Solicitors:
Ren Zhou Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2014/217627
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 6 May 2016
Before: Girdham DCJ
File Number(s): 2014/211627
[2]
Judgment
BASTEN JA: The first proposed ground for which leave to appeal was sought alleged that the sentencing judge erred by not "attaching" sufficient weight to "mental health issues" of the applicant. That ground recognised, correctly, that the sentencing judge (Girdham DCJ) paid careful attention to the evidence of the mental and physical health of the applicant. The applicant's mental health was potentially relevant in that, (a) if it involved a condition which contributed to the offending, that might reduce the moral culpability of the offending; (b) it might reduce the importance of personal deterrence and might render the offender an inappropriate vehicle for maintaining general deterrence; and (c) such conditions as were on-going might cause the offender to suffer greater hardship in custody than would be the case for a person not suffering the same level of impairment of mental (or physical) health.
At the most basic level, the applicant needed to establish that the statutory discretion conferred on the sentencing judge had in some way miscarried, in accordance with the well-known principles articulated in House v The King (1936) 55 CLR 499 at 505. No such error was established in the careful reasoning of the sentencing judge in relation to these matters. I would refuse leave to appeal with respect to ground 1.
So far as the attempt to reformulate ground 1 is concerned, it cannot be accepted, for the reasons given by Latham J.
Ground 2 alleged error in "failing to apply any weight to the issue of probable hardship experienced by the applicant's family." That ground was insupportable as a matter of fact; the sentencing judge expressly accepted that the applicant's incarceration would have "an adverse effect upon his family", but did not accept that such hardship should result "in any substantial reduction or elimination of a sentence of imprisonment."
Again, there is a serious difficulty in identifying an error of principle in relation to this issue. In the course of submissions on 12 November 2015, counsel for the applicant accepted that the evidence as to the condition of the applicant's wife did not reach "the standard required to fit into exceptional hardship", but submitted that it could still be taken into account pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth).
There remains a live issue as to whether that standard should be applied in sentencing pursuant to s 16A of the Crimes Act. The trial judge, clearly cognisant of the ambivalence inherent in the applicant's submission, referred to the then very recent decision of this Court in Elshani v R [2015] NSWCCA 254. In Elshani, each member of the Court considered whether the standard of "exceptional hardship", a prerequisite (according to general law principles) to reducing the penalty to be imposed on the offender because of the effects on the family, applied to sentencing for a federal offence. Each member of the Court acknowledged that s 16A(2)(p), referring to "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants", contained no such qualification. However, the majority (Gleeson JA and Adams J) expressed the view that authority at the level of intermediate courts of appeal in various jurisdictions (including New South Wales) had entrenched the qualification required under general law principles in sentencing for a federal offence. Beech-Jones J repeated his opinion, as set out in R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265, that the correct interpretation of the Crimes Act permitted no such qualification. The same understanding of the statutory scheme has recently been accepted (obiter) by this Court in Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42 at [47]-[60].
In any event, it was not submitted that the sentencing judge in the present case misunderstood the correct sentencing principles. Nor can it be said that she disregarded the evidence and the submissions based on that evidence. Ground 2 thus failed to identify any error of a kind which would satisfy the requirements of House v The King.
In my view, leave to appeal should be refused with respect to ground 2.
LATHAM J: The applicant pleaded guilty to a charge of importing a marketable quantity of a border controlled drug, namely opium, contrary to s 307.2(1) of the Criminal Code 1995 (Cth). The offence carries a maximum penalty of 25 years imprisonment.
On 6 May 2016 the applicant was sentenced to imprisonment for five years six months and 18 days, including a non-parole period of four years to commence on 9 March 2016. The commencement date of the sentence reflected a period of presentence custody.
For the purposes of this application for leave to appeal against sentence, it is not necessary to relate the facts of the offence in any great detail. In short compass, the applicant arrived in Australia by plane on 23 July 2014 with six heatsealed packets in his carry on luggage which were found to contain 4,762 grams of opium.
