Court of Appeal (Qld)|2015-12-01|Before: Holmes CJ and Morrison JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Holmes CJ and Morrison JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE
MANIFESTLY
EXCESSIVE – where the applicant pleaded guilty to a number of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCEMANIFESTLYEXCESSIVE – where the applicant pleaded guilty to a number ofcounts, including trafficking in dangerous drugs, namely heroinandmethylamphetaminepossession of dangerous drugs, namely methylamphetamine and3,4methylenedioxymethamphetaminepossessing aquantity of mobile phones and twomotor vehicles for use in the traffickingand possession of dangerous drugs,namely methylamphetamineand cannabis – where the applicant was sentencedto 10 years imprisonment – where there was a declaration that theoffencewas a serious violent offence – where the applicant seeks leave toappeal against his sentence on the ground that it is manifestlyexcessive– where the applicant was the principal target of a police trafficking
operation – where the applicant sourced
large quantities of heroin and
methylamphetamine – where the trafficking business ran by the applicant
was “sophisticated
and profitable” – where the applicant was
arrested – where the applicant reoffended whilst on bail and was arrested
again – where the applicant suffered from a psychiatric condition due to
his life in and escape from Kosovo – where the
applicant contended that
the sentence was manifestly excessive due to his psychiatric difficulties
– where the applicant submitted
that the sentence was manifestly excessive
as he did not reoffend on bail after being arrested for the second time –
whether
the sentence was manifestly excessive because the comparable cases do
not support a 10 year sentence
Penalties and Sentences Act 1992 (Qld), s 159A
O’Connor v The Queen [2014] VSCA 108, considered
R v
Assurson (2007) 174 A Crim R 78, [2007] QCA
273, considered
R v Carey [2015] QCA
51, considered
R v Chen [2008] QCA
332, considered
R v Falzon, unreported, Atkinson J, SC No 889 of
2008, 18 May 2009, cited
R v Galeano [2013] 2 Qd R 464
[2013] QCA
51, considered
R v Goodger [2009] QCA
377, cited
R v Johnson [2007] QCA
433, considered
R v Kalaja [2012] QCA
329, considered
R v Kashton [2005] QCA
70, cited
R v Ly & Kyprianou [2008] QCA
149, considered
R v Markovski [2009] QCA
299, considered
R v McGinniss [2015] QCA
34, considered
R v Nabhan
R v Kostopoulos [2007] QCA
266, considered
R v Poppa [2005] QCA
157, considered
R v Prendergast [2012] QCA
164, considered
R v Timoti [2003] QCA
96, considered
R v Tout [2012] QCA
296, considered
R v
Tran (2006) 162 A Crim R 188
[2006] QCA
174, considered
R v Verdins (2007) 16 VR 269
[2007] VSCA 102,
cited
R v Wright (1997) 93 A Crim R 48, cited
R v Yarwood
(2011) 220 A Crim R 497
[2011] QCA
367, considered
R v Zander [2009] VSCA 10, cited
Judgment (135 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE - where the applicant pleaded guilty to a number of counts, including trafficking in dangerous drugs, namely heroin and methylamphetamine; possession of dangerous drugs, namely methylamphetamine and 3,4methylenedioxymethamphetamine; possessing a quantity of mobile phones and two motor vehicles for use in the trafficking; and possession of dangerous drugs, namely methylamphetamine and cannabis - where the applicant was sentenced to 10 years imprisonment - where there was a declaration that the offence was a serious violent offence - where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive - where the applicant was the principal target of a police trafficking operation - where the applicant sourced large quantities of heroin and methylamphetamine - where the trafficking business ran by the applicant was "sophisticated and profitable" - where the applicant was arrested - where the applicant reoffended whilst on bail and was arrested again - where the applicant suffered from a psychiatric condition due to his life in and escape from Kosovo - where the applicant contended that the sentence was manifestly excessive due to his psychiatric difficulties - where the applicant submitted that the sentence was manifestly excessive as he did not reoffend on bail after being arrested for the second time - whether the sentence was manifestly excessive because the comparable cases do not support a 10 year sentence
Director of Public Prosecutions (Queensland) for the respondent
[27]
[1] HOLMES CJ: I agree with the reasons of Morrison JA and the order he proposes.
[2] MORRISON JA: On 8 September 2014 Mr Ahmetaj pleaded guilty to a number of counts, the most serious of which was trafficking in heroin and methylamphetamine over a period of two years and three months:
count 1: trafficking in dangerous drugs, namely heroin and methylamphetamine, between 27 February 2010 and 27 May 2012;
count 9: possession of dangerous drugs, namely methylamphetamine and 3,4methylenedioxymethamphetamine (MDMA);
count 10: possessing a quantity of mobile phones and two motor vehicles for use in the trafficking; and
count 11: possession of dangerous drugs, namely methylamphetamine and cannabis.
[3] On 18 September 2014 he was sentenced to 10 years imprisonment on the trafficking charge. There was a declaration that the offence was a serious violent offence. Pursuant to s 159A of the Penalties and Sentences Act1992 (Qld), 423 days pre-sentence custody were declared as time served. Whilst convictions were recorded on the remaining counts he was not punished further.
