R v Sutton

Case [2018] QCA 318

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sutton [2018] QCA 318

PARTIES:

R
v
SUTTON, Nathan John
(applicant)

FILE NO/S:

CA No 229 of 2018
SC No 965 of 2018
SC No 1205 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 30 August 2018 (Atkinson J)

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2018

JUDGES:

Fraser and Philippides JJA and Boddice J

ORDERS:

1.   Grant the application for leave to adduce evidence.

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

3.   Appeal allowed.

4.   Vary the sentences imposed by varying the parole release date from 29 April 2019 to 21 December 2018.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to concurrent sentences of two years imprisonment for possession of the dangerous drug cocaine in excess of 2 grams, 18 months imprisonment for possession of the dangerous drug cocaine, six months imprisonment for possession of the dangerous drug trenbolone, with parole eligibility after serving eight months imprisonment – where the sentencing judge held that the applicant’s possession of cocaine was for his personal use and not for the business of holding cocaine to sell it – where the applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive in all the circumstances

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – CUSTODIAL ORDERS – MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC – GENERALLY – where the sentencing judge was referred to a clinical psychologist’s report that indicated the applicant met the criteria for a diagnosis of stimulant use disorder, cocaine, severe in early remission; major depressive disorder, severe recurrent episode; and social anxiety disorder – where the clinical psychologist’s report referred to the applicant’s suicidal ideation and suicide attempts following arrest – where the report indicated that if the applicant were to receive a custodial sentence it is highly likely that the stress associated with imprisonment would have a negative impact on his mental well-being – where the sentencing judge stated that the usual discount would be made for the applicant’s plea but there was no basis for a further reduction – where the applicant sought leave to appeal against the sentence on the basis that the sentencing judge erred in failing to adequately take into account the applicant’s mental health issues – where the applicant sought leave to adduce a psychological report that has been commissioned for the purpose of examining the effects of the applicant’s incarceration on his mental health – whether in all the circumstances the sentencing discretion should be re-exercised

R v Clark[2017] QCA 318, applied
R v Hicks & Taylor[2011] QCA 207, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, applied
R…

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AGLC
R v Sutton [2018] QCA 318
Case
[2018] QCA 318
Decision Date

CaseChat Overview and Summary

The case of R v Sutton involved the applicant appealing against his sentence, arguing it was manifestly excessive and that the sentencing judge failed to adequately consider his mental health issues. The applicant was sentenced to concurrent terms of imprisonment for possession of dangerous drugs, with parole eligibility after eight months. The appeal was based on the applicant's contention that his mental health issues should have resulted in a more lenient sentence. The applicant sought leave to adduce a psychological report commissioned to examine the effects of incarceration on his mental health.

The legal issues in this case were whether the sentence was manifestly excessive and whether the sentencing judge failed to adequately consider the applicant's mental health issues, particularly in light of a clinical psychologist's report indicating severe mental health conditions. The appeal hinged on whether the sentencing judge should have imposed a lesser sentence given the applicant's mental health diagnosis and the potential negative impact of imprisonment on his well-being.

The court considered the relevance of mental health conditions to sentencing, referencing established legal principles that such conditions can affect moral culpability, the type of sentence imposed, and the conditions under which it should be served. The court noted the applicant's severe mental health issues, including stimulant use disorder and major depressive disorder, and acknowledged the potential exacerbation of these conditions by imprisonment. The sentencing judge had considered the psychologist's report but did not reduce the sentence further beyond the usual discount for a guilty plea. The court concluded that the sentencing discretion should be re-exercised given the applicant's mental health issues.

The court granted the application for leave to adduce the psychological report and allowed the appeal. The sentences were varied to reduce the parole release date from 29 April 2019 to 21 December 2018, reflecting the need to consider the applicant's mental health in the sentencing process.

