R v CCA - [2018] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCA [2018] QCA 82

PARTIES:

R
v
CCA
(applicant)

FILE NO/S:

CA No 95 of 2017
SC No 792 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 April 2017 (Martin J)

DELIVERED ON:

4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2018

JUDGES:

Gotterson and Philippides JJA and Mullins J

ORDERS:

1.   Admit into evidence the affidavits of the applicant sworn on 17 July 2017 and 6 March 2018 and affidavit of Basil Karsas sworn on 12 March 2018.

2.   Grant leave to appeal against sentence.

3.   Allow the appeal.

4.   Vary the sentences under appeal by deleting 4 April 2019 as the appellant’s parole eligibility date and substituting for it 4 December 2018.

5.   The sentences are otherwise affirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant was convicted of four drug-related offences – where the applicant was sentenced to six years’ imprisonment with parole eligibility after two years – where the applicant was raped by another prisoner while he was in custody before his sentencing hearing – where the applicant did not tell his legal representatives that he had been raped – where the sentencing judge did not know of, and therefore did not take into account, the rape and its physical impacts on the applicant – where the applicant sought to adduce evidence of the rape, its immediate physical impacts on him, and his reasons for non-disclosure – whether evidence of the applicant’s rape, its immediate physical consequences, and his reasons for non-disclosure should be admitted – whether the applicant’s parole eligibility date should be brought forward

R v Clark[2017] QCA 318, followed
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered
R v Spina[2012] QCA 179, considered

COUNSEL:

A Hoare for the applicant
D Nardone for the respondent

SOLICITORS:

Karsas Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 23 March 2017, the applicant, CCA, who was legally represented, pleaded guilty in the Supreme Court at Brisbane to four drug-related offences, the most serious of which was trafficking in dangerous drugs over a period of about nine months ending on 29 May 2015 (Count 1). The drugs included methylamphetamine, cocaine, cannabis, and a derivative, 5-Methoxy-N, N‑methylisopropyltryptamine. The last mentioned is supplied in the form of pills and is commonly referred to as “bricks”.
The other offences were all committed on 28 May 2015. They were unlawful possession of the dangerous drug methylamphetamine in a quantity exceeding 200 grams (Count 2); unlawful possession of the dangerous drug cannabis in a quantity exceeding 500 grams (Count 3); and possession of communications equipment and vehicles used in connection with the trafficking (Count 4).
The applicant was sentenced on 4 April 2017. For…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v CCA

Details

AGLC: R v CCA [2018] QCA 82
Case: [2018] QCA 82
Decision Date: 4 May 2018

CaseChat Overview and Summary

The case of R v CCA involved the applicant appealing against his sentence for four drug-related offences. The applicant had been sentenced to six years' imprisonment, with parole eligibility after two years. The applicant had been incarcerated prior to his sentencing hearing and had been raped by another prisoner. He did not disclose this incident to his legal representatives or the sentencing judge, who was therefore unaware of the assault and its impacts on the applicant. The applicant sought to present evidence of the rape, its immediate physical effects on him, and his reasons for not disclosing it. The appeal raised the question of whether this evidence should be admitted and, if so, whether the parole eligibility date should be adjusted accordingly.

The court considered the significance of the undisclosed rape and its effects on the applicant's mental health. The applicant's affidavit described the assault in detail and explained his immediate physical and emotional responses. Dr Butler's supplementary report, based on the new information, suggested that the applicant likely suffered from an acute stress disorder that transitioned into a post-traumatic stress disorder. This condition would have complicated his depressive symptoms and increased the risk of his mental health deteriorating while in custody. The court recognised the importance of considering these factors, which were not known to the sentencing judge, in determining an appropriate sentence.

In light of the new evidence, the court admitted the applicant's affidavits and the affidavit of Basil Karsas. The court granted leave to appeal against the sentence and allowed the appeal. The court varied the sentences by changing the parole eligibility date from 4 April 2019 to 4 December 2018. The court emphasised the importance of considering the full circumstances of the applicant's case, including the previously undisclosed rape and its impacts, in determining the appropriate sentence.

The final orders of the court included admitting the new evidence, granting leave to appeal against the sentence, allowing the appeal, and varying the parole eligibility date. The court affirmed the rest of the sentences. This decision underscores the importance of considering all relevant factors, including previously undisclosed incidents, in sentencing and the potential for appellate courts to adjust sentences based on new evidence.

Orders

Orders of the court

1. Admit into evidence the affidavits of the applicant sworn on 17 July 2017 and 6 March 2018 and affidavit of Basil Karsas sworn on 12 March 2018.

2. Grant leave to appeal against sentence.

3. Allow the appeal.

4. Vary the sentences under appeal by deleting 4 April 2019 as the appellant’s parole eligibility date and substituting for it 4 December 2018.

