R v Shabanzadeh[2025] QCA 92

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 11 April 2024 the applicant was convicted on his own pleas of guilty to 9 counts of supplying dangerous drugs; 6 counts of possession of dangerous drugs and one count of contravention of an order and on 12 July 2024 was convicted on his own pleas of guilty to 5 summary charges.  His offending had been committed during the period 19 October 2021 to 16 March 2023.
2. [2]
   The sentencing hearing occurred on 12 July 2024.  The Crown submitted to the sentencing judge that the appropriate global head sentence was of the order of ten years’ imprisonment, with parole eligibility after two years.  The applicant’s counsel had submitted that the starting point for the head sentence should be nine years’ imprisonment, with parole eligibility after between 12 and 18 months.
3. [3]
   The sentencing judge imposed a global sentence of nine years’ imprisonment in respect of the most serious of the possession counts and lesser concurrent sentences on other counts and summary charges.  A total of 58 days in pre-sentence custody was taken into account but not declared and the sentencing judge set a parole eligibility date two years from the date of sentence.
4. [4]
   The applicant now applies for leave to appeal against his sentence.
5. [5]
   As his application was originally filed, his proposed ground of appeal was that the sentence was manifestly excessive.  He no longer pursues his application on that basis.
6. [6]
   Rather he now applies for leave to adduce further evidence to prove the fact of his having suffered a serious assault in prison and to demonstrate the consequences of that assault on his psychological state.  On that basis he would seek to amend his ground of appeal so that it would read:

“The sentence imposed was manifestly excessive having regard to what is now known of the applicant’s psychological state following a serious assault in prison.”

7. [7]
   The applicant acknowledged that the success of his application for leave to appeal on that basis was entirely contingent on the Court granting the application to adduce further evidence.
8. [8]
   For reasons which follow, the application to adduce further evidence should be refused.  Accordingly, the application for leave to appeal against sentence should also be refused.

Relevant background to the applications

9. [9]
   The applicant had a relevant criminal history comprising two previous periods of imprisonment for trafficking in dangerous drugs.  In particular, on 31 October 2007 he was convicted for trafficking in dangerous drugs between 15 November 2003 and 24 September 2004 and sentenced to seven years’ imprisonment with a parole eligibility date of 30 April 2010.  On 22 September 2015 he was convicted of trafficking in dangerous drugs between 25 May 2012 and 15 October 2012 and sentenced to 11 years’ imprisonment.  The offending the subject of the second conviction occurred whilst the applicant was being supervised on parole in respect of the first conviction.
10. [10]
    The index offending was discovered consequent upon the execution by police of a search warrant at the applicant’s residence in Brisbane on 16 March 2023.  The supply counts were identified consequent upon police downloading information from the applicant’s mobile phone as part of their investigation.  Review of the information downloaded revealed that the offending took place between October 2021 and March 2023, again whilst the applicant was being supervised on parole in respect of his previous convictions.
11. [11]
    The history just recited meant that s 209 of the Corrective Services Act 2006 (Qld) operated so that, having committed offences during the period of parole orders, the applicant’s parole orders would be taken to have been automatically cancelled on the dates on which the offending occurred.  The sentencing judge found that the effective 18 years of imprisonment imposed in respect of the two trafficking offences had not yet been completely served and would not be completely served for about a further 15 months.  The sentencing judge accepted the common ground submission that the sentence she imposed should run concurrently with the remainder of the existing term.
12. [12]
    The applicant was sentenced on the basis that –

    1. the index offending was commercially motivated and he had an intention to engage in future drug transactions;
    2. he knowingly possessed commercial quantities of methylamphetamine and cocaine for his commercial purposes;
    3. he knowingly possessed of a little over 14 grams of heroin for his commercial purpose and his own use;
    4. he knowingly possessed a further quantity of 353 grams of heroin in brick form which he knew was destined for commercial exploitation by his drug supplier and which he was storing for that purpose in exchange for which he got the commercial benefits of discounts for wholesale quantities of methylamphetamine, cocaine and heroin and expected to receive cheaper methylamphetamine and cocaine in the future;
    5. he was also a drug user during the period of his offending.
13. [13]
    Amongst the many considerations taken into account by the sentencing judge was the picture painted by expert opinion evidence concerning the applicant’s mental health.
14. [14]
    The principal evidence was that contained in a detailed forensic psychologist’s report dated 9 July 2024.  Of that report the following observations may be made:

