R v SCZ

Case [2018] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCZ [2018] QCA 81

PARTIES:

R
v
SCZ
(applicant)

FILE NO/S:

CA No 288 of 2017
SC No 1188 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 November 2017 (Dalton J)

DELIVERED ON:

4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2018

JUDGES:

Morrison and Philippides JJA and Davis J

ORDERS:

1.   The application to adduce further evidence be allowed and the Court receive into evidence on the application for leave to appeal against sentence the report of psychologist, Sara Jones.

2.   Leave to appeal against sentence is granted.

3.   The appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to possession of a dangerous drug and received a court ordered parole order – where the applicant sought at the sentence hearing to tender a psychologist’s report – where the sentencing judge asked if the report diagnosed the applicant with any mental illnesses and the applicant’s counsel indicated it did not – where the sentencing judge refused the tender of that report – where the report in fact set out symptoms consistent with mental illnesses – where the applicant alleges that that the imposition of parole instead of a suspended sentence of imprisonment was an error – whether the psychologist’s report should have been accepted and whether a suspended sentence of imprisonment should have been imposed instead

Corrective Services Act 2006 (Qld), s 199, s 200, s 201, s 205, s 206
Penalties and Sentences Act 1992 (Qld), s 9, s 144, s 146, s 147, s 160B

Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20, cited
Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51, cited
R v Bowen [1997] 2 Qd R 379; [1996] QCA 479, cited
R v Holcroft [1997] 2 Qd R 392; [1996] QCA 478, cited
R v Holley; ex parte Attorney-General (Qld) [1997] 2 Qd R 407; [1996] QCA 480, cited

COUNSEL:

R N O’Gorman for the applicant
M J Wilson for the respondent

SOLICITORS:

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

  1. MORRISON JA:  I agree with the reasons of Davis J and the orders his Honour proposes.

  2. PHILIPPIDES JA:  I agree with Davis J.

  3. DAVIS J:  The applicant seeks leave to appeal against a sentence of 18 months’ imprisonment subject to immediate release on court ordered parole[1] imposed upon her on 14 November 2017 in the Trial Division.  The sentence was imposed after the applicant had, on 8 November 2017, pleaded guilty to an amended indictment charging her with one count, namely, “That on the 13th day of June 2015 at Oxley in the State of Queensland [the applicant] unlawfully had possession of the dangerous drug methylamphetamine”.

    [1]Pursuant to

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Details
AGLC
R v SCZ [2018] QCA 81
Case
[2018] QCA 81
Decision Date

CaseChat Overview and Summary

SCZ appeals against the sentence imposed by the sentencing judge, seeking to argue that the imposition of a court-ordered parole instead of a suspended sentence of imprisonment was an error. The appeal is brought under the Penalties and Sentences Act, which allows for the whole or part of a sentence of imprisonment of five years or less to be suspended for an operational period set by the sentencing court. The sentencing judge had refused to accept a psychologist's report tendered by counsel during the original sentencing hearing, which the applicant now claims should have been accepted and led to a different sentencing outcome.

The appeal court must determine whether the psychologist's report should have been accepted and, if so, whether a suspended sentence of imprisonment should have been imposed instead of the court-ordered parole. The court must consider whether the report contained relevant information about the applicant's mental health and whether this information would have affected the sentencing decision. The court must also consider the provisions of the Penalties and Sentences Act and whether the sentencing judge had the discretion to impose a suspended sentence of imprisonment.

The court found that the psychologist's report should have been accepted and that it contained relevant information about the applicant's mental health. The court found that the sentencing judge had erred in refusing to accept the report and that this error affected the sentencing decision. The court found that the applicant was eligible for a suspended sentence of imprisonment and that the sentencing judge had the discretion to impose such a sentence. However, the court found that the sentencing judge's decision to impose a court-ordered parole instead of a suspended sentence of imprisonment was not an error and that the appeal against sentence should be dismissed.

Orders

Orders of the court

1. The application to adduce further evidence be allowed and the Court receive into evidence on the application for leave to appeal against sentence the report of psychologist, Sara Jones.

