R v CCN[2020] QCA 195

[2020] QCA 195

COURT OF APPEAL

MORRISON JA

PHILIPPIDES JA

JACKSON J

CA No 336 of 2019

DC No 1019 of 2017

DC No 1013 of 2017

THE QUEEN

v

CCN Applicant

BRISBANE

THURSDAY, 10 SEPTEMBER 2020

JUDGMENT

PHILIPPIDES JA:  This is an application for leave to appeal against the sentence imposed on the applicant on 6 December 2019, on his pleas of guilty to 23 sexual offences over a period from July 2007 to May 2014 involving three children, one of whom was the applicant’s daughter, another was a young girl sent to live with him, raised as his daughter and a third was his daughter’s friend.  He was sentenced to an effective term of imprisonment of 10 years which attracted an automatic declaration as a serious violence offence, which the applicant contends is manifestly excessive.

The basis for that contention is that the learned sentencing judge was not made aware of the applicant’s physical disability concerning what is said to be his profound hearing loss.  The applicant seeks leave to adduce evidence concerning that condition in a form of an affidavit by him and by Dr Keogh, an audiologist, which exhibits a report by her in relation to the applicant’s hearing loss which is based on pre-employment health assessments conducted on 8 October 2014 and 16 December 2015.

Dr Keogh did not meet the applicant to compile the report.  In her report, Dr Keogh opined that the applicant had at least a severe to profound loss in his right ear and mild to severe loss in his left ear which represented a significant hearing impairment which is likely to be a permanent hearing loss which would not be able to be corrected by surgery and which will continue to deteriorate.  Having acquired English as his second language, the hearing loss has significant implications on his ability to hear speech in noisy environments, such as a correctional facility.

She considered that the impact of the applicant’s hearing impairment in the context of a noisy prison environment will significantly impact on his functional capacity overall and his ability to communicate is compromised.  Given the degree of hearing loss and the complexities of hearing speech in noisy environments, Dr Keogh opines that the applicant would be assisted by hearing aids.  She also states that assisted listening devices, supports and auditory rehabilitation will assist with his functioning and provide equitable access to communication.

The applicant’s solicitor is not seeking to criticise his previous solicitors for failing to procure a report concerning hearing impairment at the time of sentence.  The applicant relies on the Court’s discretion to admit evidence on an appeal against sentence where it is in the interests of justice, as discussed in R v O'Shea [2011] QCA 18, because its admission would cause the Court to form the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed in the exercise of the power under s 668E(3) of the Criminal Code (Qld).

The applicant submitted that the report of Dr Keogh would cause this Court to form the view that another less severe sentence should have been passed on the applicant, given the extent of the hearing loss described in the report and its effect on the applicant’s incarceration.  It is submitted that had Dr Keogh’s evidence been before the sentencing judge, a different sentence would have been imposed, taking into account that prison would be more onerous on the applicant than a prisoner without his hearing issues.

The respondent opposes the admission of Dr Keogh’s report.  It is correctly submitted that Dr Keogh’s report is not fresh evidence, being based on two prior assessments in 2014 and 2015, and could with reasonable diligence have been obtained and put before the sentencing judge at the sentencing hearing.  In considering whether further evidence may be adduced, it is to be borne in mind, as stated in R v Spina [2012] QCA 179, that it is generally not in the public interest to enable defendants to hold back evidence that could have been put before the Court at trial or, as in this case, on sentence following pleas of guilty.

As the respondent submits, little is said about why the applicant only now, having been in prison for some two and a half years, submits that prison would be more onerous for him in circumstances where various health professionals who provided pre-sentence reports did consider his circumstances in prison prior to sentence.  Those health professionals, in contrast to Dr Keogh, did meet with the applicant.

Further, no evidence is put before the Court concerning any specific issues that the applicant has thus far faced in custody.  In fact, as the respondent rightly submits, there is evidence indicating the contrary, including in the pre-sentence report of Dr Sundin dated 14 March 2019, which notes that the applicant is skilled at management strategies such as, for example, learning from pictograms during his work as a boilermaker.

Moreover, in Dr Kovacevic’s report dated 5 November 2019 it was reported that the applicant was engaging proactively in activities in prison.  He has received a job as a cleaner, engages with other inmates by playing chess and works on maths problems as well as watching television.  He otherwise reported generally being healthy, interacted well with the interpreter, demonstrated a reasonable level of attention and the questions were seldom repeated.  He demonstrated ability to learn new information.

Further, even Dr Keogh’s report acknowledges that various approaches and devices could be adopted to assist the applicant in respect of any issues he might face, but about which, as I stated, there is no evidence before the court.  In the circumstances, I am not satisfied that the admission of Dr Keogh’s report into evidence would cause this Court to form the view that some other sentence was warranted and should have been passed on the applicant.

There is not sufficient evidence to demonstrate that prison would be more onerous for the applicant to a material degree.  He has managed in prison for two and a half years apparently without any reported significant or major issues or incidences.  I would accordingly refuse the application to adduce further evidence.  In those circumstances, the application for leave to appeal against sentence should also be refused, there being no error alleged in the exercise of the sentencing discretion.

MORRISON JA:  I agree.

JACKSON J:  I agree too.

MORRISON JA:  The orders of the Court are as follows: application for leave to adduce further evidence is refused, application for leave to appeal against sentence is refused.

Nothing further?

MR LEWIS:  No.  Thank you, your Honour.

MR COOK:  Thank you, your Honour.