5. The sentences are otherwise affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The learned sentencing judge took note of favourable references given for the applicant and regarded him as having good prospects of rehabilitation given his negative drug test screens.[11] His Honour also made particular allowance for the applicant’s time in custody, his early plea and his cooperation.[12][11]Ibid ll39-47.[12]AB33: Tr5 ll1-2.The evidence sought to be adduced In his handwritten affidavit, the applicant spoke of an event that happened when he was on remand in the Capricornia Correctional Centre on 4 November 2015. He did not disclose it to his then legal representatives prior to or during the sentence hearing. Nor had he disclosed it to Dr Butler or Dr Rofe. The learned sentencing judge was therefore unaware of it. The event, as described by the applicant, happened just after lunch when he went to the toilet to urinate. He washed his hands and as he opened the door to leave, a fellow inmate pushed him inside and locked the door. It was the same person who had hit him the day before for being depressed. He told the applicant to be quiet. Then he pulled a tiny syringe from the top of his pants and started to wave it about. The applicant became scared. The person told him that if he screamed or struggled he would be injected with the syringe. The applicant had no idea what was going on. He begged the person not to harm him and offered him money or shoes. The person told the applicant to turn around and to pull down his pants. The applicant refused to do so. The person pulled them down and then pushed the applicant into the wall. He held the applicant against the wall by his neck. The applicant felt the person’s erect penis rub up and down his buttocks. Next he felt it penetrate his anus. The applicant felt extreme pain. The penetration continued for several minutes until the person ejaculated into his rectum. The person withdrew and left the toilet straightaway. The applicant began to cry. Next, he heard a “cell access” call to which he reacted by wiping himself and going straight upstairs to his cell. He stripped off and then sat in the shower and cried for several hours. In his addendum affidavit, the applicant relates that once he had pleaded guilty, he was placed on remand at the Brisbane watch house pending sentence. He immediately started suffering symptoms and flashbacks of the sexual assault. He became fearful. During an induction at the Brisbane Correctional Centre on 30 March 2017 he was asked if he had ever been sexually assaulted. He answered that he had been. That was the first time that he had told anyone about being raped in prison. After he had been sentenced, the applicant was transferred to the Woodford Correctional Centre on 12 May 2017 and then to the Palen Creek Correctional Centre on 6 June 2017. He discussed the sexual assault with the prison psychologist on 15 August 2017. The general manager at the centre has been sympathetic to his situation and has made allowances for his toilet use. Dr Butler was supplied with the applicant’s handwritten affidavit. In light of the information in it, he reviewed his diagnostic formulation of the applicant’s condition and concluded as follows:“In my opinion, the context of the alleged assault and [the applicant’s] reported reaction are suggestive of his having suffered a post trauma syndrome after the assault and that he more than likely was suffering from an acute stress disorder which transitioned into a post-traumatic stress disorder. I am unable to unequivocally diagnose a post-traumatic stress disorder as I have not interviewed [the applicant] again and do not have access to any prison mental health notes pertaining to the incident.Nevertheless, I believe I am able to opine that, more than likely, some of the anxiety symptoms [the applicant] described to me during my assessment in November 2016, reflected the direct effects of his alleged assault and that this would have complicated and worsened his depressive phenomena.In particular, I believe that such a trauma would markedly increase the risk of [the applicant’s] mental health deteriorating and remaining resistant to standard pharmacological treatment whilst in custody. Even appropriate psychological interventions may have limited utility if he were exposed to recurring triggers in prison. His report of the incident suggests that such triggering would be unavoidable. Also, if he is still symptomatic, I believe the risk of his developing a chronic post trauma disorder is increased by the presence of significant premorbid depression and anxiety.Therefore I believe that, contingent upon any ongoing contemporaneous reports from prison mental health, [the applicant] is more than likely to require intensive psychological treatment, regular review of his mental state, and assertive monitoring of any suicidal ideation.If he has continued to be significantly symptomatic, I believe that external treatment of his condition may be required and that this may need to be predicated upon his being placed in a custodial environment where the risk of re-traumatisation is significantly diminished and where he is not exposed to debilitating psychological triggers.Additionally, a further review by prison mental health of his psychiatric morbidity and attendant risks may support the option of [the applicant] being availed of early parole so as to reduce the risk of his depression and anxiety becoming intractable and severe.”Reasons for non-disclosure prior to sentence

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CCA [2018] QCA 82
PARTIES:	R v CCA (applicant)
FILE NO/S:	CA No 95 of 2017 SC No 792 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 4 April 2017 (Martin J)
DELIVERED ON:	4 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2018
JUDGES:	Gotterson and Philippides JJA and Mullins J
ORDERS:	1. Admit into evidence the affidavits of the applicant sworn on 17 July 2017 and 6 March 2018 and affidavit of Basil Karsas sworn on 12 March 2018. 2. Grant leave to appeal against sentence. 3. Allow the appeal. 4. Vary the sentences under appeal by deleting 4 April 2019 as the appellant’s parole eligibility date and substituting for it 4 December 2018. 5. The sentences are otherwise affirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant was convicted of four drug-related offences – where the applicant was sentenced to six years’ imprisonment with parole eligibility after two years – where the applicant was raped by another prisoner while he was in custody before his sentencing hearing – where the applicant did not tell his legal representatives that he had been raped – where the sentencing judge did not know of, and therefore did not take into account, the rape and its physical impacts on the applicant – where the applicant sought to adduce evidence of the rape, its immediate physical impacts on him, and his reasons for non-disclosure – whether evidence of the applicant’s rape, its immediate physical consequences, and his reasons for non-disclosure should be admitted – whether the applicant’s parole eligibility date should be brought forward R v Clark[2017] QCA 318, followed R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered R v Spina[2012] QCA 179, considered
COUNSEL:	A Hoare for the applicant D Nardone for the respondent
SOLICITORS:	Karsas Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent