R v Barratt[2014] QCA 227

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The applicant for leave to appeal against sentence was convicted on her own plea of guilty of one count of possession of cannabis in excess of 500 grams; one count of possession of cannabis simpliciter; and one count of possession of diazepam.  For the first of those offences, she was sentenced to 18 months’ imprisonment, suspended after six months with an operational period of three years, while concurrent sentences of three months’ imprisonment were imposed in respect of each of the other counts.  The grounds for her proposed appeal were that the sentencing judge had taken into account irrelevant considerations and that the sentences imposed for all counts were manifestly excessive.

[2] An agreed schedule of facts was tendered at the sentence hearing.  Police at Rollingstone in northern Queensland approached the applicant’s vehicle, in which she was travelling with another woman.  The applicant informed the officers that they were returning from a shopping trip in Cairns (presumably to her home in Townsville).  On searching the vehicle, the police found a bag in the boot which contained 3.178 kilograms of cannabis in cryovac plastic bags.  That was the subject of the most serious of the counts to which the applicant pleaded guilty, conceding that her possession was for a commercial purpose.  The cannabis was estimated to have a cost price of between $31,500 and $38,500.  It was said that depending on the quantities in which it was sold (i.e. by the ounce or in foils of one to 1.5 grams), the potential profit to the applicant ranged between $44,800 and $79,375.  The remaining counts, of possession of cannabis simpliciter and possession of diazepam, related to the finding of four grams of cannabis and three Valium tablets in a suitcase in the vehicle.

The applicant’s criminal history

[3] The applicant was 52 when she was arrested.  She had a prior criminal history which consisted of two counts, both involving possession of cannabis.  In 1999 she was ordered to perform 80 hours community service, with no conviction recorded, for possession of drugs and possession of property reasonably suspected of being used in connection with a dangerous drug.  On that occasion police had found 554 grams of cannabis, scales and a smoking implement in her house.  In 2004, she was fined $500 in the Magistrates Court, again without any conviction being recorded, after police found 150 grams of cannabis with a number of clip seal plastic bags, scales and a water pipe, in her house, leading again to a charge of possessing drugs and another of possessing property suspected of having been used in connection with the commission of a drug offence.

The submissions at sentence

[4] The Crown prosecutor at sentence relied on decisions of this Court in R v Kalaja[1] and R v Smith.[2]  In Kalaja, the applicant had pleaded guilty on an ex-officio indictment to a number of drug-related counts, the most serious of which was possession of 4.51 kilograms of cannabis sativa which he bought in Adelaide for $24,500 and brought to Queensland.  He was also charged with dangerous operation of a motor vehicle, resulting from his attempt to evade police with the cannabis in his car.  He admitted to having sold one and half pounds of cannabis already, that admission resulting in his being charged with one count of supply, and to having made a deal for the sale of the remaining cannabis at a profit of about $10,000, resulting in a second supply count.  He was sentenced to concurrent terms of 18 months’ imprisonment to be suspended after six months, with an operational period of three years.

[5] The applicant in Kalaja was 22 years old and had overcome a difficult childhood to undertake tertiary studies.  He had been fully co-operative, making admissions and pleading guilty on an ex officio indictment.  He had some criminal history including convictions for having gone armed in public so as to cause fear, wilful damage, stealing, and assaulting police; the most severe penalty thus far imposed on him was six months’ imprisonment wholly suspended.  His application for leave to appeal against sentence was dismissed, the court concluding that the overall terms of imprisonment were not excessive.  The applicant had the cannabis for the purpose of commercial gain and there was some sophistication in his actions; he had agreed upon terms of sale for it very soon after bringing it to Queensland.  He had put the lives of other people at risk in attempting to evade the police.  The dangerous operation count of itself would have justified a sentence of imprisonment actually to be served.