2. Leave to appeal against sentence is granted.

3. The appeal against sentence is dismissed.

Background

Background to the litigation

At the beginning of her submissions on sentence, counsel sought to tender the psychologist’s report. Her Honour questioned counsel as to the relevance of the report. The following exchange then occurred:“COUNSEL:As your Honour has heard, Ms SCZ is now 53 years of age. A report has been prepared by a psychologist, Sara Jones. I can tender that report. I’m not sure if your Honour has had the opportunity to read that yet.HER HONOUR: I haven’t had the opportunity to read it, but what - - -COUNSEL:Might I tender that?HER HONOUR: Well, is it relevant? What’s rel – is it – what’s the relevance of it?COUNSEL:In my submission, the most assistance that your Honour would obtain from reading it is that Ms SCZ does have a very complex and traumatic set of antecedents, and they are set out quite neatly and helpfully in the report. If your Honour didn’t wish to receive the report predominantly for that purpose - - -HER HONOUR: Well - - -COUNSEL:- - - then I can take your Honour through it.HER HONOUR: - - - it’s just that – it’s Legal Aid, isn’t it? They essentially brief out the taking of – I mean, I don’t mind at all if there is actually some condition which the defendant suffers from that is within the expertise of a psychologist to report to the court on, but it’s – otherwise, it’s just used for Legal Aid to brief out the taking of the factual case, that I think is an abuse, quite frankly. And it’s – because they’re put together by people that aren’t lawyers – I haven’t read this, but they say all sorts of things which a lawyer would know not to say, you know, about how it would be terrible to send the person to jail and things like that. Here it is. Which:It’s recommended whatever sentence option be delivered to Ms SCZ that she be afforded the opportunity to engage in therapy.Which is sort of – the person writing doesn’t understand my job, do they? So does the psychologist diagnose Ms SZC with anything?COUNSEL:No, there’s no diagnosis provided in the report. Really, as far as observations go, along those lines, it’s set out at page 11 – the very bottom of page 11, which talks about the writer’s recommendation that Ms SCZ would benefit from therapy moving forwards, but also - - -HER HONOUR: But - - -COUNSEL:- - - I suppose - - -HER HONOUR: But that’s not - - -COUNSEL:If your Honour - - -HER HONOUR: I just – so what’s it rel – what – I can’t order therapy.COUNSEL:No.HER HONOUR: So it’s terrific that a psychologist thinks that she’d benefit from therapy, but it’s sort of irrelevant, isn’t it? So is there anything in here that is relevant to what I’m doing, and is it just the facts, because you can tell me that.COUNSEL:I can.HER HONOUR: So is – shall I give it back? Is there anything – I know it’s just a bit of a bugbear of mine, but I’m not alone and it’s – I just think it’s an enormous waste of Legal Aid money. It just feeds an industry, and rather than the lawyers doing their job – I’m assuming it’s Legal Aid here, am I correct?COUNSEL:This matter is legally aided.HER HONOUR: Yes. And the psychologists are paid almost nothing to do a job that isn’t relevant to my task.COUNSEL:Well, I suppose at the time that the matter is sent to the psychologist, in particular in relation to this matter, instructions had been taken about Ms SCZ’s background that gave rise to a real concern that there might be some underlying issues of a psychological nature that should be explored.HER HONOUR: All right. But then – but none were found.COUNSEL:Certainly some were found, and links are drawn by Ms Jones between matters that occurred to Ms SCZ at the hands of violent men in her past and her motivation or acquiescence in the offending in this present case, but those are matters, ultimately, that I would be making submissions upon in any event.HER HONOUR: Well, I’ll hand it back.”[8] (my emphasis)[8]Appeal record book at 16–18.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Penalties and Sentences Act provides that the whole or part of any sentence of imprisonment of five years or less may be suspended[23] for an operational period set by the sentencing court.[24] If an offence is committed during the operational period then s 146 is triggered. Sections 146 and 147 are as follows:[23]Section 144.[24]Section 144.