1.057 grams of pure cocaine (count 1). The applicant was also found with one Viagra tablet which was the subject of one of the summary offences.
Early on the following morning, 3 December 2017, at about 4.17 am, the police executed a search warrant at the applicant’s unit in Bulimba. In a kitchen cupboard, they found a clipseal bag containing 24.107 grams of a white compressed substance, containing 8.148 grams of pure cocaine. The purity was 33.8 per cent (count 2). Police also located, in a green BMW sedan, which the applicant admitted was his, two vials containing 19.385 grams of a substance confirmed on analysis to be trenbolone, an anabolic steroid (count 3). Police also found a bag containing 808.1 grams of creatine, which can be used as a cutting agent (and a supplement used in the body building industry), and a set of digital scales were found. That was the subject of the summary offences.
The applicant was 34 years of age at the time of the offending and 35 at sentence.
Before the sentencing judge, it was alleged by the prosecution that the cocaine was possessed for both commercial and personal purposes. In that regard, reliance was placed on the very large quantity of cocaine found on the applicant’s person and in his unit, together with the presence of a large amount of cutting agent and a set of digital scales. Her Honour was satisfied on the balance of probabilities that there was a mixed reason for possession of the cocaine, finding that the cocaine was for the applicant’s own use but that there was also a commercial element because by selling it, the applicant “would be able to raise more money to purchase more cocaine to support what was clearly a very serious cocaine habit”. Her Honour found that the applicant was not in the business of holding the cocaine in order to sell it. Rather, the applicant was a heavy user and his possession of the drug was both to use and to sell it so that he could purchase more.
Her Honour referred to the applicant’s relatively minor criminal history. One entry was old and irrelevant, the other concerned a conviction in March 2015 for possession of the drug prasterone, an illegal supplement. No conviction was recorded in relation to that offending.
Her Honour set out the relevant history of the applicant’s family situation and schooling as recorded in the tendered clinical psychologist’s report of Dr Oertel. The applicant completed year 12 at high school, excelled in sport and was elected school captain. Thereafter, he commenced a TAFE course in personal training, which he did not complete. Instead, he completed a four year apprenticeship in carpentry and worked in his uncle’s business. He then obtained employment in a steel factory for a short period before taking on a supervisory role in an insurance company for two and half years. After which, he opened a business with his former wife, which ran into financial difficulties and was closed because of debts the applicant had incurred. The applicant sold his home to pay off the debts and secured employment as a youth worker. He ceased that employment after six months because, as the sentencing judge put it, “it triggered [the applicant’s] own personal issues”. The applicant then became a partner in a mechanical business and worked there for eight months, leaving because he was not being paid superannuation. He lost between $10,000 and $15,000 which had been invested in the business. More recently, the applicant had been engaged in casual work at his younger brother’s screen printing business.
Her Honour noted that the applicant had acquired a gambling problem as well as a problem with cocaine use.
Her Honour took into account a number of positive references, including a very positive one from his former wife. Her Honour noted that at the time of sentence, the applicant’s two small sons were with his former wife, but that he had taken responsibility and a caring attitude to the two small boys, which her Honour remarked was “very much in [his] favour”.
Referring to the report of Dr Oertel, which her Honour stated she found of assistance, her Honour noted that the applicant met the criteria for a diagnosis of stimulant use disorder, cocaine, severe in early remission; major depressive disorder, severe recurrent episode; and social anxiety disorder. The psychologist made three main treatment recommendations including that the applicant participate in treatment focussing on relapse prevention; psychological treatment focussing on developing coping strategies; and psychological treatment addressing childhood experiences.
In sentencing the applicant, her Honour remarked:
“… unfortunately it appears you have not accessed any of that treatment. There is no evidence before me that you have managed to overcome your cocaine use and addiction. I am not going to hold that against you, but on the other hand, you do not get the advantage that you would have got had you shown that you had completely rehabilitated yourself from drug use because it is obviously a huge risk for future criminal offending if you have not completely rehabilitated yourself from that drug use.”
The balance of her Honour’s sentencing remarks as to the reasons for sentence were brief and as follows:
“This is a timely plea of guilty and I take that into account in the sentence to be imposed upon you. The possession of that amount of cocaine is very serious. Albeit it was predominantly for personal use, it is nevertheless a very serious offence, and the Court is obliged to impose a sentence which deters you and others from engaging in that kind of criminal behaviour.
In all of the circumstances, the appropriate sentence to be imposed on count 2 is, in my view, two years’ imprisonment; on count 1, a concurrent period of 18 months’ imprisonment; and on count 3, a concurrent period of six months’ imprisonment. I will sign the serious drug offence certificate. I record convictions on each count on the indictment. So far as the summary charges are concerned, I record convictions and impose no further punishment.
In all of the circumstances, you are entitled to the usual discount which is given for a plea of guilty, as has happened in this case, but I see no reason to further reduce it. So your parole release date will be after you have served eight months’ imprisonment, and that is on 29 April 2019.”