[4] Mr Ahmetaj seeks leave to appeal against his sentence on the sole ground that it is manifestly excessive. The reasons advanced for that contention define the issues for the Court:
Mr Ahmetaj suffers from severe psychiatric and psychological difficulties, namely a chronic and complex post-traumatic stress disorder, an associated major depressive disorder, and a panic disorder; that will make his time in prison more difficult, and warranted a greater discount on the sentence;[1]
for the 14 months he was on bail he did not reoffend or commit a breach of bail, and during that time he sought psychiatric and psychological treatment; and
[28]
[5] This Court stated the principle to be applied where the issue is whether a sentence is manifestly excessive, in R v Tout:[2]
[29]
"... a contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is "unreasonable or plainly unjust": Hili v The Queen[2010] HCA 45; (2010) 242 CLR 520 at [58], [59]."
[30]
[6] An agreed schedule of facts set out the circumstances of the offending.[3]
[7] Mr Ahmetaj was the principal target of a police trafficking operation. The drug trafficking business employed person called Skeli, and various tasks in that business were performed by Mrs Ahmetaj, at the direction of Mr Ahmetaj.
[8] The trafficking had commenced by February 2010. Mr Ahmetaj sourced large quantities of heroin and methylamphetamine from Sydney. Between March 2010 and May 2012, he travelled to Sydney (or a midway location) 17 times. He sourced drugs through a person called Pesovic, who was based on the Gold Coast and travelled to Sydney many times to buy drugs for Mr Ahmetaj. Mr Ahmetaj was also buying drugs from two Sydney based suppliers, See and Nguyen.
[9] Between May 2011 and June 2011 Mr Ahmetaj was provided a heroin sample and later ordered six (6) ounces of heroin from another Sydney based supplier. That supply did not take place.
[10] The trafficking business run by Mr Ahmetaj was "sophisticated and profitable". Mobile telephones in false names were used, and changed very regularly. Communications were carried out in code and in foreign languages, including Albanian and Serbian. Mr Ahmetaj provided covert mobile phones to customers in order to promote dedicated communication.
[11] During the 27 month trafficking period, Mr Ahmetaj was supplying wholesale quantities of heroin, up to two to three ounces at a time, to street level dealers. The price was up to $8,000 per ounce. The purchasers included Price, Beach and Walker. Beach and Walker were long term heroin users, and sold to street level users who came to their house. They had in excess of 30 persons as regular purchasers, some visiting their house daily.
[12] There was frequent telephone contact, between Mr Ahmetaj and Skeli, Price, Beach and Walker. Physical meetings were organised to supply the drugs, collect money or give samples of the drug to be supplied. That happened, for example, when Mr Ahmetaj was considering purchasing heroin and a sample was provided for quality testing. Mr Ahmetaj utilised Skeli to minimise his own exposure to risk.
[13] On 28 February 2010 Mr Ahmetaj was in his car, in possession of heroin that he intended to sell. When police approached his car he threw a package out of his window, and then attempted to evade them in a pursuit. He had to be forcibly removed from his car. The package was retrieved and found to contain 85.227 grams (about three ounces) of heroin, with a purity level of 17.32 per cent. The pure weight of the heroin was 14.659 grams, which had an estimated value of $34,000.
[31]
"The need for deterrence is increased in this case by the fact that the applicant committed the offence of grievous bodily harm whilst on bail for robbery. As Chief Justice Street observed in R v Richards[1981] 2 NSWLR 464 at 465:
[32]
"The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail."
[33]
While it is not the case that normally cumulative sentences will be imposed upon persons who commit offences whilst on bail, the penalty imposed must reflect the fact that a further offence has been committed so that it does not appear that further offending whilst on bail does not increase the penalty for the offender. Chief Justice Street referred to this as:
[34]
"It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."
[35]
That principle was applied by this court in R v Wilde, Ex parte A-G (Qld)[2002] QCA 501 at [15] and [27]."
[36]
[24] In R v Nabhan; R v Kostopoulos[8] the offender Kostopoulos trafficked for profit, after he had previous convictions for drug possession, and took risks that he would be caught in order to make that profit. That aspect was the subject of comment in R v Chen:[9]
[37]
"Deterrence was of particular importance for large scale commercial drug traffickers such as Kostopoulos, who made a calculated decision to accept the risk of apprehension and imprisonment in order to reap large financial rewards."
