R v Finn - [2023] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Finn [2023] QSC 10

PARTIES:

R

(Crown)

v
CHRISTOPHER JAMES FINN

(Defendant)

FILE NO/S:

Indictment No 1263 of 2022, ex officio indictment presented 2 February 2023, Bench Charge Sheet No 46 of 2023

DIVISION:

Trial Division

PROCEEDING:

Criminal

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 February 2023 (orders and directions made on 2 February 2023)

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2023

JUDGE:

Applegarth J

ORDER:

1.   Copies of all exhibits are to be provided to Queensland Corrective Services. Particular attention to be urgently given by Queensland Corrective Services to the psychologist report of Louise Smith dated 1 February 2023 as to the Defendant’s mental condition, his current circumstances and difficulties encountered with him receiving essential psychological treatment from his psychologist whilst in custody at Woodford Correctional Centre.

2.   Queensland Corrective Services are to advise ODPP and the Defendant’s solicitors as to the anticipated security classification, transition from Woodford Correctional Centre and proposed course of mental health and other treatment that the Defendant is expected to receive in the 12 months following sentencing.

3.   Pursuant to s 344 Corrective Services Act 2006, Queensland Corrective Services are to prepare a pre-sentence report which should include the matters outlined above. The report is to be provided to the ODPP, the Defendant’s solicitors and the Supreme Court Criminal List Manager, within the soonest reasonable time.

4.   Sentence is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – HARDSHIP – where a distinguished war veteran developed PTSD and other mental illnesses after three tours of duty in Afghanistan – where those conditions and inadequate treatment of them resulted in sleep deprivation and had other serious consequences – where the veteran resorted to illicit drugs as a form of self-medication – where he currently is in a maximum security prison with inadequate access to the specialised PTSD treatment that he needs – where his current inability to access specialised treatment will exacerbate his war-caused mental health conditions, jeopardise his rehabilitation, and elevate his risk of suicide, either in custody or upon his release – where his treating psychologist and the Court are concerned about his safety, welfare and his prospects of rehabilitation if the status quo continues for the lengthy period in custody that lies ahead of him – the relevance of the defendant’s mental illness to the harshness of his current and future time in custody – where the Court needs more information about how harsh the anticipated circumstances of his future custody will be in order to arrive at a sentence that is a just punishment for the defendant’s crimes, given his personal circumstances

Corrective Services Act 2006 (Qld), s 209, s 211
Human Rights Act 2019 (Qld), s 30, s 37

Attorney General v Tichy (1982) 30 SASR 84, cited
R v Bowley[2016] QCA 254; (2016) A Crim R 93, cited
R v Braeckmans [2022] QCA 25, cited
R v Hartas[2021] QCA 178

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 Finn

Details

AGLC: R v Finn [2023] QSC 10
Case: [2023] QSC 10
Decision Date: 10 February 2023 (orders and directions made on 2 February 2023)

CaseChat Overview and Summary

In the case of R v Finn, the defendant, a distinguished war veteran who has served three tours of duty in Afghanistan, is before the court. The central issue revolves around his current mental health condition, which includes post-traumatic stress disorder (PTSD) and other mental illnesses. These conditions, compounded by inadequate treatment, have resulted in severe sleep deprivation and other serious consequences. Mr Finn has resorted to self-medicating with illicit drugs, and his current incarceration in a maximum security prison has limited his access to specialised PTSD treatment. This situation exacerbates his mental health conditions, jeopardises his rehabilitation, and elevates his risk of suicide, both in custody and upon his release.

The court had to consider the relevance of Mr Finn's mental illness to the harshness of his current and future time in custody. The central legal issues were whether the anticipated circumstances of his future custody, without access to necessary mental health treatment, would constitute a breach of his human rights and whether these circumstances should be factored into the sentencing process. The court needed more information about the harshness of his future custody to arrive at a sentence that would be a just punishment for his crimes, considering his personal circumstances and mental health conditions.

The court recognised the importance of treating Mr Finn with humanity and ensuring he has access to health services without discrimination. It acknowledged the obligations under the Human Rights Act 2019 (Qld) and the moral or social duty owed to a veteran whose imprisonment resulted directly from his distinguished war service. The court ordered that Queensland Corrective Services provide relevant information about Mr Finn's mental condition and treatment needs, including a pre-sentence report. It also ordered that copies of all exhibits be provided to Queensland Corrective Services, with particular attention to the psychologist's report. Sentence was adjourned to a later date to allow for further information gathering and consideration of Mr Finn's circumstances.

Orders

Orders of the court

1. Copies of all exhibits are to be provided to Queensland Corrective Services. Particular attention to be urgently given by Queensland Corrective Services to the psychologist report of Louise Smith dated 1 February 2023 as to the Defendant’s mental condition, his current circumstances and difficulties encountered with him receiving essential psychological treatment from his psychologist whilst in custody at Woodford Correctional Centre.

2. Queensland Corrective Services are to advise ODPP and the Defendant’s solicitors as to the anticipated security classification, transition from Woodford Correctional Centre and proposed course of mental health and other treatment that the Defendant is expected to receive in the 12 months following sentencing.

3. Pursuant to s 344 Corrective Services Act 2006, Queensland Corrective Services are to prepare a pre-sentence report which should include the matters outlined above. The report is to be provided to the ODPP, the Defendant’s solicitors and the Supreme Court Criminal List Manager, within the soonest reasonable time.