    1. Opinion had been sought from the psychologist regarding the applicant’s psychological functioning; contextual factors relevant to his offences and his risk of re-offending; as well as recommendations for appropriate management of identified risk factors.
    2. The applicant had reported to the psychologist that when he was a child his father used to drink alcohol to excess and become violent toward his mother and towards him.  In addition to the physical violence which he both experienced and witnessed as a child, he had been sexually abused around the age of 10 to 11 by an older boy.  The psychologist reported that the applicant had significant difficulty disclosing this abuse and that he had described it as having a powerful and negative impact on his mental health throughout his adolescence and into adulthood.
    3. The psychologist noted the applicant’s mental health history.  In particular, he noted that the applicant had seen a psychiatrist between 2011 and 2012 and had a number of admissions to hospital where he was diagnosed with major depressive disorder and a generalised anxiety disorder.  He was currently seeing a treating psychologist.
    4. The psychologist recorded the significant drug misuse and criminal history of the applicant including by observing (emphasis added):

“While in custody, [the applicant] reported that he was exposed to significant amounts of violence and illicit substance use.  He described one incident where he was beaten unconscious and was later targeted by associates of the perpetrator.  This led to a two-year period of threats and harassment, during which he described being in constant fear of further attacks and using substances to cope.”

5. Under the heading “Diagnosis”, the psychologist recorded (emphasis added):

“[The applicant] has previously been diagnosed with a major mood disorder and an anxiety disorder.  While he did not present with any prominent indicators of either of these at interview, this is likely a result of sustained treatment and improved lifestyle stability.  However, I would also consider that [the applicant] has outstanding treatment needs relating to the traumatic experiences of his childhood and while incarcerated.  He reported ongoing hypervigilance, intolerance of loud noises and an exaggerated startle response, which suggests chronic post-traumatic stress.”

6. The psychologist concluded that the applicant was at a moderate risk of re‑offending.
7. Under the heading “Opinion and Recommendation” the psychologist concluded his report in the following way (emphasis added):

“As [the applicant’s] use of illicit substances escalated and expanded, he became increasingly involved in criminal behaviour to support his growing dependence.  While this involved increasing risk to his safety and freedom, it also likely provided him with a sense of identify and belonging, within the criminal subculture of the ‘drug-scene’, which would have added to the difficulty he experienced in trying to extricate himself by seeking treatment for his substance dependence.  In addition to this, [the applicant] was further traumatised by the violence he experienced while in custody, which only added to the accumulated mass of mental health issues overwhelming his under-developed coping skills.

While [the applicant] has shown commendable focus in stabilising his life since September 2023, maintaining employment and abstinence from illicit substances, he continues to struggle with the long-term effects of multiple historical traumas, and institutionalisation due to his extensive custodial history.  As such, I would consider that his relatively stable mental state at present is still quite fragile and he will likely need a substantial period of ongoing psychological treatment.

Therefore, I would consider that [the applicant] requires the support of a suitably experienced clinician who can assist him with processing trauma, building emotional resilience, and reinforcing his sense of self-worth; while also focusing on relapse-prevention, problem-solving, and adaptive-coping skills.

In addition, while I respect and acknowledge the sole authority of the Court in determining the appropriate sentence for [the applicant] to serve, I must also consider that further incarceration will likely add to the length of future treatment required; due to the effects of institutionalisation and his increased vulnerability to experiencing post-traumatic stress symptoms, as a result of his previous trauma.”

