R v Finn (No. 2)[2023] QSC 43

9. [9]
   The Psychological Services Unit within QCS coordinates services for prisoners with a high risk of engaging in “chronic self-harming and suicidal behaviours and/or those with other complex behavioural presentations and vulnerabilities”. To date, you have not met the criteria that are necessary for a referral to the Psychological Services Unit.

10. [10]
    I am pleased to see in a recent entry in your prison records that were produced and tendered this morning, that you have not expressed any suicidal ideation. Accepting that you are not a high risk of chronic self-harming or suicide, you do have a chronic mental health condition. Notwithstanding that condition, which is known to QCS, you do not meet the criteria for referral to the Psychological Services Unit.

11. [11]
    You have indicated a willingness to attend a Resilience Program and have been waitlisted for it since 30 September 2022, which is a period of more than five months. Recently, you have indicated your willingness to also participate in a substance misuse program. Because of your past resort to substances you have been prioritised to commence a Medium Intensity Substance Intervention program in April 2023.

Absence of DVA-supplied psychological treatment

12. [12]
    The QCS Pre-Sentence Report states that the Commonwealth Department of Veterans’ Affairs (“DVA”) does not fund external psychological treatment while prisoners are in custody, unless there is no access to mental health support within the custodial environment. Of course, you may, depending on the circumstances, have access to mental health support within prison of the kind that I have mentioned above. Your mental state may be monitored by the Offender Development Team and you may receive certain treatment from Queensland Health’s Prison Mental Health Services, if your mental state requires it.

13. [13]
    Interpreting that QCS Pre-Sentence Report, it seems that the current policy or attitude taken is that DVA does not fund mental health support to veterans at Woodford because there are mental health services at that centre, but you do not qualify for them at this time. In any event, there is no suggestion that Prison Mental Health Services can provide the kind of specialised therapy that is required to treat your complex PTSD. One would have thought that if they could, they would have been providing it to you by now.

14. [14]
    The QCS report advises that on 15 February 2023, QCS met with the DVA:

“… to explore referral pathways for ex-serving ADF personnel to access DVA-funded health services in custody. It was determined that a further meeting would be scheduled with all attendees to work through the relevant referral pathways and processes.”

I trust that the further meetings will expedite service delivery by the DVA to you and other veterans like you who need treatment in custody. Hopefully, the bureaucratic wheels will move quickly so that you and others in your predicament can receive the DVA-funded psychological treatment you require in custody. Your treatment should not have to await a lengthy process or the outcome of a Commonwealth Royal Commission.

15. [15]
    In the meantime, and depending upon the correctional centre in which you are accommodated, your treating psychologist, Ms Smith, may not be able to visit you in person due to travel time constraints. You might request a transfer to an alternative high security facility, such as Borallon Training and Correctional Centre, which may be more convenient for Ms Smith to visit. If logistics and time preclude Ms Smith from attending in person, and if the shortcomings in video-conferencing do not permit her to deliver the specialised treatment by video, then the specialised treatment would need to be provided by someone else with her expertise. It is not apparent that such a provider is available to do so and neither the DVA nor QCS have arranged for you to receive that kind of specialised treatment whilst in custody these many months.

16. [16]
    Ms Smith, in her report dated 1 February 2023 and in a Timeline document which I made exhibit 20 today, gave her account of issues in your not receiving proper psychological treatment. She reports on process issues in your not being able to access treatment and what she says was a lack of response to requests to facilitate this. I have regard to the documents that became exhibit 16 and 17. On 28 October 2022 you wrote to QCS about providing the relevant documents and requirements for ongoing treatment with Ms Smith. There seems to have been some delay. I am not asked to, and not in a position to, resolve the issues with accessing treatment from Ms Smith. There is no evidence contradicting her professional assessment that you require treatment for your war-caused, complex PTSD.

Overview of present circumstances and circumstances for the foreseeable future

17. [17]
    The QCS Pre-Sentence Report and the material produced and tendered today enable me to make a more informed assessment of your anticipated incarceration for the foreseeable future, including the period of at least 12 months during which you must remain in actual custody.

18. [18]
    Presently, you do not report acute mental health concerns, and are waitlisted for some programs about resilience and substance abuse. However, you need specialised treatment for your complex, war-caused PTSD.

19. [19]
    Potentially, you are able to access the specialised psychological services provided by QCS’ Psychological Services Unit, but presently do not meet the criteria for a referral to that unit despite your diagnosed and well-documented complex, war-caused PTSD. Recently, you have been referred to Queensland Health’s Prison Mental Health Services for assessment, but, in the absence of an acute mental health episode, are unlikely to receive the specialised psychological treatment you require from it. Like any health service, it must prioritise its limited resources to individuals with the most acute mental health conditions, who pose a risk to themselves or others.