[38]
[25] Mr Ahmetaj was born on 6 January 1970. He was 40 to 42 years old when the offences occurred, and 44 years and eight months at sentencing. Some of his history is revealed in reports from Dr Ziukelis and Dr Yoxall:
(a) he is Albanian or Montenegran, and raised from childhood in Kosovo; he experienced constant pressure and blatant discrimination throughout his life because of his Albanian background; lived with the need to be constantly vigilant about what he said; the father was harsh and instilled in him a sense of fear and need to be hyper-vigilant;
(b) his mother was chronically ill with a congenital cardiac condition; she died when he was 19;
(c) he completed secondary education but could not get work because of the displacement of Albanians; he and his family feared for their lives when the war in Kosovo was taking place;
(d) he fled Kosovo when he was 20, and went to Slovenia; the journey was in December and he walked for weeks through deep snow; he then did not have contact with his family for about four years;
(e) he went to the Netherlands when he was 27; the rest of the family ended up in the USA or Germany; he came to Australia in 1997 on a false passport, and spent nine months in detention at Villawood; that was a terrifying experience as attempted suicides and self-harm were a common sight; he found it an extremely depressing and hopeless environment;
(f) he met his wife in 2000, and married in 2003; up to 2003 he was totally dependent on sponsors, then on his wife and her family, because under the bridging visa he had, there was no entitlement to work, and he was not entitled to Centrelink or Medicare assistance; he felt an absolute powerlessness to progress his life; being reliant on charity was a matter of shame to him; he also lived in fear of deportation;
(g) in 2004 he started to use prescription medication for depression, and then more recently for diabetes;
(h) in 2006 he started to use heroin to relieve distress, and he became addicted; he successfully underwent rehabilitation; he developed diabetes around 2007;
(i) in 2007 he applied for permanent residency;
(j) he was granted permanent residency which allowed him to be able to work and start to build a life; by that time he was in his late thirties, had little to no English proficiency and few job skills; he was also under treatment for severe and chronic Post-traumatic Stress Disorder and Major Depressive Disorder;
[39]
[26] In 2004 Dr Ziukelis diagnosed Mr Ahmetaj as suffering from chronic Post Traumatic Stress Disorder (PTSD) with accompanying Major Depression. The source of that condition lay in the psychological injury sustained from before he arrived in Australia, and the shame and humiliation he felt over his predicament. As described by Dr Ziukelis:[10] he was constantly preoccupied with thoughts about the brutality seen and experienced in Kosovo; he suffered insomnia, getting up nightly after an hour or two and pacing the floor; he was constantly anxious, had episodes of panic and felt a constant sensation of pressure on his chest.
[27] The prognosis in 2004 for his PTSD was that it would take further years to abate even with treatment. Dr Ziukelis said the major depression appeared to be a gradual outcome of prolonged fear, uncertainty and enforced dependency.[11]
[28] Dr Ziukelis reported again in 2012.[12] The diagnosis of PTSD remained, though it had "somewhat abated over the years since he was first seen in 2004". The medication level had diminished, from major tranquillizers and antidepressants, to "5mgm" of diazepam, as needed to counter panic attacks.[13]
[29] A psychologist, Mr Coucill, provided a report dated 28 August 2014.[14] He first saw Mr Ahmetaj in 2008 when he was attending a court diversion course for minor illicit drug possession. Since that course finished Mr Ahmetaj had continued with counselling sessions voluntarily. The description of Mr Ahmetaj's complaints was: feeling sad and depressed, had little energy and was not sleeping well; racing interfering thoughts in the early morning; reduction in previous activities that used to give him pleasure because of his negative mood state; and poor self-esteem and increased anxious feelings.
[30] Mr Coucill reported on the course of treatment:[15]
[40]
"During the time I have been his psychologist he has focused on addressing his grief, understanding his triggers surrounding his previous drug use behaviour and instilling relapse prevention strategies. This includes self esteem training, psychoeducation and awareness skills, motivation tasks and self control theory. Mr. Ahmetaj has demonstrated active positive change and adapted these new understandings into his daily functioning, which has increased his self esteem and hope for the future."
[41]
[31] Then he gave his recommendation for the continuation of treatment, saying that Mr Ahmetaj had benefited from the treatment and "continually shown improvement in presentation, initiative and mood state". Further, he had attended scheduled appointments and demonstrated a desire to continue the treatment, attaining "motivation in addressing his past illicit drug abuse".[16]
[32] Dr Yoxall, a psychologist, gave a report dated 17 September 2014, for use at the sentencing hearing.[17] She recorded this description of the complaints:[18]
[42]
"Mr Ahmetaj said that his psychological difficulties started before he came to Australia but have increased in severity and complexity over the years. This is not uncommon in individuals who have experienced chronic and complex trauma. He said that he struggles with intrusive memories and dreams of brutality that he saw and experienced in Kosovo, the profound fears that he lived with for so many years, and the incidents that he was witness to at Villawood Dentention (sic) Centre. He has a long history of panic, insominia (sic), agitaition (sic), depression, irritability and generalised anxiety."
[43]
[33] Dr Yoxall reviewed the assessment she conducted which included detailed information gathering from Mr Ahmetaj and his wife, a clinical review, and an assessment of his psychological functioning. Her view was expressed as:[19]
[44]
"Mr Ahmetaj presents with chronic and complex Posttraumatic Stress Disorder and associated Major Depressive Disorder and Panic Disorder. His currently (sic) level of overall function is very low.
[45]
In my opinion Mr Ahmetaj requires ongoing psychiatric and psychological treatment. Given the chronicity of his psychological difficulties, it could be beneficial for him to engage in an intensive inpatient program tailored to treat the chronic and complex Posttraumatic Stress Disorder and to address the related substance misuse, depression and anxiety. Such an intervention would not be expected to resolve his current symptoms, (and would only be conducted with approval and support of his treating psychiatrist and psychologist) but may assist in moderation of some current symptoms and allow Mr Ahmetaj and his wife to gain more in-depth education about his complex mental health problems and develop more strategies to enhance day to day function.
[46]
Overall, even with such recommended intensive treatment and ongoing management with his current treatment team, Mr Ahmetaj's prognosis is limited. It is likely that this man will live with a level of symptomatology for the foreseeable future and the goal of treatment is to manage his difficulties and achieve optimal function."