15. [15]
    Her Honour took that evidence into account and in her sentencing remarks stated:

“I have regard to the fact that your particular features and mental health concerns have contributed to your offending, and that mitigates against the sentence that I should impose.  I also have regard to the fact that because of those mental health concerns your time in custody is likely to be more difficult for you than it might be for others.”

The further evidence which the applicant seeks to adduce

16. [16]
    For reasons which will become clear, it is necessary to record in a little detail how the evidence which the applicant seeks leave to adduce came to be placed before the Court.
17. [17]
    When the application first came on for hearing the application sought to adduce evidence in the form of –

    1. an affidavit from the applicant; and
    2. two affidavits from his solicitor.
18. [18]
    The affidavit from the applicant recorded that it sought to set out “… a detailed account of what has happened to me whilst in custody and what I have been through over the last eight (8) months, since being sentenced on 12 July 2024.”
19. [19]
    The principal event recorded in the affidavit was that the applicant had been the subject of a serious assault by other inmates on 18 November 2024.  As to that event the applicant recorded:

“On 18 November 2024, upon arriving in S 16 and not being there for more than 10 minutes, I was brutally assaulted, resulting in me being knocked unconscious and sustaining significant injuries as a result of a protracted assault upon me by multiple inmates.

I have no recollection of the assault, but have been told by different people, including corrective services officers, inmates, staff at the hospital, and my solicitor, that the assault was brutal and significant, resulting in me being knocked unconscious and my head being stomped multiple times.

I have also been told by inmates that I had been sexually assaulted by a prisoner, by them putting a bread bag on their hand and putting his fingers in my anus.

As a result of the assault, I was told that I was left unconscious and alone for around fifteen (15) to twenty (20) minutes.”

20. [20]
    He was required to have treatment in hospital.  Upon his return to prison he was put into the detention unit for 2 weeks, having been told it was for his own safety and that due to his significant injuries and fractures and he would be at risk in the general population.
21. [21]
    He deposed that while he had been imprisoned for a significant time during his life, his current period was the most difficult he had ever faced.  He has significant ongoing physical pain which had to be treated by prescription medication.  Being on prescription medication impacted his mental health given the efforts he had made in rehabilitation to get off all prescription medication.  That caused him “significant mental anguish”.  Since the assault he has been constantly in fear and in a “heightened state of anxiety”.  He felt that since the assault he has had a significant detriment to his previous mental health status.  He was too frightened for his safety to leave his unit in the prison.  Accordingly, he had cancelled personal or legal visits by anyone coming to seek him.
22. [22]
    The first affidavit of the solicitor –

    1. exhibited medical records documenting the injuries which the applicant had suffered consequent upon the assault;
    2. recorded the solicitor’s own observations about the assault, having had the opportunity to view recorded CCTV footage of what had occurred; and
    3. annexed a report dated 20 March 2025 which he had obtained from the psychologist who had provided the report to which reference has been made at [14] above.
23. [23]
    It will be necessary to come back to the terms of that report.
24. [24]
    The second affidavit of the solicitor exhibited what was described as an amended form of the report exhibited to the first affidavit.  The amended report was dated 25 March 2025.  The reason for that report was explained in these terms:

“Prior to filing our material on 25 March 2025, our office had requested that [the psychologist] address specific links between the prison incident and his condition at the time of sentencing.”

25. [25]
    Before recording the next event, it is appropriate to note that in Alessawi v R [2025] VSCA 23, judgment published on 3 March 2025, the Victorian Court of Appeal had dealt with an application to adduce evidence on an application for leave to appeal against sentence which had some analogies to the present case.  An applicant had applied for leave to appeal against sentence on the single ground that the applicant should be resentenced in light of a new report by a clinical neuropsychologist that the applicant suffered from a major neurocognitive disorder in the form of a traumatic brain injury that was said to have been present but not fully understood or diagnosed at sentence.  The Court held (emphasis added, footnotes omitted):

“… it may be accepted that this Court has drawn ‘no practical distinction’ between fresh and new evidence for the purposes of appeals against sentence. To be accepted the new evidence must demonstrate ‘the true significance of facts in existence at the time of the sentence’.  The sentencing discretion will be reopened if the Court concludes that the new evidence ‘throws significant new light on the pre-existing facts’.  The question becomes whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.”