[6] In Smith, the applicant was sentenced to four years imprisonment, wholly suspended with an operational period of five years, and was also ordered to serve 80 hours community service on one charge of possessing cannabis in excess of 500 grams.  He had entered an arrangement with two other people, under which one of them, a man named Carter, was to purchase ten pounds of cannabis for sale, the applicant contributing $10,000 to the purchase price.  The applicant was a 32 year old man with no previous criminal history.  Carter, who had purchased and was in possession of the cannabis, had been sentenced to 18 months’ imprisonment, suspended after six months, with an operational period of two years.  The prosecutor conceded that no authority supported the imposition of a four year term.  Parity also required that the applicant receive a lesser sentence than his co-accused, Carter, who had played a more active role, had a substantial prior criminal history and had committed the offence during the currency of a suspended term of imprisonment.  The leave application and appeal were allowed and a sentence of twelve months wholly suspended, with an operational period of 24 months, was substituted.

[7] The prosecutor in the present case pointed to distinguishing features between those cases and the applicant’s.  She had a criminal history relating to drugs, was of mature age, stood to make a higher profit and possessed the entire quantity of cannabis on her own account, not with others.

[8] The applicant’s counsel submitted on his client’s behalf that she had held responsible positions during her working life, including as catering supervisor at major hospitals, but in later life had been diagnosed as suffering from bipolar disorder.  She had at one stage required hospitalisation for a psychotic episode.  That was confirmed by a letter from her treating general practitioner, who said that the condition was controlled by daily medication.  The doctor expressed the opinion that incarceration “would likely be very detrimental to [the applicant’s] mental health”.  The applicant, who had two adult children, had been a heavy user of cannabis since her twenties.  References were tendered from four people, all of whom referred to the applicant’s struggles with bipolar disorder and spoke of her caring and helpful character.

[9] The applicant placed reliance on Smith and another decision, R v Clarke,[3] of which mention was made in Kalaja.  In that case, a 32 year old applicant received a sentence of 18 months’ imprisonment, suspended entirely for an operational period of four years, after being convicted of possession of 1.2 kilograms of cannabis.  He was convicted on the basis that he was minding it for someone else who he knew intended to sell it, but was not himself proposing to make any commercial gain.  He had some criminal history, but not for drug offences.  It was submitted that, as in Smith, the applicant should be sentenced to twelve months’ imprisonment, and that, as occurred in both Smith and Clarke, that term of imprisonment should be wholly suspended.

The sentencing judge’s remarks

[10] The sentencing judge accepted that the applicant’s plea of guilty was a timely one.  He noted that the applicant had the support of family and friends and that the character references spoke highly of her.  He also noted the applicant’s mental health condition.  However, drugs were a cause of misery in the community, and the legislature had set high penalties to make it clear that participation in the business of providing them had serious consequences.  Although a wholly suspended sentence had been urged, such a course was appropriate in rather different cases; in Clarke, for example, the applicant was no more than a minder of the cannabis, with nothing to gain.  That was not the applicant’s position.  She was not entitled to the same consideration as the applicant in Kalaja, who had co-operated very early with the police, while Smith was a case of a very early plea by a person who had no previous convictions.

[11] The applicant had made efforts to avoid detection by pretending to be on a shopping trip; she was in the process of transporting a very large quantity of cannabis over a significant distance; the possession was commercial with potentially high profit returns; and she had not co-operated with police.  It was the third time she had been before the court in respect of cannabis charges involving significant quantities.  Deterrence required a sentence of imprisonment, and the particular features of the case made it appropriate that the applicant serve some part of the sentence in custody.  His Honour observed,

“I note that your general practitioner asserts that that mightn’t be good for you, but that is often the consequence of sentences that I must impose.”

The irrelevant considerations ground

[12] The applicant submitted here that the sentencing judge had characterised the offences as other than isolated, when there was no evidence to support such a finding.  That was a reference to this remark by his Honour:

“It was really terribly bad luck that the police just happened upon you in the little town of Rollingstone – something rather akin to locating a needle in a haystack”.

That comment came about because the schedule of facts had originally indicated that the police were aware of intelligence information that the applicant

“was driving to Cairns to source large quantities of cannabis … [and] would travel using one of two vehicles registered in her name … with another person under the guise of a shopping trip”.