The application for leave to appeal against sentence and to adduce evidence
The applicant seeks leave to appeal against his sentence on the basis that it was manifestly excessive and upon a further basis, in respect of which leave was granted that the sentencing judge erred in failing to take into account or failing to sufficiently take into account the applicant’s mental health issues.
The applicant also sought leave to read and file an affidavit exhibiting a further psychological report in support of the additional ground. The application to adduce further evidence concerns an updated psychological report of Ms Krishnan dated 25 October 2018. The report was commissioned after sentence for the purpose of examining the effects of the applicant’s incarceration on his mental health.
It was submitted that, given the applicant’s limited criminal history, cooperation with police and early plea of guilty as well as findings of predominant personal use, although with a commercial element, that absent his mental health issues, the sentence imposed would have been either manifestly excessive or at least at the high end of the range. It was submitted that the applicant’s mental health issues rendered the sentence beyond the sound exercise of the sentencing discretion. The applicant thus submitted that, although the sentencing judge adverted to the contents of the psychological report, the sentence imposed did not reflect the applicant’s mental health issues outlined in the report by a reduction of the time to be served below the common sentencing practice of one third usually referable to a plea of guilty.
It was also contended on behalf of the applicant that, while her Honour recognised that the psychologist’s report supported a diagnosis of stimulant use disorder, major depressive disorder and social anxiety disorder, her Honour made no reference to the relevance of those findings, or the relevant attendant sentencing principles, in the sentence imposed. While the applicant’s counsel did not identify the relevant authorities outlining those principles, he did submit that the psychologist’s opinion was relevant to the sentencing of the applicant. He also, in his submissions, made specific reference to instructions (which were not contested), consistent with the psychological report, of the applicant’s recent suicide attempts.
It was thus submitted that there was specific error in the exercise of the sentencing discretion by failing to take into account the applicant’s mental health issues, in addition to imposing a sentence which was manifestly excessive in the circumstances of the case.
The applicant submitted, given her Honour’s findings of predominantly a personal use possession with any commercial element only associated with a need to obtain more cocaine for personal use, that there was a clear connection between the applicant’s mental health issues and his offending. It was submitted that Dr Oertel drew a correlation between the applicant’s adverse childhood experiences and his mental health problems, addiction and offending behaviours. She posited that he abused cocaine as a form of avoidance and his problematic cocaine use occurred in the context of psychological, environmental and social factors. In her opinion, the applicant’s “emotional dysregulation contributed to the development of his cocaine use problem and perpetuated an excessive reliance on the substance to maintain a sense of psychological balance”.
Reference was made to Dr Oertel’s report identifying the applicant’s suicidal ideation and recent suicide attempts since arrest and that testing revealed the applicant fell within the severe ranges for depression, and anxiety. Reliance was also placed on the concluding paragraph of Dr Oertel’s report that, “If [the applicant] were to receive a custodial sentence it is highly likely that the stress associated with imprisonment would have a negative impact on his mental well-being (i.e. exacerbation of depressive, anxiety, suicidal symptoms)”.
It was submitted that those factors, as identified in R v Yarwood should at least have resulted in a moderation of the time to be served in custody and a resultant more lengthy period of supervision upon release. The primary submission was that the sentencing judge erred in failing to ameliorate the custodial component of the sentence. The applicant contended that the sentence that should have been imposed was one of 18 months to two years imprisonment with release after a period in the range of four months.
The new report of Ms Krishnan was sought to be relied on to support the contention that the sentencing judge erred and that the sentence imposed was manifestly excessive. In seeking leave to rely on that material, the applicant referred to R v Maniadis, where this Court held that a court of appeal will admit new evidence if its admission shows that some other sentence, whether more or less severe, is warranted in law.
The report of Ms Krishnan reported high levels of stress, depression and anxiety consistent with the findings and opinion of Dr Oertel, and posited that time in custody was highly likely to have a negative impact upon the applicant’s mental health. Although the applicant denied experiencing current suicide ideation, Ms Krishnan opined that his incarceration had exacerbated his symptoms of depression and anxiety and continued incarceration would warrant an immediate risk assessment in relation to suicide and self‑harm behaviours.
In my view, the new evidence does not come into the category in Maniadis. Accordingly, it is only appropriate in this case to grant leave to adduce the report if the Court is required to re-exercise the sentencing discretion.
“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”
The report also set out the following connection between drug use and the applicant’s mental health and social issues:
“When considering [the applicant’s] problematic cocaine use, it seems that this occurred in the context of psychological, environmental and social factors. [The applicant] reported that at the time he was experiencing emotional lability such as depression, irritability and anxiety which appeared to have been exacerbated by recent psychosocial stressors including a marriage breakdown, financial problems, occupational difficulties and the death of a close friend’s mother. It seems that [the applicant’s] emotional dysregulation contributed to the development of his cocaine use problem and perpetuated an excessive reliance on the substance to maintain a sense of psychological balance. It is also notable that at the time, [the applicant] was associating with individuals who also used cocaine … His association with substance-using individuals would have provided access an opportunity for substance use as well as influenced attitudes accepting of substance use. It would appear that [the applicant] developed a dependency for cocaine quite rapidly following his initial use. His problematic cocaine use also resulted in a negative trajectory included impaired control over his drug use, continued use despite significant substance-related problems, persistent psychopathology, and pharmacological features such as tolerance and withdrawal symptoms.”
The report concluded that:
“Based on [the applicant’s] current presentation and low risk of re-offending, it would appear that a community supervision order and subsequent engagement in community-based treatment programs (e.g. relapse prevention counselling, psychological treatment) would meet the rehabilitative goals of sentencing. If [the applicant] were to receive a custodial sentence it is highly likely that the stress associated with imprisonment would have a negative impact on his mental well-being (i.e. exacerbation of depressive, anxiety, suicidal symptoms).”
Notwithstanding that the sentencing judge recorded that the applicant met the criterion for a number of mental health diagnoses according to the clinical psychologist, her Honour expressly stated in the last paragraph of her sentencing remarks that she saw no reason to further moderate the sentence beyond that required to reflect the pleas. In my view, the sentencing judge’s approach to the sentencing discretion miscarried in that there was error in failing to take into account the applicant’s significant mental health issues and their correlation with his offending, including the impact on him of a custodial sentence.
Re-exercise of the sentencing discretion
In relation to the re-exercise of the sentencing discretion, it is appropriate to grant the application’s application for leave to adduce the report of Ms Krishnan and to take that report into account along with that of Dr Oertel.
The psychological report of Dr Oertel outlined that the applicant communicated that he became addicted to cocaine after he separated from his wife when he was 33 years of age. He had commenced that relationship when he was 17 and married when he was 24. The applicant became a heavy user, using between three to five grams of cocaine regularly. He used cocaine to help him cope with difficult feelings and situations he was experiencing such as depression and marriage breakdown. At one period, his cocaine use slowed to one to two grams per day.
Although the sentencing judge remarked that there was no evidence that the applicant had managed to overcome his cocaine use and addiction and that, absent demonstration of complete rehabilitation, the applicant was “a huge risk for future criminal offending”, the psychologist’s report stated that, at the time of the report, the applicant had successfully remained abstinent from cocaine use for a three month period, and, as mentioned, assessed the applicant’s risk of reoffending as low. The report also stated:
“It is important to highlight that [the applicant] possesses a number of protective factors that mitigate his risk of reoffending. This includes having a rewarding and caring relationships (sic) (e.g. father, younger brother, ex‑wife and children), participation in leisure and recreational activities, prosocial attitude and orientation, association with acquaintances that are not involved in criminal activity, and an absence of general personality and behavioural patterns associated with antisocial behaviour. Furthermore, [the applicant] accepts responsibility for his actions and the consequences of law violation.”
I would not re-exercise the sentencing discretion to impose head sentences different from those imposed by the sentencing judge.
I would, however, vary the custodial component to require four months to be served. That moderation is warranted to reflect the need to moderate the sentence to take into account the mental health issues of the applicant and to recognise that incarceration is particularly onerous for him having regard to the matters raised in the report of the clinical psychologist and also the further material disclosed in the report of Ms Krishnan. Bearing in mind that the applicant has been in custody since 30 August 2018, I would vary the sentence imposed by varying the parole release date to 21 December 2018.
The orders I would make are:
- Grant the application for leave to adduce evidence.
- Grant the application for leave to appeal against sentence.
- Appeal allowed.
- Vary the sentences imposed by varying the parole release date from 29 April 2019 to 21 December 2018.
BODDICE J: I agree with Philippides JA.
 AB at 34.13-34.14.
 AB at 34.
 AB at 35.03.
 AB at 35.
 AB at 35.
 R v Maniadis  1 Qd R 593 at 597.
 R v Hicks & Taylor  QCA 207 at ; R v Ungvari  QCA 134 at .
 R v Yarwood  QCA 367 at -, .
 AB at 22.28.
 AB at 49.39.
 AB at 49-50.
 AB at 50.41.
 AB at 45.16.
 AB at 47.26-27.
 AB at 50, para 42.4.
  QCA 367 at -.
 R v Hicks & Taylor  QCA 367 at .
  1 Qd R 593 at 597.
  1 VR 398 at 400.
 (2011) 220 A Crim R 497.
 See R v Clark  QCA 318.
 AB at 50, para 41.
 AB at 50-51, para 42.4.
 AB at 45.
 AB at 50, para 42.1.
 AB at 49, para 37 and at 50, para 42.
 AB at 49, para 38.
- Published Case Name:
R v Sutton
- Shortened Case Name:
R v Sutton
 QCA 318
Fraser JA, Philippides JA, Boddice J
16 Nov 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC965/18; SC1205/18 (No Citation)||30 Aug 2018||Date of Sentence (Atkinson J).|
|Appeal Determined (QCA)|| QCA 318||16 Nov 2018||Application for leave to adduce further evidence granted; application for leave to appeal against sentence granted; appeal against sentence allowed; sentences varied by varying parole release date from 29 April 2019 to 21 December 2018: Fraser and Philippides JJA and Boddice J.|