26. [26]
    In the present case the version of the psychologist’s report dated 25 March 2025 did not track the changes which had been made to its terms, nor did it contain any reference to the fact or nature of the solicitor’s request which had led to a revised version of the report.  The following table shows the changes which were made to the relevant passages.

27. [27]
    When the application first came on for hearing, this Court raised with senior counsel for the applicant the fact that the Court had discerned that the changes which had been made to the wording of the report seemed to reflect, in one respect at least, the psychologist having adopted words very similar to those used by the most recent Victorian case addressing the circumstances in which an analogous report might be admitted.  The Court raised its concerns that an expert would just adopt the words used in a legal test without explanation as to how that occurred and what the expert meant by the use of the words.
28. [28]
    The applicant sought and obtained an adjournment to permit evidence to be placed before the Court as to how the change occurred and its significance to the mind of the psychologist.  When some weeks later the Court reconvened, the applicant sought leave to adduce two further affidavits, one from the solicitor and one from the psychologist.
29. [29]
    Senior counsel had, unremarkably, asked his solicitor to explore the issue raised by the Victorian authorities with the psychologist.  Unfortunately, the third affidavit by the solicitor revealed that the solicitor had done so by an email which merely asked the psychologist to work particular phrases into his conclusions, if they “applied”.  Amongst other things, the email invited the psychologist to use “something like” the following (emphasis in original):

“• the assault has shed new light on the conclusions of the previous report and that his mental health is significant worse than anticipated, borne out by the assault, and that his time will be significantly harder than expected now that this assault has occurred and the better understanding we now have of his illness and that we now, as a result of the assault, have a true sense of his suffering due to his mental health condition.

If you can somehow use these phrases or alike as well as your current conclusion, if applicable, that would be great.”

30. [30]
    To his credit, the affidavit of the solicitor went on to acknowledge that the email should have been phrased differently.  Notwithstanding that acknowledgement, it is appropriate both to record and to explain this Court’s unequivocal condemnation of the way he chose to communicate with the expert.
31. [31]
    We would adopt these two statements of principle by Nichols J in Yelland Security Pty Ltd v Plus Architecture International Pty Ltd concerning the independence expected of expert witnesses (footnotes omitted, emphasis added):^[1]

“Expert evidence upon which parties rely should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.  An expert should then provide independent assistance to the Court and should not assume the role of the advocate. As Lord Wilberforce said in Whitehouse v Jordan, to the extent that expert evidence is not or is not seen to be the uninfluenced product of the expert, it may be not only incorrect but ‘self-defeating’.

…

Whether or not an expert report is the product of an independent exercise of judgment is obviously a factual question; but as Brooking J said in Phosphate Cooperative, while it is impossible to lay down specific rules dealing with communications between the expert and the instructing party, ‘the guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert’.”

32. [32]
    Of course, that is not to say that situations cannot ever arise when a legal practitioner might be involved in the process of recording an expert’s evidence.  Some circumstances might even justify the legal practitioner drafting part of an expert’s report.  Such circumstances should be expected to be rare.  But where they occur, the legal practitioner must pay particularly careful attention not merely to the form of their communications with the expert, but to the substance and effect of those communications.  In New Aim Pty Ltd v Leung (2023) 410 ALR 190 the Full Court of the Federal Court of Australia (Kenny, Moshinsky, Banks-Smith, Thawley and Cheeseman JJ) explained (emphasis added):

“There is not one rule or practice which covers all experts or all situations.  For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report.  The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss.  There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner.  Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report.  For example, there may be physical, language or resource difficulties.  Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is.  Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.”^[2]