After some discussion, the Crown prosecutor agreed to remove that statement, accepting that she did not have evidence to support it.  His Honour responded (still in the course of submissions),

“And I should work on the basis that a couple of experienced drug officers just happened upon this car in the car park at Rollingstone… I probably look as though I came down in the last shower but I didn’t, you see.”

[13] However, I do not think that his Honour’s reference to “terribly bad luck” in his sentencing remarks can be taken as more than a wry intimation that the notion of a fortuitous stopping of the applicant’s vehicle strained credulity.  Plainly, although the mention of intelligence information was removed from the statement of facts, police had some cause to speak to the applicant, and his Honour’s comment indicated the implausibility of supposing otherwise.  But it did not follow from the obvious conclusion that the vehicle was under observation that this was a repeat exercise.  Nor is there any warrant in what his Honour said for concluding that he was acting on the basis that there had been some prior offending.

[14] It was also contended that the sentencing judge’s observation that the applicant had endeavoured to avoid detection by pretending to be on a shopping trip and his allusion to her transporting cannabis a very significant distance amounted to matters improperly taken into account.  There was no evidence, it was submitted, that the shopping trip was not genuine, and it was not far from Cairns to Rollingstone, where the applicant was apprehended.

[15] However, his Honour’s reference to those features was, in my respectful view, appropriate.  The applicant did profess to the police to have been to Cairns shopping.  Although that might have been an activity she had in fact carried out, it was a reasonable inference that what she said to the police was an endeavour to divert attention from the real purpose of the trip.  The round trip required from Townsville to Cairns was a significant undertaking; the point was that this was not some adventitious purchase of drugs but a premeditated journey some considerable distance to acquire them.

The ‘manifestly excessive’ ground

[16] The applicant submitted that the sentencing judge in imposing sentences requiring actual imprisonment had failed to take into account the significance of the applicant’s psychiatric disorder, with the result that the sentences were manifestly excessive.  She relied on R v Yarwood[4] as to the principles to be applied where mental illness was involved.  In that case, the applicant was a solicitor who had dishonestly misappropriated funds.  He suffered from a major depressive disorder and was said by his treating psychologist to be “severely mentally impaired”.  Both the psychologist and the psychiatrist who treated the applicant had given the opinion that incarceration would have serious adverse consequences for his psychological and psychiatric well-being.

[17] In Yarwood, White JA, with whom the other members of the court agreed, cited two Victorian authorities, R v Tsiaras[5] and R v Verdins[6], as to the significance of psychiatric illness in sentencing.  In Verdins, the Court of Appeal, which adopted propositions from Tsiaris, identified the relevance of impaired mental functioning to sentencing in the following ways:

“1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”[7]

[18] In Yarwood, the principal reason for the court’s concluding that the sentence was manifestly excessive and substituting a lower sentence (but one which still entailed the service of nine months in actual custody) was that insufficient recognition had been given to the role of the applicant’s mental illness in his offending and that it was the result of events beyond his control; while regard was also had to the extra suffering that imprisonment would impose on him.[8]

[19] The applicant’s written argument had asserted a failure to take into account the fact that her mental ill-health reduced her moral culpability for the offences, but her counsel conceded in oral submissions that there was no evidence of any connection between her disorder and the offending which could have that effect.  Nonetheless, he relied on the sixth of the factors identified in Verdins: that as the general practitioner’s report confirmed, there was a serious risk of imprisonment’s having a significant adverse effect on the applicant’s mental health.  The sentencing judge had not taken that factor into account, as was evidenced, firstly, by his remark in respect of the general practitioner’s statement and, secondly, the sentence which he had imposed.  As to the first, his Honour had been dismissive of the doctor’s opinion, and saying that such a result (as the detriment to which to the doctor referred) was “often the consequence of…sentences” showed a failure to distinguish between the adverse impact of custody on the population at large and the particular type of harm identified in Verdins.  As to the second matter, the applicant’s timely plea of guilty of itself could have been expected to result in a parole release date after a third of the head sentence, so it was evident that there was no further amelioration to reflect the implications of imprisonment for the applicant’s mental condition.