[3]
The Grounds of Appeal
Ground one of the appeal alleged that the sentencing judge "erred by not attaching sufficient weight to the mental health issues of the Applicant."
Ground two of the appeal alleged that the sentencing judge "erred by failing to apply [sic] any weight to the issue of probable hardship experienced by the Applicant's family."
[4]
Ground One
In the course of the sentencing proceedings on 12 November 2015, the applicant's then legal representative tendered a report of 26 June 2015 under the hand of Mr Philip Gorrell, psychologist. Annexed to that report were the discharge summaries from New South Wales Health relating to the applicant's admissions to hospital in April 2005, November 2005 and August 2010.
The April 2005 discharge summary noted that the applicant was admitted with suicidal intention after being evicted from the Department of Housing premises that he was then occupying. The discharge summary in November 2005 referred to a psychiatric diagnosis of adjustment disorder with depressed mood. The discharge summary of August 2010 referred to a principal diagnosis of opioid dependence and brief psychotic episode with an additional diagnosis of post-traumatic stress disorder.
In the body of the report, Mr Gorrell noted the diagnoses in the discharge summary of 18 August 2010 and went on to say:-
"In reading the Discharge Summary of 18 August 2010, signed by Dr G Jovavik, Psychiatric Registrar, Cumberland Hospital, I am unsure as to what led to the diagnosis of Mr Kaveh suffering Post Traumatic Stress Disorder (PTSD). I suspect that it related to the fear of what the drug dealers to whom he owed money may do to him.
Mr Kaveh in describing his behaviours, thoughts and feelings after he was shot in 2011 was describing symptoms of Post Traumatic Stress Disorder. I attach the 'DSM 5 - Criteria for Post Traumatic Stress Disorder as it pertains to Mr Mohamed Kaveh both at the time of committing his offence and now'.
…
It is highly likely that Mr Kaveh's behaviour in committing his offence was a behaviour of protecting himself under duress; and that is the duress of:
1. A direct and realistic threat being made against him and his wife at the time being handed a package (illicit substances) in Iran.
2. Four years of threats and significant assaults upon him which led to him suffering PTSD.
3. Thinking: that was reacting to fear and a need to protect himself and his wife.
In addition to the suffering of PTSD it needs to be noted that Mr Kaveh has, as detailed by his psychiatric admissions and ongoing psychiatric treatment, suffered psychiatric issues.
…
Mr Kaveh continues to suffer post-traumatic Stress Disorder."
Of primary significance was the link drawn by Mr Gorrell between the shooting in 2011 and the applicant's description of symptoms consistent with PTSD. The reference to the uncertain basis for a diagnosis of PTSD in 2010 and the reference to four years of threats and significant assaults (that is, four years leading up to June 2015) ultimately prompted the applicant's legal representative to submit that her Honour "would attach very little weight to a diagnosis of PTSD in 2010 …. But certainly Mr Gorrell's diagnosis of PTSD is completely different because it is based upon being shot which is part of the criteria for such a diagnosis." Later, the applicant's legal representative submitted "I'm not really attaching anything in terms of your Honour according any weight to that at all, to that diagnosis of PTSD [referring to the diagnosis of PTSD in 2010 by Dr Jovavik]. It's the diagnosis of Mr Gorrell of post-traumatic stress disorder that it's (sic) important, I submit."
The Crown's response to this submission was that little weight should be given to a diagnosis, if the Court could be satisfied that it was a diagnosis at all. The Crown submission was that it was not entirely clear whether a diagnosis had been made. The Crown submitted that Mr Gorrell observed what the applicant had been feeling and notes that it is consistent with PTSD.
The proceedings were then adjourned to Friday 18 December 2015.
