R v Gaerlan[2014] QCA 145

SUPREME COURT OF QUEENSLAND

GOTTERSON JA:  On the first of November 2012, at the Supreme Court at Townsville, the applicant Jason Damien Gaerlan was convicted on pleas of guilty to one count of trafficking in a dangerous drug, methamphetamine – that was count 1 – and a second count of possession of the same, count 2.  This drug was in crystalline form.  On analysis, it revealed a pure weight of 92.2 grams.  The applicant was sentenced that day on both counts to imprisonment for six years.  A parole eligibility date of the 1st of November 2014 was set.  At the same time, the applicant was also convicted on guilty pleas on a further count of possessing certain other drugs for which a concurrent sentence of 18 months was imposed and two counts of possession of utensil offences for which convictions were recorded but no further punishment imposed.  The date of offending for all offences was the 21st of October 2010.

Today, the applicant seeks both an extension of time to apply for leave to appeal against sentence and leave to appeal the sentence.  His ground of appeal is that a factor relevant to sentencing of which evidence is now available was not placed before the learned sentencing judge or taken into account by him.  The recent availability of this evidence also underlies the application for extension of time.

The applicant is now 30 years old.  The offending was depicted when a vehicle in which he was travelling was intercepted on the Bruce Highway near Gin Gin.  The applicant was fulfilling his role as a carrier – I should say courier – on a drug run from Sydney to Townsville.  He was to be paid a fee of $3,000 for this work.  The methylamphetamine involved had a retail value to the person who engaged him of between $140,000 and $395,100.

The learned sentencing judge took those matters into account as well as the facts that the applicant, prior to this offending, had had a useful and productive life, that his criminal history was both minor and, presently, irrelevant, and that he had cooperated with the administration of justice by virtue of his admissions.  His Honour was informed during the submissions that, from 2002 until 2008, the applicant had served in the Australian Army.  He was stationed in Townsville and saw a tour of duty in Iraq and then East Timor.  A reference was made by his counsel to stressful experiences in dealing with violent conflicts where there were very often severe injuries and deaths.  In sentencing, his Honour remarked:

“You served with the army between 2002 and January 2008 and you served overseas tours in Iraq and Timor.  You left the military services in 2008 because of matrimonial difficulties that you and your partner were encountering.”

The new evidence to which I have referred consists of a recent affidavit of Mr Robert Zemaitis, a psychologist to which is attached his report dated 20th of May 2014 and an affidavit of the applicant sworn on the 20th of May 2014.  Mr Zemaitis has assessed the applicant’s psychological state over three sessions during 2013 and 2014, most recently in March this year.  He is of the opinion that the applicant at the time of the offending was suffering from a post-traumatic stress disorder chronic, a PTSDC, and that he continues to suffer from it.  This condition is a consequence of exposure to extremely traumatic experiences during his overseas service.

Mr Zemaitis says that, in his many years of experience in treating soldiers who have returned from deployment suffering from significant disorders such as PTSD, he has observed that it was not unusual for ex-military members to use alcohol and other substances such as amphetamines to help cope with their various symptoms as they struggled to adapt to life away from the military.  He expresses the view that the applicant’s decision to undertake the Sydney trip and engage in the offending was out of character for him.  It reflected a lack of clear thinking.  It was symptomatic of deterioration of his cognitive functions at the time resulting from his efforts to cope with the severe impact of his symptoms of PTSDC and also associated depression.  In addition, Mr Zemaitis noted that the applicant is an intelligent person with significant insight into his condition.  He is motivated towards counselling for further treatment for it.  Mr Zemaitis considers that, if the applicant undergoes appropriate treatment, he is at minimal risk of re-offending.

In his affidavit, the applicant states that he began experiencing symptoms after returning from East Timor in 2007.  He resisted seeking treatment whilst a soldier.  He first sought help in 2010.  He attended about half a dozen counselling sessions but found it difficult to engage.  He was not told then that he was suffering from any form of illness.  He first sought psychiatric assistance in June 2013 at a time when he was in prison.  He did so because he was having difficulty sleeping and was having negative thoughts about himself.  The psychiatrist prescribed medication which he undertook on a trial basis.  In August 2013, he consulted solicitors who arranged for a psychologist’s assessment of him by Mr Zemaitis.