[47]
[34] In her summary of conclusions Dr Yoxall also expressed the view that:[20]
[48]
"Information provided by Mr Ahmetaj on assessment, together with clinical observation and supporting documentation suggests that his psychological dysfunction has escalated in the period since his arrest. He currently presents with a complex clinical picture of chronic and complex Posttraumatic Stress Disorder, Major Depressive Disorder, Recurrent and Panic Disorder with Agoraphobia. His currently (sic) level of daily function is very low and he is heavily reliant upon his wife for support in activities of daily living. His amphetamine and cannabis drug dependence has now resolved but he reportedly has chronic and complex medical conditions including Diabetes Mellitus Type II for which he is now insulin dependent."
[49]
[35] Finally, as to the way in which Mr Ahmetaj would cope with imprisonment, Dr Yoxall offered this assessment:[21]
[50]
"In my opinion Mr Ahmetaj's physical and mental health concerns would render him an extremely vulnerable individual in a prison setting. His history of trauma, and psychological difficulties, combined with his poor physical health would likely place him at risk of exploitation by others and psychological decompensation. Mr Ahmetaj requires a comprehensive and highly structured treatment regime to address his mental illness which would not be available to him in a prison environment."
[51]
[36] Mr Ahmetaj was granted bail on 23 July 2013. Thus about 14 months elapsed between then and when he was sentenced. There is no evidence to suggest that while on bail Mr Ahmetaj reoffended. During that time he continued his counselling sessions with his psychologist.
[52]
[37] Senior counsel for Mr Ahmetaj conceded at the outset of the application that, but for one distinguishing feature, the comparable cases put to the learned sentencing judge, and to this Court, supported the sentence imposed. As it was put "they support a sentence in and about the range which was imposed, and what I mean to convey by that is that if one looks at the level of the trafficking, 10 years is pretty well right ...".[22]
[38] The distinguishing feature was Mr Ahmetaj's personal circumstances and psychiatric condition, referring to the major depression and psychological impacts of early life in Kosovo, escape to Australia and then the struggle to establish a life here. It was put that the difficulties experienced by Mr Ahmetaj in his upbringing, escape from Kosovo, and attempts to form a life in Australia led to his post traumatic disorder and major depressive disorder, which in turn led to his drug use to alleviate the symptoms, and that resulted in his offending.[23] In that regard the court was directed to various parts of the reports of Dr Ziukleis and Yoxall, and the counsellor, Mr Coucill.
[39] Further, senior counsel also conceded that the learned sentencing judge was alive to the issue and took it into account.[24] However, it was submitted that none of the comparable cases involved anything like Mr Ahmetaj's background or condition.
[40] Before discussing the contention some additional matters need to be noted.
[41] Mr Ahmetaj's history is that he arrived in Australia in 1997, met his wife in 2000 and they married in 2003. From what he told Dr Ziukelis[25] and Dr Yoxall, he experienced significant symptoms of psychological injury from well before he arrived in Australia.[26] In January 2004 he was diagnosed with PTSD and Major Depression. Soon after, in June 2004, Dr Ziukelis started treatment on a semi-regular basis.[27] The treatment continued throughout the period of trafficking.
[42] According to Dr Ziukelis the diagnosis of PTSD "had somewhat abated over the years since he was first seen in 2004".[28] In 2006 he started using heroin or cannabis to relieve his stress. When he was permitted to apply for permanent residence the symptoms changed and "[r]elief and evidence of cautious optimism were evident".
[53]
"Mr Ahmetaj said that when he was charged in 2010 he was using a mix of cannabis, heroin and ecstasy, along with prescription medication. He said that he tried again, to resolve his drug use. He said that he was able to abstain from all drugs for a period of time.
[54]
However Mr Ahmetaj said that when he relapsed again, he was introduced to methylamphetamine. He said that this drug gave him energy, and again, allowed him to disconnect from his emotional difficulties. He said that he initially felt powerful, happy and motivated on the drug. He said that through using the drug he became acquainted with others who used. He said that much of this occurred at elaborate and expensive parties and he said that he knew various high status professionals on the Gold Coast who used drugs with him.
[55]
Mr Ahmetaj said whilst his drug use escalated he found he was living two lives. He said that when he wasn't using drugs he spent time with his wife and socialised and assisted various important people within the Albanian community and he said that he derived great satisfaction from being perceived as successful and generous. He said that he felt as though after so many years of being worthless (when he had to rely on the charity of others), he had finally been able to prove himself."
[56]
[44] Dr Yoxall's conclusions were expressed in a way that touched on the issue. She reported that Mr Ahmetaj's said his previous personal drug use "initially arose as a form of selfmedication against his posttraumatic stress symptoms"[32] She went on:[33]
[57]
"On assessment Mr Ahmetaj acknowledges that his offending was initially precipitated and perpetuated by a need to fund his own drug dependence. However he acknowledges that offending was also motivated by a desire to achieve some financial success after had spent (sic) most of his life in poverty, reliant upon charity."
[58]
[45] Mr Ahmetaj first saw Mr Coucill in July 2008, when he was on a court diversion for minor illicit drug possession, and he continued to see him after that program finished.
[46] In R v Yarwood,[34] this Court referred to the ways in which an offender's psychiatric illness can be relevant to sentencing, adopting what was said in R v Verdins:[35]
[59]
"Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
[60]
The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
[61]
[47] In R v Goodger[36] Keane JA set out those propositions and then said:[37]
[62]
"This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion."