On 15 December 2015 the parties were called back before her Honour so that her Honour could convey her misgivings about accepting the report of Mr Gorrell. Her Honour said:-
"What concerns me is Mr Gorrell's report for in it there is no diagnosis of any psychiatric illness but in it he indicates that the offender is on a disability allowance - pension, by reason of his psychiatric issues. Indeed I'm not convinced that Mr Gorrell can make the diagnosis, if he's indeed made a diagnosis, and here we're talking about the PTSD that was in issue on the last occasion. It would appear that there was such a diagnosis by a registrar psychiatrist in 2010."
My reading of these remarks leads me to the conclusion that her Honour doubted whether Mr Gorrell had the necessary expertise and qualifications to make a psychiatric diagnosis.
As a result of her Honour's concerns the proceedings were adjourned to 5 February 2016 and adjourned again to 29 April 2016 to allow psychiatric evidence to be adduced on behalf of the applicant. Two reports under the hand of Dr M A Chaudhary were admitted into evidence. The first was dated 17 December 2015. That report noted that the applicant was last seen by Dr Chaudhary on 21 November 2015 with a diagnosis of severe depression and a history of suicide attempts. Nothing appeared in that report relating to a diagnosis of PTSD.
The second report of 25 January 2016 noted that the applicant had come under the care of Dr Chaudhary on 9 July 2005 and was treated for a schizoaffective disorder and bipolar disorder. Later in that report Dr Chaudhary noted that he had seen the applicant on 23 January 2016 and had perused the report prepared by Mr Gorrell. Dr Chaudhary then recorded that "I agree with Mr Gorrell that Mr Kaveh does suffer from posttraumatic stress disorder (PTSD) which was diagnosed in 2010."
Dr Chaudhary also gave evidence, in the course of which he acknowledged that he had never diagnosed the applicant with post-traumatic stress disorder over the course of the years that he had been treating the applicant, including over the course of the twenty eight consultations with the applicant after 18 August 2010. The doctor stated that his present diagnosis which included post-traumatic stress disorder was based entirely on what he had read in Mr Gorrell's report. This evidence led her Honour to conclude that the only diagnosis of post-traumatic stress disorder came from Mr Gorrell. At this point in the proceedings, the applicant's legal representative submitted that the "diagnosis of PTSD" could be taken into account, but the weight to be attached to it was a matter for the sentencing judge.
Her Honour comprehensively canvassed the evidence relating to the applicant's mental and physical condition in the course of passing sentence. Her Honour dealt with the evidence in relation to Mr Gorrell's report in the following way:-
"Furthermore, the terms of Mr Gorrell's report are such that it is by no means clear that Mr Gorrell himself made any diagnosis other than embracing the 'diagnosis' noted in the discharge summary of 2010, that is, before any shooting (in 2011) or subsequent assault (in 2012)."
There followed a summary of the evidence of Dr Chaudhary, who, her Honour noted, is not a forensic psychiatrist. Her Honour then said:-
"Dr Chaudhary's diagnosis based on the history provided and his observations of the offender is that the offender suffers depression, anxiety, chronic pain and bipolar disorder and that each condition has been made worse by the fact he was shot in 2011. So much could be expected. Whilst his report commented that the offender suffers post-traumatic stress, in evidence it became apparent that that was not a diagnosis that Dr Chaudhary had made, rather he embraced the diagnosis which had been noted, but had not been diagnosed by Mr Gorrell.
Having heard further from the parties in relation to this issue, I reject the comment of Mr Gorrell, who himself acknowledges that he is unsure what led to the additional diagnosis of PTSD, but that he "suspects that it related to the fear of what the drug dealer to whom he owed money may do to him". I am satisfied the offence was not committed in circumstances that involved duress. There is no causal connection between any diagnosis of PTSD (if indeed there has ever been such a diagnosis) and the commission of the offence.
The state of an offender's mental and physical health should be taken into account in so far as it is relevant and known to the court. That remains the case even though no causal connection with the commission of the offence can be established: See Benetiz v R [2006] NSWCCA 21 at [36] - [32] [sic, [36]-[42]; 160 A Crim R 166]. It is apparent that the offender does suffer mental health issues for which he is receiving treatment from Dr Chaudhary for depression, anxiety and schizoaffective disorder. There is nothing however that suggests that he cannot be medically treated and appropriately so whilst in custody. Notwithstanding, the offender's mental condition is relevant to the sentencing exercise and I have given it some weight in his subjective case."