[20] The respondent submitted that sentencing judge’s comment should not be taken as indicating that he gave no weight to the applicant’s psychiatric condition.  As to the sentence imposed, counsel argued that Smith, relied on at first instance, was distinguishable because of the parity issues involved in that case, and referred the court to R v Klumper[9] and R v Batemberski.[10]  They were both cases in which actual imprisonment was imposed, notwithstanding that the applicant suffered from a significant mental health condition.  The applicant in Batemberski was sentenced to two years imprisonment, having been convicted at a trial of possession of a marijuana crop consisting of 130 plants (but not of its production).  He was 38 years old and had some old and minor convictions for cannabis possession.  He had been seeing a psychiatrist who gave the opinion that he suffered a delusional paranoid disorder.  Having regard to comparative cases and the applicant’s significant psychiatric difficulties, this Court, by majority, reduced the sentence of two years’ imprisonment to one of fifteen months, without any parole recommendation.

[21] In R v Klumper, the applicant was convicted of producing some 60 plants and possessing 850 odd grams of dried cannabis.  She was sentenced to twelve months’ imprisonment, suspended after four months, with an operational period of eighteen months.  That applicant was 65 years old, was of previous good character and had pleaded guilty on an ex-officio indictment.  It was said that she was on a disability pension and suffered from depression, although no material was tendered concerning it.  She had been persuaded into the crime by her co-accused, to relieve him of some unidentified difficulties.  This Court, while observing that a non-custodial sentence would have been open, regarded as equally available the conclusion that a deterrent sentence involving actual imprisonment was warranted.  The application for leave to appeal against sentence was refused.

[22] Returning to the present case, the general practitioner’s letter was entirely unspecific as to the actual implications of imprisonment for the applicant’s mental health, while indicating that her disorder was controlled on medication.  Still, his broadly expressed opinion that imprisonment would be detrimental was unquestionably a factor to be taken into account, although its weight was limited by the lack of detail.  If the applicant’s contention is correct and the sentencing judge dismissed it, he was wrong to do so.  However, I am not convinced that he did.  It seems to me that his Honour’s remark amounted to a recognition of that consideration, with a conclusion, nonetheless, that it could not outweigh the necessity that some period of imprisonment be served; the harmful effect of imprisonment, not, in general terms, precluding its imposition.  The latter view is unquestionably correct: nothing in the authorities dictates that a person suffering from a mental disorder cannot be required to serve a period in custody.

[23] Nor do I accept that the fact that the applicant received no greater mitigation than release after a third of the head sentence indicated of itself that the implications of imprisonment for her mental health were not taken into account.  There were countervailing factors, such as the lack of co-operation other than by her plea and, more particularly, her previous criminal history, which might have led to the custodial part of the sentence being set somewhat higher.  Taking into account also the seriousness of the offence, the potential for commercial gain and the lengths gone to in order to obtain the cannabis, while allowing also for the mitigating factors of the applicant’s mental illness and the guilty plea, the imposition of an 18 month sentence entailing actual custody was within a proper exercise of discretion.

[24] An argument might have been made about the length of the three month sentences, particularly that for the possession of diazepam, but, understandably, given the practical outcome, the applicant took no issue in that regard.  It is noted, however, that the court order sheet and, consequently, the verdict and judgment record, wrongly record those sentences as being six months’ imprisonment.  The transcript of the sentencing judge’s orders makes it clear that the period imposed was three months, and that was the basis on which both parties argued the application.  The error should be corrected.

[25] I would refuse leave to appeal against sentence, but order that the court order sheet and verdict and judgment record be corrected to record the sentences on counts 3 and 4 as three months’ imprisonment.

[26] ANN LYONS J:  I agree with the reasons of Holmes JA and the orders she proposes.

[27] FLANAGAN J:  I agree with the reasons of Holmes JA and the orders she proposes.