33. [33]
    In the present case what was necessary to explore with the psychologist was what, if any, differences the applicant’s evidence about the assault and its sequelae made to the expert opinions which the psychologist had expressed in the report which had been placed before the sentencing judge.  The 20 March version of the supplementary report hinted at the possibility that there might be relevant expert opinion capable of being elicited when it suggested the possibility that the extent of the applicant’s mental health issues “may not have previously been apparent”.  But that topic was not further explored.  Instead, the solicitor did what he plainly should not have done, namely suggested a form of words to the expert, apparently formulated to meet what might be said to be the relevant legal test.  The qualification “if applicable” in the email did not alter the substance and effect of what the solicitor had done.  The fact that he did so and that the expert in substance accepted his suggestions seriously diminishes the confidence which this Court could have that the expert’s views did represent independent expert opinion evidence and not the evidence of someone who (whether consciously or not) was prepared to be used as a proxy advocate.
34. [34]
    There is another obvious vice in the adoption of the suggestion to express the opinion that “new light” had been shed.  The opinion was not admissible expert opinion evidence at all but was rather an expression of the view that a Court might form about relevant expert opinion.  Ultimately what was achieved was the deletion of a phrase which hinted at expert opinion which might have been relevant, the addition of a phrase which was not; and significant damage to the possibility that the Court would attribute weight to the expert’s opinions.
35. [35]
    The affidavit by the psychologist sought to defend the way he changed his 20 March report and to assure the Court that the 25 March report “was a true and accurate reflection of my honest and genuinely held clinical opinion”.  He deposed that he had considered the solicitor’s request to be a request “in relation to specific legal questions to be considered with respect to my opinion in this matter”.  His understanding was that he was being asked whether specific terms and wording would be applied to his opinion and if so whether he could use them in his report.  He would not have changed his report if he had disagreed with the amendments or if the amendment would have had the effect of altering his overall opinion.
36. [36]
    The affidavit did not change the obvious fact that what the psychologist had written was not the uninfluenced product of his own expert opinion.  Nor did it rehabilitate the confidence this Court could have in the views expressed in the 25 March report.
37. [37]
    The psychologist’s affidavit did hint at the possibility, without coming out and saying it, that the new information might have led the psychologist to alter the views he had previously expressed in some way.  The affidavit stated (emphasis added):

“In terms of my view on [the applicant’s] mental health issues, as outlined in my report dated 25 March 2025, I considered several factors, these being: his prior trauma history as reported to me on 9 July 2024; the severity of the violence he experienced on 18 November 2024; and the extent of the post-traumatic stress symptoms he reported to me on 21 February 2025.  In my experience, individuals with a history of trauma often underreport the severity of both their traumatic experiences and the ongoing symptoms that result, particularly when the disclosure of this trauma is very recent.  As such it is not unusual for the true extent of both an historical trauma and the subsequent experience of post-traumatic stress symptoms, to be initially underestimated by an assessing clinician.

In [the applicant’s] case, I now consider that his reluctance and discomfort in disclosing his childhood sexual abuse experiences was a barrier to deeper exploration at the time of my initial assessment, increasing the likelihood that my report dated 9 July 2024 failed to accurately convey the extent and severity of his trauma symptoms.”

38. [38]
    The problem here is that by the use of the vague and imprecise phrase “increasing the likelihood” the psychologist avoided grappling with whether he actually had formed the view that his earlier report had failed accurately to convey the extent and severity of the applicant’s trauma symptoms.  The truth is that the quoted paragraphs neither express the opinion that the original report failed accurately to convey the extent and severity of the mental health conditions which the applicant suffered, nor do they express any expert opinion as to what would an accurate identification of the extent and severity of those conditions have been, if the earlier report was truly inaccurate.

Should leave be given to adduce the further evidence?