[63]
[48] There are a number of reasons why I cannot accept the contention advanced on behalf of Mr Ahmetaj.
[49] First, the condition of Mr Ahmetaj falls well short of that which could be said to reduce moral culpability. Indeed, it was not put that way in the submissions before this Court.
[50] Secondly, given the nature of the offending here, the condition has no real bearing on the kind of sentence to be imposed or the conditions in which it should be served. As was accepted at sentencing and in this Court, a custodial sentence of some length was inevitable.[38]
[51] Thirdly, the nature and severity of the symptoms exhibited by Mr Ahmetaj do not call for any softening of the factors of general or personal deterrence. Notwithstanding his ongoing treatment, Mr Ahmetaj started and then continued trafficking, motivated (at least in part) by the desire for profit. Nor is there any suggestion of the condition impacting on Mr Ahmetaj's mental capacity.
[52] The rationale for reducing the weight of deterrence where mental impairment is an element is that the individual is not an appropriate medium for making an example to others.[39] In other words, the interests of society do not require such a person to be punished as severely as a person who does not have that disability. However "[w]hat matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time".[40] As was said in Verdins:[41]
[64]
"[13] Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances - that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future."
[65]
[53] Deterrence is moderated, not eliminated, by consideration of the mental impairment. However, as was said by Hunt CJ at CL in R v Wright:[42]
[66]
"The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great."
[67]
[54] The last sentence is applicable here. On the evidence, Mr Ahmetaj certainly had knowledge of what he was doing, and of the gravity of it.
[55] Fourthly, there is some suggestion that the condition of Mr Ahmetaj means that the sentence might weigh more heavily on him than it would on a person in normal health. However, in my view, the evidence as to that prospect is not so compelling that it outweighs the other sentencing factors.
[56] As was said in O'Connor v The Queen[43] the application of Verdins depends upon a specific evidentiary base:
[68]
"[64] Verdins made clear that the application of the sentencing considerations identified in Tsiaras was never intended to be confined to "serious mental illness". Those considerations were capable of application to any impairment of mental functioning. It has been mistakenly thought in some quarters that Verdins thus "opened the floodgates", making permissible a whole range of new arguments. In fact, the reverse is true, and this needs to be emphasised. The court in Verdins was at pains to point out that no argument of this kind should be advanced unless it had a proper evidentiary foundation.
[69]
None of the Verdins sentencing considerations can apply unless there is specific evidence from an expert about:
[70]
(a) the nature of the impairment of the offender's mental functioning;
[71]
(b) how the impairment affected, or was likely to have affected, the offender at the time of the offending; and/or
[72]
(c) how the impairment was affecting the offender at the time of sentence, or was likely to affect him/her in the future."
[73]
[57] The same point was made by Dodds-Streeton JA in R v Zander:[44]
[74]
"The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters."
[75]
[58] Dr Ziukelis's 2012 report was done for the purposes of the bail application, and therefore his comments were directed to being on remand. Dr Ziukelis simply said that "his present circumstances would precipitate a deterioration in symptoms of PTSD given their similarity to those associated with its onset and perpetuation". He did not address the circumstances that Mr Ahmetaj would face in prison, nor the assistance that might be available there.
[59] Mr Coucill was Mr Ahmetaj's treating psychologist and reported for the purpose of the sentencing in 2014. Beyond recommending ongoing psychotherapy Mr Coucill said nothing about the impact of prison.
[60] Dr Yoxall was also reporting for the purpose of sentencing in 2014. She said that Mr Ahmetaj reported that being on remand "was very difficult for him because of his psychological difficulties", but he was receiving ongoing medical treatment and medication. Further, it had enabled him to resolve his drug dependence.[45] Mr Ahmetaj told her he was fearful of prison but that seemed more to do with concerns about how he would protect himself, than with inability to cope because of his condition. Importantly, Mr Ahmetaj told her that "when I was in prison I was more healthy ... now[46] my depression is very bad".[47]
[61] Dr Yoxall recommended ongoing psychiatric and psychological treatment, and participation in a program tailored to treat the chronic and complex post-traumatic stress disorder.[48] Whilst Dr Yoxall's view was that the treatment program he required "would not be available to him in a prison environment", there is no evidence of her ability to express that view, nor any evidence to suggest that it actually cannot occur in prison. Dr Yoxall was suggesting a non-custodial sentence, which was clearly unrealistic given the seriousness and nature of the offending.
[62] Dr Yoxall said that his condition renders Mr Ahmetaj "an extremely vulnerable individual in a prison setting", which was explained as meaning that '[h]is history of trauma, and psychological difficulties, combined with his poor physical health would likely place him at risk of exploitation by others and psychological decompensation".[49]
[76]
[71] The other point mentioned on the application was that Mr Ahmetaj had not reoffended while on bail.[61] This was not given any prominence on the hearing of the application, and need not be dealt with separately, particularly in light of the concessions referred to in paragraph [37] above. It may be observed that any benefit to be derived from that factor is diminished by the very fact that the entire period of the trafficking was when Mr Ahmetaj was on bail for a heroin possession charge.
