R v Clark

Case [2017] QCA 318

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clark [2017] QCA 318

PARTIES:

R
v
CLARK, Robert John
(applicant)

FILE NO/S:

CA No 159 of 2017
DC No 385 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application to adduce further evidence

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 19 June 2017 (Lynham DCJ)

DELIVERED ON:

Orders delivered ex tempore on 8 November 2017
Reasons delivered 22 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2017

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

Orders delivered ex tempore 8 November 2017:

1.   Grant the application to adduce the evidence in the affidavits of Robert John Clark filed 9 October 2017, Robert Zermaitis filed 9 October 2017 and Andrew Peel filed 26 October 2017.

2.   Grant the application for leave to appeal against sentence.

3.   Allow the appeal.

4.   Vary the sentence imposed on 19 June 2017 by ordering that it be suspended forthwith.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to one count of fraud in excess of $30,000 – where the applicant used the credit card of the complainant, who was his housemate, while the complainant was deployed overseas to Afghanistan – where the sentencing judge characterised the applicant’s fraudulent conduct not as motivated by need but was to enable him to live a better life – where the applicant sought to adduce further evidence in the form of an affidavit of his psychologist – where the psychologist opined that the applicant was suffering from untreated post-traumatic stress disorder caused by his military service in East Timor at the time of his offending – where the applicant deposed to using alcohol to self-medicate to help him cope with his symptoms – where no evidence of the applicant’s mental disorder was before the sentencing judge as a result of the applicant being unable to afford a psychological assessment – whether the sentencing discretion should be re-exercised to take account of the applicant’s mental disorder as detailed in the further evidence

R v Jeffree[2010] QCA 47, considered
R v La Rosa; Ex parte Attorney-General (Qld)[2006] QCA 19, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied
R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, applied
R v Miles[2006] QCA 556, considered
R v Parish (2012) 223 A Crim R 1; [2012] QCA 112, considered
R v Robinson; Ex parte Attorney-General (Qld)[2004] QCA 169, considered
R v Spina[2012] QCA 179, applied
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, applied

COUNSEL:

J Greggery for the applicant
M T Whitbread for the respondent

SOLICITORS:

Purcell Taylor for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Philippides JA.

  2. PHILIPPIDES JA:

Continue reading R v Clark

Sign in free to access the full text

Details
AGLC
R v Clark [2017] QCA 318
Case
[2017] QCA 318
Decision Date

CaseChat Overview and Summary

The applicant in this case pleaded guilty to fraud amounting to more than $30,000, committed by using the credit card of his housemate, a soldier deployed in Afghanistan, from August 2009 to February 2010. He was sentenced to imprisonment, suspended after nine months, for an operational period of three years. The applicant sought to appeal the sentence on the grounds that it was manifestly excessive, and sought leave to adduce further evidence of his mental health issues, including a diagnosis of post-traumatic stress disorder (PTSD), which had not been before the sentencing judge. The central legal issues were whether the further evidence was fresh and, if so, whether its admission would result in a miscarriage of justice.

The court recognised that the evidence was not strictly fresh, but found that it could still be admitted under a residual discretion in exceptional circumstances where refusal to admit it would result in a miscarriage of justice. The court found that the evidence was relevant and credible, and that the applicant's PTSD was a significant mitigating factor that had not been before the sentencing judge. The court found that the sentence imposed was manifestly excessive, and varied it to be suspended forthwith. The court granted leave to appeal and allowed the appeal, varying the sentence as noted.

Orders

Orders of the court

Orders delivered ex tempore 8 November 2017:

1. Grant the application to adduce the evidence in the affidavits of Robert John Clark filed 9 October 2017, Robert Zermaitis filed 9 October 2017 and Andrew Peel filed 26 October 2017.