“146 Consequences of committing offence during operational period(1)A court must proceed under this section if—(a) the court—(i)convicts an offender of an offence for which imprisonment may be imposed; and(ii)is satisfied that the offence was committed during—(A)the operational period of an order made under section 144; or(B)an extension of the operational period ordered under section 147(1)(a)(i); or(C)a further stated operational period ordered under section 147(1)(a)(ii)(B); or(b) an offender is otherwise before the court and the court is satisfied that—(i)the offender was convicted, in or outside Queensland, of an offence for which imprisonment may be imposed; and(ii)the offence was committed during—(A)the operational period of an order made under section 144; or(B)an extension of the operational period ordered under section 147(1)(a)(i); or(C)a further stated operational period ordered under section 147(1)(a)(ii)(B).(2)If the court mentioned in subsection (1) has like jurisdiction to the court that made the order, the first court must deal with the offender under section 147 for the suspended imprisonment.(2A)If the court mentioned in subsection (1) is of higher jurisdiction than the court that made the order, the first court must deal with the offender under section 147 for the suspended imprisonment unless the court considers that it would be in the interests of justice for the offender to be dealt with under section 147 by the court that made the order.(2B)If, under subsection (2A), the first court does not deal with the offender under section 147 for the suspended imprisonment, it must—(a) commit the offender to custody to be brought; or(b) grant bail to the offender conditioned to appear;before a court of like jurisdiction to the court that made the order.(3)If—(a) the order was made by a court other than a Magistrates Court; and(b) the court mentioned in subsection (1) is a Magistrates Court;the Magistrates Court must proceed under subsection (4).(4)The Magistrates Court mentioned in subsection (3) must—(a) commit the offender to custody to be brought; or(b) grant bail to the offender conditioned to appear;before a court of like jurisdiction to the court that made the order.(5)If—(a) the order was made by the Supreme Court; and(b) the court mentioned in subsection (1) is a District Court;the District Court must proceed under subsection (6).(6)The District Court mentioned in subsection (5) must—(a) commit the offender to custody to be brought before the Supreme Court; or(b) grant bail to the offender conditioned that the offender appear before the Supreme Court.(7)If the offender comes before a court under subsection (2B), (4) or (6), the court must deal with the offender under section 147 for the suspended imprisonment.147Power of court mentioned in s 146(1)A court mentioned in section 146(2), (2A), (4) or (6) that deals with the offender for the suspended imprisonment may—(a) order—(i)that the operational period be extended for not longer than 1 year; or(ii)if the operational period has expired when the court is dealing with the offender—(A)that the offender’s term of imprisonment be further suspended; and(B)that the offender be subject to a further stated operational period of not longer than 1 year during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended imprisonment; or(b) order the offender to serve the whole of the suspended imprisonment; or(c) order the offender to serve the part of the suspended imprisonment that the court orders.(2)The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so.(3)In deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment the court must have regard to—(a) whether the subsequent offence is trivial having regard to—(i)the nature of the offence and the circumstances in which it was committed; and(ii)the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and(iii)the antecedents and any criminal history of the offender; and(iv)the prevalence of the original and subsequent offences; and(v)anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—(A)the relative length of any period of good behaviour during the operational period; and(B)community service performed; and(C)fines, compensation or restitution paid; and(D)anything mentioned in a pre-sentence report; and(vi)the degree to which the offender has reverted to criminal conduct of any kind; and(vii)the motivation for the subsequent offence; and(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.(4)If the court is of the opinion mentioned in subsection (2), it must state its reasons.(5)In this section—original offence means the offence for which a term of imprisonment has been suspended under section 144(1).original sentence means the sentence imposed for the original offence.subsequent offence means the offence committed during—(a)the operational period of an order made under section 144 for the original offence; or(b)an extension of the operational period ordered under section 147(1)(a)(i) for the original offence; or(c)a further stated operational period ordered under section 147(1)(a)(ii)(B) for the original offence.”