The applicant takes no issue with the finding that the claimed diagnosis of PTSD had no causal relationship with the offence. The applicant contends that Mr Gorrell did diagnose PTSD and that such a diagnosis remained valid notwithstanding the absence of any causal link. The gravamen of the applicant's complaint is that her Honour did not refer to PTSD when dealing with the applicant's mental and physical health, and that, having regard to the non-parole period, which is almost 73% of the sentence, the only available conclusion is that her Honour did not give appropriate weight to this aspect of the applicant's subjective case.
I am unpersuaded that her Honour was not entitled to reject Mr Gorrell's "diagnosis" of PTSD. His reference to the 2010 diagnosis by a psychiatric registrar arguably underpinned every reference to PTSD thereafter. Simply recording the fact that the applicant expressed feelings consistent with some of the DSM 5 criteria for PTSD, and attaching those criteria to his report, falls short, in my view, of an independent diagnosis. Mr Gorrell was not qualified to make a definitive diagnosis. It remained doubtful that the applicant had established the diagnosis to the relevant standard. Dr Chaudhary's adoption of a questionable diagnosis did not advance the matter any further: see WW v R [2012] NSWCCA 165 at [58]-[60]; Lam v R [2015] NSWCCA 143 at [78]-[82], [90].
In any event, assuming that Mr Gorrell made an independent diagnosis of PTSD, the height of the applicant's submission on this ground is that her Honour gave insufficient weight to the applicant's mental health issues. As the Crown has rightly submitted, the applicant faces a significant hurdle in establishing error in the exercise of a discretion by a judge at first instance where questions of weight are concerned: R v Baker [2000] NSWCCA 85 at [11]; Jones v R [2009] NSWCCA 169 at [33] and [34]. The imposition of a non-parole period that is almost 73% of the sentence does not demonstrate, without more, that the sentencing judge erred.
On the hearing of the appeal, the applicant sought to re-cast Ground One in the event that this Court was not persuaded that there was error. In short, the applicant sought to rely upon additional material (also tendered for the purpose of re-sentencing), as "fresh evidence" justifying the intervention of this Court. It was submitted that the "fresh evidence" was capable of establishing that the applicant's experience of custody is much more onerous than was evident at the time of sentencing. The Crown opposed the admission of the material for that purpose.
The only document of relevance to this issue is a report of a psychologist, Mr Afsaneh Jolan, dated 9 March 2017. Mr Jolan has treated the applicant since November 2015. It appears from the report that Mr Jolan has visited the applicant in prison, although nowhere does Mr Jolan identify the number, date or duration of those consultations. Mr Jolan reviews the applicant's "psychological symptoms" and concludes that the applicant suffers from a depressive disorder with psychotic symptoms and anxiety disorders. Under the heading "Treatment", Mr Jolan notes that:
"over the years Mr Kaveh has been receiving pharmacological treatment for his psychological problems. He reported that recently his medications were reviewed and updated. …. Furthermore, Mr Kaveh reported that whilst in jail he has been under the care of a psychologist, however, the treatment modalities used are unknown."
It is useful to revisit the principles applying to the reception of additional evidence in this Court. In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, Simpson J (Davies J and Grove AJ agreeing) noted the distinction between "fresh evidence" and "new evidence", before passing to a consideration of the circumstances in which this Court would admit such material. Of relevance to the instant case, her Honour referred to Howie AJ's characterisation (as he then was) of a medical report as "fresh evidence" because it was prepared post sentence in R v Fordham (1997) 98 A Crim R 359; and went on to say at [120] and [121] :-
"For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing.
That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one."
