R v Adam

Case [2022] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Adam [2022] QCA 41

PARTIES:

R
v
ADAM, Jake Gregory
(applicant)

FILE NO/S:

CA No 264 of 2021
DC No 464 of 2021
DC No 1781 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 21 September 2021 (Cash QC DCJ)

DELIVERED ON:

1 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2022

JUDGES:

Sofronoff P and Mullins JA and Kelly J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – MENTAL DISORDER – where the applicant pleaded guilty to having dangerously operated a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance – where the applicant was diagnosed as suffering from depression and personality disorders – whether regard to the applicant’s intoxication was excluded by s 9(9A) of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge failed to consider the reduction in moral culpability and eliminate general and specific deterrence as sentencing considerations

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was 24 years old at the time of the offending – where the applicant returned a blood alcohol reading of 0.147 – where the applicant had a previous episode of drink driving when they were 22 years old, returning a blood alcohol reading of 0.1 – whether the sentence imposed by the sentencing judge was manifestly excessive in the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(9A)
Safe Night Out Legislation Amendment Act 2014 (Qld), s 84

R v Barker[2013] QCA 340, considered
R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, applied
R v Burnett-Greenland [2017] QCA 159, considered
R v Clark [2009] QCA 361, considered
R v Dwyer[2008] QCA 117, cited
R v Goodger[2009] QCA 377, considered
R v Graham[2012] QCA 15, considered
R v Haack; Ex parte Attorney-General (Qld)[1999] QCA 76, considered
R v Kevich [1977] VicSC 619, considered
R v McGuire; Ex parte Attorney-General (Qld)[2002] QCA 439, considered
R v Neto[2016] QCA 217, cited
R v O’Connor (1980) 146 CLR 64; [1980] HCA 17, considered
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677; [1994] QCA 488, applied
R v Tsiaris [1996] 1 VR 398; [1996] VicRp 26, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered
R v Wickett[2003] QCA 57, considered
R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited

COUNSEL:

S J Hedge for the applicant
N E Friedewald for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of…

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Details
AGLC
R v Adam [2022] QCA 41
Case
[2022] QCA 41
Decision Date

CaseChat Overview and Summary

In the case of R v Adam, the applicant appealed against his sentence on two grounds. Firstly, the applicant contended that the sentencing judge failed to consider the reduction in moral culpability and moderate or eliminate general and specific deterrence as sentencing considerations due to the applicant's mental conditions. Secondly, the applicant argued that the sentence imposed by the sentencing judge was manifestly excessive.

The applicant pleaded guilty to having dangerously operated a vehicle causing grievous bodily harm while adversely affected by an intoxicating substance. He was diagnosed as suffering from depression and personality disorders. The applicant argued that his mental conditions reduced his moral culpability and that the sentencing judge failed to consider this reduction and eliminate general and specific deterrence as sentencing considerations. The applicant also argued that the sentence imposed was manifestly excessive in the circumstances.

The court held that the applicant's mental conditions were not relevant factors to be considered in determining the sentence. The court found that the sentencing judge had considered the applicant's mental conditions and had appropriately weighed them in the sentencing decision. The court also found that the sentence imposed was not manifestly excessive, as the applicant had a previous episode of drink driving and had returned a blood alcohol reading of 0.147 at the time of the offending.