4. Sentence is adjourned to a date to be fixed.

Background

Background to the litigation

I should not need to remind the Department of Corrective Services of its obligations under the Human Rights Act 2019 (Qld) to treat Mr Finn with humanity (s 30) and of his right to access health services without discrimination (s 37). Had the Human Rights Act not been enacted, then the moral or social duty that is owed to a veteran whose imprisonment is the direct result of his distinguished war service would impose similar kinds of obligations.Mr Finn’s background Mr Finn was born in 1987. He grew up in New South Wales before joining the Army. When he was 13, his mother separated from his father, who is reported to have been an alcoholic and violent towards Mr Finn’s mother. It was only when Mr Finn started receiving EMDR therapy from Ms Smith, a psychologist, that he began to address the childhood abuse and trauma that he had experienced. EMDR therapy is an integrative psychotherapy approach that has been extensively researched and proven effective for the treatment of trauma, especially Complex PTSD. As noted, Mr Finn presently does not have access to it. Ms Smith observes that veterans often find military service controls the effects of childhood trauma but this is not lasting. Mr Finn began a relationship with his ex-wife from a young age. The relationship lasted until they separated in 2015. They were divorced in 2016. The breakdown in their marriage was due to his struggle with the embarrassment of waking up screaming at night, crying, and struggling with his mental health. He received a property settlement which he used for living expenses. Mr Finn has two older brothers with whom he is not close. Mr Finn’s mother has recently relocated from Wagga Wagga to Port Stephens. She is unable to see her son face-to-face regularly for any length of time. She speaks to him and uses video calls as often as she can. She is doing everything possible to help her son during his incarceration. Despite his crimes, she is extremely proud of her son’s service of his country. She remarks that this decorated commando veteran returned with severe PTSD. Ms Smith records that Mr Finn’s treating psychiatrist, Dr Barison, suggested that Mr Finn attend Mirikai for a comprehensive residential rehabilitation treatment, and that Mr Finn entered there in February 2022. This program appeared to assist Mr Finn. However, it was not enough to resolve his problems. He tried to adhere to his therapy program. Later, he attended the Military Service Trauma Recovery Program, which is a niche six-week program at a private hospital. He received Prolonged Exposure Therapy (PET) that is designed to improve mood and reduce symptoms. However, it appears that this program exacerbated rather than minimised Mr Finn’s PTSD symptoms. Apparently, he was required to record his recollections of a traumatic incident from his overseas deployment and was told to listen to it before he went to sleep every night. This triggered his PTSD. He asked to cease PET but was encouraged each time to continue it.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Finn [2023] QSC 10
PARTIES:	R (Crown) v CHRISTOPHER JAMES FINN (Defendant)
FILE NO/S:	Indictment No 1263 of 2022, ex officio indictment presented 2 February 2023, Bench Charge Sheet No 46 of 2023
DIVISION:	Trial Division
PROCEEDING:	Criminal
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	10 February 2023 (orders and directions made on 2 February 2023)
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2023
JUDGE:	Applegarth J
ORDER:	1. Copies of all exhibits are to be provided to Queensland Corrective Services. Particular attention to be urgently given by Queensland Corrective Services to the psychologist report of Louise Smith dated 1 February 2023 as to the Defendant’s mental condition, his current circumstances and difficulties encountered with him receiving essential psychological treatment from his psychologist whilst in custody at Woodford Correctional Centre. 2. Queensland Corrective Services are to advise ODPP and the Defendant’s solicitors as to the anticipated security classification, transition from Woodford Correctional Centre and proposed course of mental health and other treatment that the Defendant is expected to receive in the 12 months following sentencing. 3. Pursuant to s 344 Corrective Services Act 2006, Queensland Corrective Services are to prepare a pre-sentence report which should include the matters outlined above. The report is to be provided to the ODPP, the Defendant’s solicitors and the Supreme Court Criminal List Manager, within the soonest reasonable time. 4. Sentence is adjourned to a date to be fixed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – HARDSHIP – where a distinguished war veteran developed PTSD and other mental illnesses after three tours of duty in Afghanistan – where those conditions and inadequate treatment of them resulted in sleep deprivation and had other serious consequences – where the veteran resorted to illicit drugs as a form of self-medication – where he currently is in a maximum security prison with inadequate access to the specialised PTSD treatment that he needs – where his current inability to access specialised treatment will exacerbate his war-caused mental health conditions, jeopardise his rehabilitation, and elevate his risk of suicide, either in custody or upon his release – where his treating psychologist and the Court are concerned about his safety, welfare and his prospects of rehabilitation if the status quo continues for the lengthy period in custody that lies ahead of him – the relevance of the defendant’s mental illness to the harshness of his current and future time in custody – where the Court needs more information about how harsh the anticipated circumstances of his future custody will be in order to arrive at a sentence that is a just punishment for the defendant’s crimes, given his personal circumstances Corrective Services Act 2006 (Qld), s 209, s 211 Human Rights Act 2019 (Qld), s 30, s 37 Attorney General v Tichy (1982) 30 SASR 84, cited R v Bowley[2016] QCA 254; (2016) A Crim R 93, cited R v Braeckmans [2022] QCA 25, cited R v Hartas[2021] QCA 178