2. Grant the application for leave to appeal against sentence.

3. Allow the appeal.

4. Vary the sentence imposed on 19 June 2017 by ordering that it be suspended forthwith.

Background

Background to the litigation

My reasons for joining in the making of the orders follow.Background The applicant pleaded guilty to one count of fraud in excess of $30,000 ($43,789.05) between 16 August 2009 and 5 February 2010. He was sentenced on 19 June 2017 to two years and six months’ imprisonment, to be suspended after serving nine months for an operational period of three years. One day of pre-sentence custody was declared as time served under the sentence. The circumstances of the offending were, that during that period, the applicant used the credit card of the complainant, his housemate, for some 140 transactions for his own purposes. The offending occurred while his housemate, a soldier, was deployed overseas in Afghanistan and was not discovered until 2 March 2010, shortly after the complainant’s return from Afghanistan. In sentencing the applicant, the sentencing judge characterised the applicant’s fraudulent conduct as “not motivated by what is sometimes described as need” but seemingly “to enable [him] to live a better lifestyle”. The applicant sought leave to adduce further evidence in support of his application for leave to appeal the sentence. It was submitted that the further evidence revealed that the sentence imposed was manifestly excessive. The applicant’s submission was that the sentence should be suspended after serving 141 days, that is, immediately from the date of the hearing of the appeal.The application to adduce further evidence The applicant’s application for leave to adduce further evidence concerned the affidavits of Robert John Clark filed 9 October 2017, Robert Zemaitis, a psychologist, filed 9 October 2017 and Andrew Peel filed 26 October 2017.The further evidence The report of Mr Zemaitis, which was annexed to his affidavit, was obtained after the applicant was sentenced. In his report, Mr Zemaitis diagnosed the applicant’s psychological state at the time of the sentence and at the time of the commission of the offence. Mr Zemaitis’ report was compiled after having assessed the applicant at the Lotus Glen Correctional Centre, including taking a detailed history and conducting a Trauma Symptom Inventory. He also obtained further information from the applicant’s family, a close friend and a work supervisor. It was not disputed that the information conveyed to Mr Zemaitis relating to the factual matters in the report were true and correct. In his report, Mr Zemaitis provided his professional opinion that the applicant suffered from Post-Traumatic Stress Disorder (PTSD) at the time of his offending, which was chronic in nature and arose from his experiences in East Timor in 2007. In particular, he opined that the applicant was suffering from classical symptoms consistent with a diagnosis of chronic PTSD, which resulted from the applicant’s service in East Timor and had remained untreated. The applicant reported to Mr Zemaitis that he tried to drink to become so drunk that he passed out because he “didn’t want to remember [his] memories of East Timor”. Mr Zemaitis referred to the relationship between the applicant’s mental disorder and his offending by observing that the offending involved having spent about $30,000 on the purchase of alcohol. Mr Zemaitis opined that for a lengthy period and particularly leading up to the period of his offending behaviour between 16 August 2009 and 5 February 2010, the applicant used alcohol to self-medicate and to help him to cope with his PTSD symptoms.

Evidence

Evidence Before The Court

The applicant’s application for leave to adduce further evidence concerned the affidavits of Robert John Clark filed 9 October 2017, Robert Zemaitis, a psychologist, filed 9 October 2017 and Andrew Peel filed 26 October 2017.The further evidence The report of Mr Zemaitis, which was annexed to his affidavit, was obtained after the applicant was sentenced. In his report, Mr Zemaitis diagnosed the applicant’s psychological state at the time of the sentence and at the time of the commission of the offence. Mr Zemaitis’ report was compiled after having assessed the applicant at the Lotus Glen Correctional Centre, including taking a detailed history and conducting a Trauma Symptom Inventory. He also obtained further information from the applicant’s family, a close friend and a work supervisor. It was not disputed that the information conveyed to Mr Zemaitis relating to the factual matters in the report were true and correct. In his report, Mr Zemaitis provided his professional opinion that the applicant suffered from Post-Traumatic Stress Disorder (PTSD) at the time of his offending, which was chronic in nature and arose from his experiences in East Timor in 2007. In particular, he opined that the applicant was suffering from classical symptoms consistent with a diagnosis of chronic PTSD, which resulted from the applicant’s service in East Timor and had remained untreated. The applicant reported to Mr Zemaitis that he tried to drink to become so drunk that he passed out because he “didn’t want to remember [his] memories of East Timor”. Mr Zemaitis referred to the relationship between the applicant’s mental disorder and his offending by observing that the offending involved having spent about $30,000 on the purchase of alcohol. Mr Zemaitis opined that for a lengthy period and particularly leading up to the period of his offending behaviour between 16 August 2009 and 5 February 2010, the applicant used alcohol to self-medicate and to help him to cope with his PTSD symptoms. Mr Zemaitis stated that the applicant would benefit from comprehensive treatment, including consultations with a general practitioner, psychological counselling, consultations with a psychiatrist experienced in treating military personnel suffering from PTSD and referral to a specialist PTSD course offered by the Townsville Mater Hospital. Mr Zemaitis considered that the applicant was at a low risk of reoffending since his condition had been diagnosed, pointing to his willingness to engage in treatment, his positive employment history since being discharged from the Australian Army and the support provided by his wife and parents.The granting of leave It was not entirely clear that the evidence was fresh evidence. However, as recognised in R v Spina,[1] even where the evidence in question is not fresh in the sense that it did not exist at the time of trial, or could not then with reasonable diligence have been discovered, this Court retains a residual discretion in exceptional cases to admit new or further evidence where refusal to do so would result in a miscarriage of justice. That position confirms the view stated in R v Maniadis that:[2]“… a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh … if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive.”[1][2012] QCA 179 at [32] and [34] per McMurdo P, with whom Fraser JA and Wilson AJA agreeing.[2][1997] 1 Qd R 593 at 597 per Davies JA and Helman J.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.