39. [39]
    Section 668D(1)(c) of the Criminal Code confers on a person in the applicant’s position a right, with the leave of the Court, to appeal against the sentence passed on his conviction.  Section 668E(3) provides that on an appeal against sentence “the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”  Section 671B empowers the Court “if it thinks it necessary or expedient in the interests of justice” and, amongst other things, to receive other evidence and also to exercise “any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters”, although no sentence may be increased by reason of or in consideration of any evidence that was not given at the trial.^[3]
40. [40]
    The evidence of an assault in prison whilst an applicant is serving his sentence is plainly fresh evidence.^[4]  On the other hand, the proposed expert opinion evidence appears to be a combination of fresh evidence (to the extent it was expert opinion based on post-sentence facts) and new evidence (to the extent that it might have sounded on what was an accurate understanding of the applicant’s mental health condition at time of sentence).
41. [41]
    In R v Maniadis,^[5] this Court concluded that the reception of such evidence by an appellate court in relation to an appeal against sentence would depend on whether, if it were not received, there would be a miscarriage of justice.  Davies JA and Helman J (with whom Fitzgerald P agreed) stated that it would be undesirable to state in advance those matters which, in every case must be proved in order to establish such a miscarriage.  Notwithstanding that caveat, their Honours did observe:

“Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.”

42. [42]
    Relevant principle was further examined in R v Hughes.^[6]  There McMurdo J (as his Honour then was) followed Maniadis in concluding that further evidence might be admitted to avoid a miscarriage of justice in exceptional cases and observed:

“… Accepting that there may be such exceptional cases, they will be very rare, for a number of reasons.  The reasons include the clear need for finality in litigation, the desirability of having the evidence adduced before the primary tribunal of fact and the existence of other remedies in otherwise deserving cases, such as the grant of an exceptional circumstances parole order under s 133 of the Corrective Services Act 2000.  A sentencing hearing is not a rehearsal for another sentence hearing in this Court.

The evidence admitted on appeal in Maniadis went to the facts and circumstances existing at the date of the sentence.  In my view, it should not treated as authority for the admission of evidence of matters arising after the sentence hearing unless that evidence is adduced to prove a fact existing when the sentence was imposed.  Otherwise, the facts would not be relevant to the question of what sentence ‘should have been passed’.  …”^[7]

43. [43]
    Senior counsel for the applicant submitted that the Victorian approach to the same question might be regarded as more prescriptive.  Whether that is so and, if it is, whether this Court should adopt a more prescriptive approach is unnecessary presently to consider.  Our preliminary view, however, is that the constraints on adducing further evidence expressed in the passage from Alessawi quoted at [25] above are entirely consistent with first principle, as explained in Maniadis and in Hughes.  In any event, in the present case the evidence sought to be adduced does not approach the level which it would need to approach in order to be received.
44. [44]
    Psychological evidence was received by the sentencing judge and taken into account in an orthodox way.  Before the sentencing judge that evidence had revealed the nature of the applicant’s mental health conditions; that he had already suffered one serious assault in prison which left him with the same kind of symptoms as those he presently suffers; and that the applicant’s mental health should be regarded as quite fragile.  It permitted the sentencing judge to make the finding that the applicant’s time in custody was likely to be more difficult for him than it might be for others and to take that finding into account.
45. [45]
    The evidence now sought to be adduced – even if we were prepared to attribute weight to the psychologist’s evidence – would merely confirm the accuracy of the psychologist’s previous prediction to the sentencing judge that “…further incarceration will likely add to the length of future treatment required; due to the effects of institutionalisation and [the applicant’s] increased vulnerability to experiencing post-traumatic stress symptoms, as a result of his previous trauma.”  The evidence does not shed any significant new light on the applicant’s mental health at the time of sentencing, nor does it prove any fact existing at the time of sentencing.  It merely confirms the accuracy of the sentencing judge’s finding that the applicant’s time in custody was likely to be more difficult for him than it would be for others.
46. [46]
    The applicant has not persuaded us that, if the proposed evidence were not received, there would be a miscarriage of justice.  We would refuse the application for leave to adduce further evidence and, accordingly, we would refuse the application for leave to appeal against sentence.