Orders

Orders of the court

1. Grant the application for leave to adduce evidence.

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

3. Appeal allowed.

4. Vary the sentences imposed by varying the parole release date from 29 April 2019 to 21 December 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The balance of her Honour’s sentencing remarks as to the reasons for sentence were brief and as follows:[5]“This is a timely plea of guilty and I take that into account in the sentence to be imposed upon you. The possession of that amount of cocaine is very serious. Albeit it was predominantly for personal use, it is nevertheless a very serious offence, and the Court is obliged to impose a sentence which deters you and others from engaging in that kind of criminal behaviour.In all of the circumstances, the appropriate sentence to be imposed on count 2 is, in my view, two years’ imprisonment; on count 1, a concurrent period of 18 months’ imprisonment; and on count 3, a concurrent period of six months’ imprisonment. I will sign the serious drug offence certificate. I record convictions on each count on the indictment. So far as the summary charges are concerned, I record convictions and impose no further punishment.In all of the circumstances, you are entitled to the usual discount which is given for a plea of guilty, as has happened in this case, but I see no reason to further reduce it. So your parole release date will be after you have served eight months’ imprisonment, and that is on 29 April 2019.”[5]AB at 35.The application for leave to appeal against sentence and to adduce evidence The applicant seeks leave to appeal against his sentence on the basis that it was manifestly excessive and upon a further basis, in respect of which leave was granted that the sentencing judge erred in failing to take into account or failing to sufficiently take into account the applicant’s mental health issues. The applicant also sought leave to read and file an affidavit exhibiting a further psychological report in support of the additional ground. The application to adduce further evidence concerns an updated psychological report of Ms Krishnan dated 25 October 2018.[6] The report was commissioned after sentence for the purpose of examining the effects of the applicant’s incarceration on his mental health.[6]R v Maniadis [1997] 1 Qd R 593 at 597. It was submitted that, given the applicant’s limited criminal history, cooperation with police and early plea of guilty as well as findings of predominant personal use, although with a commercial element, that absent his mental health issues, the sentence imposed would have been either manifestly excessive or at least at the high end of the range. It was submitted that the applicant’s mental health issues rendered the sentence beyond the sound exercise of the sentencing discretion. The applicant thus submitted that, although the sentencing judge adverted to the contents of the psychological report, the sentence imposed did not reflect the applicant’s mental health issues outlined in the report by a reduction of the time to be served below the common sentencing practice of one third usually referable to a plea of guilty.[7][7]R v Hicks & Taylor [2011] QCA 207 at [34]; R v Ungvari [2010] QCA 134 at [30].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In my view, the new evidence does not come into the category in Maniadis. Accordingly, it is only appropriate in this case to grant leave to adduce the report if the Court is required to re-exercise the sentencing discretion.Consideration There is a long line of authority as to the relevance of a mental health condition to the sentencing discretion. The Victorian Court of Appeal in R v Tsiaras,[19] set out the following propositions, adopted by this Court in R v Yarwood,[20] and in other decisions of this Court:[21]“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”[19][1996] 1 VR 398 at 400.[20](2011) 220 A Crim R 497.[21]See R v Clark [2017] QCA 318. The report also set out[22] the following connection between drug use and the applicant’s mental health and social issues:“When considering [the applicant’s] problematic cocaine use, it seems that this occurred in the context of psychological, environmental and social factors. [The applicant] reported that at the time he was experiencing emotional lability such as depression, irritability and anxiety which appeared to have been exacerbated by recent psychosocial stressors including a marriage breakdown, financial problems, occupational difficulties and the death of a close friend’s mother. It seems that [the applicant’s] emotional dysregulation contributed to the development of his cocaine use problem and perpetuated an excessive reliance on the substance to maintain a sense of psychological balance. It is also notable that at the time, [the applicant] was associating with individuals who also used cocaine … His association with substance-using individuals would have provided access an opportunity for substance use as well as influenced attitudes accepting of substance use. It would appear that [the applicant] developed a dependency for cocaine quite rapidly following his initial use. His problematic cocaine use also resulted in a negative trajectory included impaired control over his drug use, continued use despite significant substance-related problems, persistent psychopathology, and pharmacological features such as tolerance and withdrawal symptoms.”[22]AB at 50, para 41.