[77]
[72] The Crown relied on seven cases: R v Poppa;[62]R v Assurson;[63]R v Ly & Kyprianou;[64]R v Chen;[65]R v Markovski;[66]R v McGinniss;[67] and R v Carey.[68]
[73] Senior counsel for Mr Ahmetaj relied on an additional 15 decisions: R v Baffi;[69]R v Dimech & Ors;[70]R v Ellis;[71]R v Falzon;[72]R v Galeano;[73]R v Johnson;[74]R v Kashton;[75]R v Popa;[76]R v Prendergast;[77]R v Rodd; ex parte Attorney-General (Qld);[78]R v Thompson;[79]R v Tilley; ex parte A-G (Qld);[80]R v Tran;[81] and R v Versac.[82]
[74] A number of the proposed comparable cases were sentences imposed after a trial, which limits their utility. In that category are: Ellis, Popa, Versac and Markovski, though, as will appear, Markovski is useful for a general statement as to the appropriate range.
[75] Some were put forward to demonstrate the (not surprising) proposition that sentences higher than the ten years imposed on Mr Ahmetaj were imposed in cases involving significantly worse offending. For that reason they are not of much assistance. In that category are: , , and .
[78]
"The Court has recently analysed the relevant sentencing decisions: see R v Galeano at [26]-[31], R v Ryan[2014] QCA 78 at [43]- [45], and R v Johnson at [43]-[46]. As I observed in R v Safi[2015] QCA 13 those analyses indicate that, whilst each sentence requires an exercise of discretion with reference to the facts and circumstances of the case, for substantial trafficking in a Schedule 1 dangerous drug of the order of the applicant's trafficking, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment of between 10 and 12 years (with the automatic declaration that the offence was a serious violent one). In this case, as in Safi, it is sufficient to quote the following passage from the judgment of McMurdo P, with whose reasons Holmes JA and I agreed, in the broadly similar case of Johnson in which a sentence of 10 years imprisonment was upheld:
[79]
'[45] In Feakes[2009] QCA 376, the applicant pleaded guilty to trafficking in an assortment of Sch 1 and Sch 2 dangerous drugs and to other related drug offences. He applied for leave to appeal against his 10 year sentence. He was 30 and 31 when he offended and 34 at sentence. He had some relevant but minor criminal history. The trafficking was committed in breach of a good behaviour bond when he was subject to "drug diversion". His offending consisted of supplying drugs on 11 particularised occasions over a seven month period to a covert police operative. He supplied 32 grams of cocaine, almost 5,000 tablets containing 330 grams of the then Sch 2 drug MDMA, and 110 grams of the Sch 2 drug MDEA. His benefit from drug related activity was over $56,000 and about $115,000 passed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton[2005] QCA 70; R v Assurson(2007) 174 A Crim R 78, [2007] QCA 273; Rodd; R v Elizalde[2006] QCA 330; R v Bradforth[2003] QCA 183 and R v Raciti[2004] QCA 3659 this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to slightly lesser terms. Feakes had a grossly dysfunctional upbringing and had made real efforts to overcome his dependence on cannabis and other drugs so that he had promising prospects of rehabilitation. Whilst a sentence of nine years imprisonment could have been imposed, the 10 year sentence was not manifestly excessive.'"
[80]
[85] Galeano was a 10 year sentence on a plea of guilty to trafficking over two years and three months. Galeano, 49 at the time, had a significant criminal history, including drugs, property and weapon offences, and a previous conviction for trafficking. The drugs trafficked in relation to his 10 year sentence were methylamphetamine, MDMA and cannabis. The sales over the period totalled $390,000, and the business was expanding. It was a busy enterprise conducted with a view to making substantial profits. The business was profitable enough for Galeano not to charge for $60,000 worth of drugs supplied to one woman in exchange for sex.
[86] The sole basis of challenge to the sentence was as to mitigating factors, including some substantial physical injuries he sustained at the time of arrest. The main ground was that Galeano had developed a major depressive disorder as a consequence of the events at his arrest.
[87] The court held that, upon a review of comparable cases, including Kashton, a range of 10 to 12 years was appropriate for "trafficking in dangerous drugs for substantial gain on a plea of guilty". That range could go up to 14 years where there was "trafficking in a drug as dangerous as heroin on a large scale ... or by repeat offending whilst on bail...". The previous conviction for trafficking put the sentence near the top of the range.
[88] Johnson involved a nine year sentence, reduced to eight on appeal.[85] It was a plea of guilty to trafficking in methylamphetamine and cannabis over five years. Error in the sentencing judge's approach was identified so the question was not one of manifest excess, but the imposition of a new sentence. Johnson purchased methylamphetamine in ounce lots for about $5,000 per lot. He supplied to people who came to his house, in amounts worth from $20 to $500. On one occasion he gave $12,000 to a courier to purchase 2.5 ounces of speed. Johnson was an addict himself, and the proceeds of the business provided for his own habit and the living expenses of him and his partner.
[89] The court held that Johnson was at "a lower level of criminality relative to larger retailer or wholesalers who traffic in drugs for commercial gain" and:[86]
[81]
"The variety of circumstances which may attend trafficking in dangerous drugs means that, with this offence as with many others, it is not possible neatly to categorise the degrees of seriousness of offending in particular cases with quite the degree of precision suggested by the submissions made on the applicant's behalf. Nevertheless, it is, I think, possible to say that the nature of the offending engaged in by the applicant, even over the period of five years, is less serious than that which this Court has regarded as attracting a sentence of the order of 12 to 13 years by way of head sentence before circumstances in mitigation, such as an early plea of guilty, are taken into account. There is much force in the submission made by Mr Moynihan SC, who appeared for the applicant, that the criminality of an addict who sells dangerous drugs at the retail level to support his habit is of a different order from that of a large retailer or wholesaler whose motivation is 'cynically commercial'. While one cannot ignore the seriousness of the applicant's offending and the social harm he has caused, it would be both unrealistic and unduly harsh to refuse to recognise that the applicant too is a victim of dangerous drugs."