20. [20]
    Due to the absence of DVA-funded external psychological treatment, you do not have access to the kind of mental health support that you might obtain from Ms Smith or other specialists. The DVA and QCS may work out a program to deliver services to veterans who are in custody, but there is no indication when this might ever occur.

21. [21]
    In the circumstances, your incarceration has, and will for the foreseeable future, be more harsh than a given sentence would be on a person in normal mental health. This is a matter which is relevant to sentencing and favours some mitigation of punishment.^[6]

22. [22]
    In addition, the harshness of the general conditions in which you are incarcerated, particularly being required to share a cell in a maximum security prison, has and will weigh more heavily on you than imprisonment in a correctional centre that is not overcrowded.^[7]

Structure of sentence

23. [23]
    An appropriate structure is to impose a head sentence on the trafficking count (count 2 on the original indictment), and a concurrent sentence that must be at least 12 months for the weapons offence charged on the ex officio indictment.

24. [24]
    The head sentence that is imposed on the trafficking count should reflect the overall criminality for all of the offences to which you are to be sentenced.^[8]
25. [25]
    In arriving at an appropriate head sentence, I have regard to what may have been concurrent sentences for the other offences to which you have pleaded guilty.

The trafficking offence

26. [26]
    R v Bradforth ^[9] confirms that major determinants in trafficking cases include the type of drug supplied, the quantity of drugs, their value, the nature of the business, and whether activities were purely commercial or were engaged in to feed a habit. The trafficking period also is relevant.

27. [27]
    Here, the trafficking period was seven weeks, which is relatively short compared to some of the comparable cases to which I was taken. Nevertheless, sentences of at least four years are often imposed for trafficking over such a period, or even a shorter period, depending upon the intensity of the trafficking.

28. [28]
    You trafficked in methylamphetamine and GHB. I have summarised your conduct at [49]-[53] of my earlier reasons. Although you were in receipt of a pension at the time, your dealing in drugs was to feed your drug addiction. It is unclear what paper profit you may have derived. As previously noted, at the end of the trafficking period you were owed approximately $36,000 in drug debts.

29. [29]
    The learned Crown prosecutor noted the seizures of “not insignificant quantities” during the period and that this case is not at the “lowest level of street-level trafficking that the court sees”. The Crown submitted that this placed the matter in the four to five year range of imprisonment for trafficking.

30. [30]
    Defence counsel cited various authorities and contended for a sentence of four years.

31. [31]
    I consider that a sentence of four years would be an appropriate one for the offence of trafficking and the other offences that form part of the trafficking, before any moderation to take account of the mental health condition that triggered your offending, the harshness of your incarceration due to that condition, and the harsh circumstances in which you have been and will be incarcerated for the foreseeable future, while suffering war-caused PTSD.

32. [32]
    While those matters favour mitigation, a notional four-year sentence is the starting point in arriving at a head sentence that reflects your overall criminality.

Other offending

33. [33]
    Mr Cook submitted that count 1 on the indictment (an offer to supply 5.25 grams of methylamphetamine for $1300 on 25 June 2021) would ordinarily attract a sentence of nine months imprisonment.  I agree.

34. [34]
    Counts 3, 4 and 5 on the indictment concern conduct that was associated with the trafficking (count 3 possession of methylamphetamine) or the possession of other drugs for personal use. I take them into account in arriving at the head sentence on count 2.

35. [35]
    Similarly, I take into account the numerous summary offences in arriving at the head sentence. Convictions will be recorded on counts 1, 3, 4 and 5 of the indictment, and on all of the summary offences, with no further penalty.

36. [36]
    The unlawful possession of a revolver on 28 August 2022 is not part of the trafficking. It was not contended by the Crown that the possession of the revolver was to facilitate drug dealing by you. Had it been, the concurrent sentence that I impose, and the head sentence, would have been much higher.

37. [37]
    As I told you during the sentencing hearing on 2 February 2023, weapons are a scourge on our society. The seriousness of the weapons offence is reflected in the maximum penalty of seven years and the requirement to serve a minimum of one year of imprisonment served wholly in a corrective services facility for that offence.

38. [38]
    I find that you possessed the weapon as a consequence of your complex mental health condition, which had reached the point where you felt so unsafe that, like some other veterans with that condition, you felt you had to protect yourself by carrying a weapon. That makes your offending less serious than carrying a weapon to facilitate drug dealing or to protect drugs held in one’s possession. Still, such conduct must be denounced and punished. Only individuals who are authorised by law to have such weapons in public should do so. Even law-abiding people who are concerned about their personal safety should never have such a weapon in a public place. Doing so invites disaster and tragedy. The very last person who should ever have such a weapon is a drug user.