The application for leave to appeal against sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The applicant was sentenced by reference to a statement of facts and he relied upon a report of a forensic psychologist which relevantly diagnosed the applicant as suffering from depression and personality disorders. The applicant seeks leave to appeal against sentence on two grounds. The first ground is that the learned sentencing judge failed to consider the reduction in moral culpability, and moderate or eliminate general and specific deterrence as sentencing considerations, by reason of the applicant’s mental conditions. The second ground is that the sentence was manifestly excessive.Background facts The offending occurred on 15 June 2019 when the applicant was 24 years of age. He had spent the day at his house drinking with his friend, the complainant. In the late afternoon, the pair travelled in an Uber to a local bar where they ate and drank cocktails before returning to the house. The complainant fell asleep there but was later woken by the applicant and they moved to the garage to listen to music which was being played from the applicant’s father’s car. After the battery in that car went flat, jumper leads were connected to it and the battery in the applicant’s car. As the flat battery charged, the pair sat in the applicant’s car, the applicant in the driver’s seat and the complainant in the passenger’s seat. At about 9.00 pm, the applicant disconnected the jumper leads and returned to the driver’s seat of his car. He reversed onto a public road and started driving at an excessive speed which caused the complainant to yell at him to stop. The applicant performed a turn at a roundabout and started driving back in the direction of the house. The applicant drove the car at speed towards an intersection. A car pulled out of a side street and was hit by the applicant’s car. The collision caused the applicant’s car to hit a parked car. The applicant and the complainant were found lying on the road about one metre from the applicant’s car. The applicant had driven approximately 2.1 kilometres. The complainant was taken to hospital and presented with injuries including tenderness to the spine, undisplaced fractures of his ribs, a right ear laceration and a left lateral elbow laceration (approximately four centimetres) with degloving of surrounding tissue. He was admitted and received an anaesthetic spinal block to control the pain and assist with his breathing. The complainant underwent surgery involving a washout of the elbow, debridement and exploration. He spent six days in hospital. The injury to the elbow amounted to grievous bodily harm and, if left untreated, would likely have caused permanent reduction in strength and movement to the elbow joint. The applicant also suffered injuries in the accident and was taken to hospital. His injuries were too serious to allow a roadside breath test. Police later attended the hospital and obtained a blood sample from the applicant which revealed a blood alcohol level of 0.147 per cent. On 13 November 2019, the applicant attended a police station and took part in a recorded interview. He did not have any memory of the night of the offending.The applicant’s personal history

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In the context of dealing with the diagnosed personality disorders, the psychologist’s report contained the following conclusions:“There are indications of features or aspects of underlying personality disorders that are reasonably concluded as having severely impacted [the applicant’s] mental health.6.7.1 Separation Anxiety DisorderThe first disorder is the Separation Anxiety Disorder… consistent with his mother forcing him and his father out of the family home after many years of his exposure to her physical and verbal violence. There were quite substantial… cognitive and emotional developmental impacts due to his young age.…6.7.2 Borderline Personality DisorderBPD is one of the more difficult conditions to manage and the complications for sufferers have been recognized for some time.…Significant aspects or features of the condition include impaired self-concept (identity problems), negative relationships and potential for self-harm (reckless behaviours etc, as noted above).…There is clear indication in [the applicant’s] antecedents to support the conclusion that the evidently dysfunctional relationship generated by his mother’s verbal and physical violence has severely impacted her son’s mental health during infancy and early adolescence. It still has an effect on his adult mental health profile …The critical presence of these conditions in your client’s profile, are considered to be the substantive causes for his use of drugs and alcohol in self-medicating to manage the resultant depression and anxiety.” At its conclusion, the psychologist’s report contained the following statements:“[The applicant] clearly recognised and accepted the seriousness of his conduct and has taken steps to rehabilitate over the almost two years since the incident. However, his mental health condition must be considered as most fragile.It is respectfully submitted for the Court’s consideration that, given the conditions that existed within the family environment, contributory and largely causal of his offending, if a custodial sentence were to be imposed it would severely impact his future mental health and negate any progress to date.It is this writer’s professional opinion that [the applicant] is able to rehabilitate in the community with a low risk of similar reoffending, given his progress with therapy. He has previously been a positive contributor to the community and is currently a carer for his father whose mental health has also been badly effected by the same familial conditions”.The sentencing hearing Before the sentencing judge, it was accepted that the applicant had made a timely plea of guilty. The applicant submitted, and it was not seriously disputed, that the offending involved a lower level of grievous bodily harm. There was no real dispute that a head sentence in the order of three years’ imprisonment would be appropriate. The Crown contended for such a sentence and the applicant’s counsel materially submitted that he “[did not] cavil with a sentence of up to three years”. The real dispute, and the focus at the sentencing hearing, concerned whether the applicant should spend time in custody. The Crown submitted that, to give effect to the early plea of guilty and the other matters in the applicant’s favour, the sentence should be structured to provide for the applicant’s release on parole after one third of a three years’ head sentence. The applicant’s counsel submitted that the applicant should be immediately released on parole. As has been noted, the sentence ultimately imposed was three years’ imprisonment with a parole release date set after the applicant had spent nine months in custody.