[82]
[90] Notwithstanding the concession by senior counsel I have conducted a review of all the comparable cases advanced. Those demonstrate that the ten year sentence for Mr Ahmetaj is not outside the range of sentences that fell within proper discretion:
(a) Poppa and Assurson each involved a much lesser period of trafficking, so the nine year sentences there do not demonstrate that the sentence for Mr Ahmetaj was out of the range; indeed they support the sentence imposed;
(b) McGinniss supports the sentence imposed on Mr Ahmetaj; it involved trafficking for a lesser period but the apparent value of the sales was higher; however its importance is the statement of the applicable range after a review of sentencing decisions:[87]
[83]
"... for substantial trafficking in a Schedule 1 dangerous drug of the order of the applicant's trafficking, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment of between 10 and 12 years (with the automatic declaration that the offence was a serious violent one)."
[84]
(c) Carey supports the sentence imposed on Mr Ahmetaj; there were complicating factors to do with the reduced sentence of a co-offender, which meant that the sentencing process was more difficult; however, the court considered that for trafficking for a lesser period, by someone in a subordinate position in the organisation, but with a poor criminal history, an effective sentence of 10 years and five months was appropriate;
(d) Galeano is distinguishable from the present case because of the particular features of the actual events of the arrest contributing to the psychiatric condition, and the physical injuries, and the cooperation with police, that were influential on the sentence;
(e) Ly & Kyprianou was a lower period but more significant trafficking, and Ly's criminal history and Kyrianou's mitigating circumstances distinguish the outcome; further, the court's recognition of a range of nine to 13 years puts Mr Ahmetaj's sentence squarely in range as none of those factors are present here;
(f) Chen was a roughly similar time period but a greater variety and much larger quantities of drugs; I regard it as an example of more serious offending than here;
(g) Markovski is distinguishable because he was close to the top of a distribution network, and the level of trafficking and profits were greater;
(h) Johnson was a less serious case, involving an addict selling at street level; that is not the case here;
(i) similarly Prendergast was a less serious case of lower level trafficking (albeit not at street level) without the trappings of wealth that seems to have been derived from the business by Mr Ahmetaj; in any event the difference in the sentence does not compel the conclusion that Mr Ahmetaj's sentence is manifestly excessive;[88]
(j) Kalaja was a more serious case of multiple drugs in large quantities, and a longer period of trafficking;
(k) Tran is a more serious case notwithstanding that the period was less than here, as Tran had a significant criminal history and the offending occurred while he was on parole;
(l) , whilst a decision now 10 years old and since overtaken by more recent cases such as , supports the sentence on Mr Ahmetaj; whilst he had a substantial criminal history the period was much the same as here, and the offending continued while on bail, as here; the sentence of 10 years' imprisonment was said to be at the bottom of the range.
[85]
[92] For the reasons expressed above I would refuse the application for leave to appeal.
[27] AB 111 reveals there was a break of one year between the first and second appointment, then three more appointments between July 2005 and February 2006; then no further appointments occurred until December 2006, which is after the first drug offences were committed; in 2007 there was a break of 10 months until the appointment in October 2007 which was just before he was sentenced for the first drug offences; appointments continued roughly every one or two months (with an exception between April and November 2009) until the start of the trafficking period.
[96]
[29] He told Dr Ziukleis it was heroin, and told Dr Yoxall it was cannabis: AB 115 and137.
[38] Counsel for Mr Ahmetaj submitted to the learned sentencing judge that eight or nine years was appropriate, taking into account all mitigating factors including the impact of prison: AB 65 lines 1-4.
[84]McGinniss at [11], Carmody CJ and Gotterson JA concurring.
[132]
[85] There were two counts. That in respect of trafficking in methylamphetamine involved a nine year sentence reduced to eight; that in respect of trafficking in cannabis involved an eight year sentence reduced to seven.
[133]
[86]Johnson at [17]. Emphasis added. Internal footnotes omitted.
[134]
[87]McGinnis at [11]. The decisions included some of those urged here, namely Galeano and Johnson, and Kashton and Assurson (referred to in Johnson).
the comparable cases do not support a 10 year sentence.
[14] Mr Ahmetaj was arrested that day and later released on bail. A search of his house revealed he had a taser. He continued trafficking, distributing wholesale quantities of heroin and methamphetamine to at least six customers, who were all detected having regular discussions with Mr Ahmetaj by phone about drug sales. The calls used codes to refer to drugs. Mr Ahmetaj then arranged for buyers to meet either near his house, in pre-arranged locations such as petrol stations or parks, or at the buyer's house.
[15] The trafficking continued until Mr Ahmetaj's arrest on 26 May 2012. At that time he was found in possession of small amounts of drugs. Mr Ahmetaj's trafficking was profit driven rather than to support his own habit. However in various telephone intercepts Mr Ahmetaj referred to his own use of methylamphetamine and cannabis, reflected by the small amounts of those drugs found at his house.