The learned sentencing judge did not have evidence before him of the applicant’s stress disorder at the time of the offending or how it contributed to the offending.  These are significantly relevant matters.  By revealing the link between the applicant’s psychological state and the offending, the evidence has an impact upon the criminality of the latter.  It has frequently been observed, including recently in this Court in R v Huff [2012] QCA 138 that, where present, such a link can have a modifying influence in fulfilling the sentencing purposes of deterrence, punishment and denunciation in the case at hand.

Although this evidence is arguably not fresh evidence but new evidence, the residual discretion to admit new evidence recognised in R v Spina [2012] QCA 179 ought to be exercised in this instance.  In written submissions, the respondent had indicated that that course is not opposed.  In R v Maxfield [2002] 1 Qd R 417, this Court held that the admission of new evidence entitles the Court to exercise the sentencing discretion afresh.  I accept that, but for this evidence, the sentence of six years imprisonment that was imposed would have been an appropriate one, however, giving deal allowance for the applicant’s psychological condition and its contribution to his offending, I consider that an appropriate sentence here for count 1 is five years imprisonment.

A good parallel in terms of allowance for an extenuating or special circumstance can be drawn with another decision of this Court, R v Dean [1999] QCA 378, the 8th of September 1999.  In that case, a 34 year old drug courier whose fee also was $3,000 was sentenced to five years imprisonment.  She was transporting about 205 grams of methylamphetamine.  The Court was of the view that, but for special circumstances, the sentence could well have been six years.  These circumstances were the mode of conveyance of the drugs by way of condoms inserted vaginally.  As a consequence, the appellant suffered potentially fatal injuries which required surgery.

In my view, the applicant has a viable ground of appeal, both an extension of time and a grant of leave to appeal are warranted.  The appeal should be allowed to the extent of substituting for count 1 a term of imprisonment for five years.  He ought have the benefit of suspension after serving 596 days, that is, until today.  For count 2, an appropriate sentence is three years probation.  I would therefore propose the following orders:

1.Extend time for filing and serving the application for leave to appeal against sentence to the 12th of May 2014.

2.Grant leave to appeal against sentence.

3.Grant leave to adduce further evidence on appeal by way of the affidavit of Mr Robert Zemaitis and the affidavit of the applicant both filed on the 22nd of May 2014.

4.Allow the appeal.

5.Set aside the sentence for count 1 and substitute a term of imprisonment of five years to be suspended after serving 596 days for an operational period of five years.

6.Set aside the sentence for count 2, and instead, order that the applicant be placed on three years probation on the terms and conditions set out in s 93 of the Penalties and Sentences Act 1992 (Qld) and that he report to the Townsville office of Probation and Parole by 4 pm on the 20th of June 2014 with a further condition that the applicant submit to such medical, psychiatric or psychological treatment or counselling as directed by an authorised corrective services officer.

7.Otherwise affirm the sentence under appeal.

8.Direct the registrar to forward a copy of Mr Zemaitis’ report to the relevant authorities.

MARGARET McMURDO P:  I agree.  One of the unusual features of this case is that by the time this Court has granted the application for an extension of time and the application to adduce further evidence the applicant has now served about 20 months of his sentence.  Gotterson JA has dealt with the unchallenged evidence from the psychologist Mr Zemaitis.  This demonstrated that the applicant suffered post-traumatic stress disorder as a result of his war service as an Australian soldier in Iraq and this was exacerbated by his subsequent service in Timor.  The unusual history and other circumstances of this case mean that, although this Court is combining a sentence of probation with a term of imprisonment suspended after 20 months, that order is not inconsistent with the principles stated in R v Hood [2005] 2 Qd R 54, [47].  The sentencing orders substituted today can and do have a consistent effect.

I agree with the orders proposed by Gotterson JA.

HENRY J:  I also agree with Gotterson JA’s reasons and the orders proposed and the reasons of her Honour, the President.

MARGARET McMURDO P:  The orders are as proposed by Gotterson JA.  Adjourn the Court.