39. [39]
    Mr Cook contended for a concurrent sentence of 18 months imprisonment. It would be open to me to impose a sentence of two years for this offence, after taking into account your mitigating circumstances. However, a sentence of 18 months imprisonment is appropriate in all the circumstances, and as indicated, it will be served concurrently.

Suspended sentence breach

40. [40]
    The weapons offence and some of the summary offences breach the suspended term of imprisonment of three months that was imposed by the Wynnum Magistrates Court on 14 January 2022. It is not unjust to activate that sentence and it will be served concurrently with the other sentences that I impose.

Automatic cancellation of parole

41. [41]
    I have regard to the fact that certain offences were committed while you were on parole, and that a sentence of actual imprisonment will result in the parole order being automatically cancelled, pursuant to ss 209 and 211 of the Corrective Services Act 2006. This exposes you to an additional period of custody.

An appropriate head sentence

42. [42]
    The additional criminality for which you must be punished that falls outside your trafficking would warrant a head sentence of five years or more on count 2, before regard is had to matters in mitigation, including the mitigating effect of your past and ongoing mental health conditions and their effect upon the harshness of your past and future incarceration. In accordance with the principles discussed at [82] of my previous reasons, the fact that your offending was the product of your war-caused PTSD affects the punishment that is just in all the circumstances, and the elements of denunciation and general deterrence should be moderated to some extent. However, there remains a need for a sentence that punishes, denounces and deters others from committing the same or a similar offence.

43. [43]
    A head sentence that begins today gives you the benefit of partial concurrency of a period of a little over four months, until the expiry of your current sentence. However, you will not gain the benefit of having the period of 194 days spent in pre-sentence custody between 28 August 2022 and 9 March 2023 declared under section 159A of the Penalties and Sentences Act 1992, and, as noted, you may be required to serve an additional part of your current sentence in actual custody.

44. [44]
    Although I will not declare the recent period of approximately six-and-a-half months that you have served as pre-sentence custody, it is agreed that I should take it into account, and I have done so in arriving at an appropriate head sentence. That period of about six-and-a-half months was served, in part, because of the offences for which you were sentenced in the District Court on 21 October 2021, and also because of the offending for which I am sentencing you. It was your possession of a loaded weapon that prompted your return to custody.

45. [45]
    Having regard to both aggravating and mitigating circumstances, an appropriate head sentence is one of four years imprisonment.

Parole eligibility

46. [46]
    A sentence of that duration requires a parole eligibility date. Any sentence of more than three years or more cannot attract a parole release date.

47. [47]
    I should take into account the recent, undeclared period of about six-and-a-half months in arriving at a parole eligibility date. I take into account your early or timely pleas of guilt in fixing a parole eligibility date. Those pleas should be recognised, in accordance with established practice, by a starting point for parole eligibility after one-third. The pre-sentence custody that is not declared, your rehabilitation whilst in custody, your prospects of returning to a law-abiding and productive life if your rehabilitation is not unduly prejudiced by your remaining time in custody, the harshness of the circumstances in which you have been and will be incarcerated, and the other mitigating circumstances to which I have referred, lead me to fix a parole eligibility date after serving 12 months of additional custody under the sentences that I will impose. I will declare the 50 days spent in pre-sentence custody between 7 September 2021 and 26 October 2021, as time served under the sentences that I impose. This leads me to fix a parole eligibility date of 19 January 2024.

Sentences and orders

48. [48]
    I find that you have been convicted of an offence punishable by imprisonment during the operational period of a suspended sentence of three months imposed at the Wynnum Magistrates Court on 14 January 2022, and order that you serve the whole of the suspended imprisonment.

49. [49]
    On count 2 of indictment number 1263 of 2022 (trafficking in dangerous drugs), you are sentenced to a concurrent term of imprisonment of four years.

50. [50]
    Convictions are recorded on each of the other counts on that indictment, with no further penalty.

51. [51]
    Convictions are recorded on each of the summary offences, with no further penalty.

52. [52]
    On the single-count ex officio indictment (unlawful possession of a Category H weapon in a public place), you are sentenced to a concurrent term of imprisonment of 18 months.

53. [53]
    The period of 50 days spent in pre-sentence custody between 7 September 2021 and 26 October 2021 is declared pursuant to section 159A as pre-sentence custody, and is deemed to be time served under the above concurrent sentences.

54. [54]
    The period of 194 days spent in pre-sentence custody between 28 August 2022 and 9 March 2023 is not declared pursuant to section 159A as pre-sentence custody.

55. [55]
    I order that you be eligible for parole on 19 January 2024.