The principles explored by Simpson J were applied in Wright v R [2016] NSWCCA 122, where the additional material was in the nature of fresh evidence (a diagnosis of dementia post sentence related to symptoms that were present at sentence), but the Court (Basten JA, R A Hulme and Fagan JJ) declined to admit it on the basis that it was insufficient to warrant a fresh assessment of sentence.
However the additional evidence is characterised, the salient question that governs the exercise of the discretion to admit the material is whether it may have had a real bearing on the exercise of the sentencing discretion: R v Goodwin (1990) 51 A Crim R 328; R v Fordham (1997) 98 A Crim R 359. There is nothing in the report that supports the contention that the applicant is experiencing hardship beyond that anticipated by the sentencing judge. The significance of the applicant's symptoms were fully appreciated at the time that sentence was imposed. Consistent with her Honour's view, the report suggests that the applicant is being appropriately treated for the same afflictions that were identified during the sentencing proceedings. I can discern no basis for concluding that the contents of Mr Jolan's report may have persuaded her Honour to exercise her sentencing discretion more favourably to the applicant.
I would refuse to admit the "fresh" material and I would refuse the applicant leave to rely upon the re-formulated ground.
I would refuse leave to rely upon Ground One.
[5]
Ground Two
Ground two concerned an alleged failure to consider the probable hardship which would be experienced by the applicant's family, were he to be imprisoned. At the sentencing hearing on 12 November 2015, the applicant's legal representative tendered a report by Mr Afsaneh Jolan dated 11 November 2015 relating to the health of the applicant's wife. The report was marked for identification. Her Honour indicated that she would receive the document on the basis that it provided evidence of the applicant's family circumstances, namely that he had a very young child. It appears that the document was never marked as an exhibit and there was no further application on the applicant's behalf to admit it into evidence.
The applicant's wife accompanied him on the flight that resulted in the importation of the opium. She was pregnant at the time and was due to give birth in October 2014. Mr Jolan's report does not refer to the birth date of the child, merely noting that his wife's "depression and anxiety disorders" are "closely linked to her husband's court related matters" and that they were "negatively impacting her overall functioning, including her ability to look after her daughter." The applicant's wife came under the care of a psychologist on 27 October 2015, that is, one month prior to the date listed for sentence.
Mr Gorrell's report also contained information to the effect that the applicant's wife spoke very little English, was therefore socially isolated and was heavily dependent upon the applicant.
I am prepared to acknowledge the possibility that her Honour intended to admit Mr Jolan's report but the occasion to do so did not arise, particularly in circumstances where the applicant's legal representative conceded (as did the applicant's counsel in this Court) that such hardship as there was did not qualify as "exceptional" or any greater than is usually the product of the incarceration of a husband and parent upon whom a spouse relies for familial, financial and social support.
It is clear that her Honour took account of the probable hardship to the applicant's family as part of the applicant's subjective case, in accordance with R v X [2004] NSWCCA 93, and R v Girard [2004] NSWCCA 170, both considered and applied in R v Nguyen [2006] NSWCCA 369. Her Honour said:
"A further matter that is required to be taken into account in the determination of the sentence appropriate is the probable effect that any sentence will have on the offender's family or dependants. It is apparent that the offender is married and the father of a young son (sic) who was born after IVF and it can be expected that the offender's incarceration will undoubtedly have an adverse effect upon his family. Such circumstances are to be regretted, as they are no doubt by the offender, however, in the absence of any further information, I am not of the view that the hardship that will be suffered by the family should result in any substantial reduction or elimination of a sentence of imprisonment."
No error has been demonstrated in her Honour's approach. It is incorrect to claim that her Honour placed no weight upon this aspect of the applicant's subjective case. Rather, her Honour took it into account but considered that it did not warrant a substantial reduction in sentence.
I would refuse leave to rely upon this ground.
It follows that I would dismiss the application for leave to appeal.
CAMPBELL J: I agree with Latham J and with Basten JA's additional observations concerning Ground 2.
[6]
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Decision last updated: 24 March 2017