[16] Skeli acted as Mr Ahmetaj's right hand man, not just in relation to the drug trafficking, but also in Mr Ahmetaj's legitimate businesses, including car sales and attempting to establish a security business. The phone records revealed many frequent calls between Skeli and Mr Ahmetaj. Some calls related to legitimate business matters, but many were in code or to arrange a face to face meeting.
[17] Mr Ahmetaj and Skeli had various methods to prevent detection. Each had multiple mobile telephones registered in false names. When Mr Ahmetaj was arrested he had six mobile phones and multiple sim cards. During the investigation period Mr Ahmetaj used more than 19 phone numbers, registered in false names and addresses. He also supplied mobile phones to Beach and Walker, registered in false names, for them to use when contacting him.
[18] Mr Ahmetaj was a hands-on operator of the trafficking business, arranging meeting times and places, giving directions about samples, arranging testing of the quality of samples, specifying how the drugs should be mixed, directing someone to make contact with another to supply, asking that he be put in touch with suppliers in New South Wales, providing phones in false names or sim cards so that contact could be made, checking on the whereabouts of buyers, protecting the anonymity of customers, and giving instructions to one buyer to "just ask and play dumb" when being sent to check on another buyer who had been intercepted by police.
[19] On some occasions Mr Ahmetaj used his car sale business to launder money from his drug trafficking business. Records showed an inflated sale price for cars sold privately after auction, over the price that had actually been paid by the customer.
[20] The agreed schedule of facts, arrived at after factual negotiations, recorded "[t]he profit [made] from the trafficking business was large, in the order of [hundreds] of thousands of dollars".[4] That was the only fact to which there was some qualification. Senior counsel for Mr Ahmetaj said that his instructions were that "the profit from the trafficking was at least $100,000, so a six-figure amount".[5]
[21] Mr Ahmetaj lived an expensive lifestyle: in addition to his house he owned a luxury unit; in his house there were a number of Versace items, including Versace etched glass around the swimming pool; he was wearing valuable jewellery at the time he was arrested; four receipts from Versace were found in his house, including one for a Versace coat worth over $1,800. The receipts showed that all purchases were paid for in cash. He owned substantial real estate, drove expensive cars including a Bentley Continental, and owned a Bayliner Mercruiser vessel.
[22] On 28 February 2010 Mr Ahmetaj was arrested and charged with possession of three ounces of heroin: see paragraph [13] above. The circumstances at the time of his arrest were that he was intending to supply that heroi[6] to others.6 He was given bail. On 20 July 2010 he was sentenced in respect of other charges arising from the events on 28 February (and the weapons charge arising from possessing the taser) but not in respect of the three ounces of heroin. He remained on bail for that charge. The period of admitted trafficking in heroin and methylamphetamine was 27 February 2010 to 27 May 2012. Therefore for the entire period of trafficking Mr Ahmetaj was on bail for the heroin possession charge. That was a serious aggravating factor.
[23] In R v Timoti[7] this Court referred to the impact on sentencing where there is offending while on bail:
(k) he and his wife opened a car sales yard in 2009, which included doing work on repairable write-offs and then on-selling vehicles; once they had an income they started to invest in property, and they completed a couple of small residential development projects.
[43] According to what he told Dr Yoxall, after being in rehabilitation he started using cannabis again after his father died in 2009. He also started using heroin, which gave him "a temporary break from the anguish that he felt". Then Dr Yoxall records this from Mr Ahmetaj:[31]
[63] The learned sentencing judge took account of Dr Yoxall's report,[50] and specifically the factor that Mr Ahmetaj's condition "will make [his] time in prison difficult".[51] Since her Honour stated that this was one of the circumstances which caused her to consider that the appropriate sentence was ten years, I would infer that the sentence might have been greater but for that factor.
[64] In my view further moderation is not called for. I do not consider that the possibility, or even probability, that the sentence might weigh more heavily on Mr Ahmetaj than it would on a person in normal health, justifies a reduction in the sentence already imposed. Nor has it been demonstrated that there is a serious risk of imprisonment having a significant adverse effect on his mental health. The evidence referred to below suggests that his mental health is more robust than Dr Yoxall's report might suggest.
[65] Fifthly, whatever the condition, and however it arose, it did not seem to hinder Mr Ahmetaj in progressing his business or social interests, or prevent him from engaging in complex business transactions. Once he and his wife moved to the Gold Coast (by early 2004) they obtained car dealer licences and commenced a legitimate car sale business in 2005, which, it seems, was successful. In addition they commenced to invest in property, carrying out a couple of small residential development projects, and they (or at least, he) engaged in society at "elaborate and expensive parties ... [with] high status professionals". The property investments were successful as the agreed statement of facts described him as owning "substantial real estate".[52]
[66] None of that suggests that the psychiatric condition impacted in a way that was disabling, or truly drove him to trafficking. Mr Ahmetaj was operating his personal and business life at a high level of competency. He was under the assistance of Dr Ziukelis from 2004, and had seen him on 25 occasions from 2004 to 2006, prior to the first serious drug offences in 2006. Then he saw him another 15 times before the trafficking period started in 2010. None of that bespeaks a condition that should reduce the sentence given the obvious criminality of the trafficking.
[67] Sixthly, Dr Yoxall referred to what Mr Ahmetaj said was the motivation for the trafficking, namely that it was in part "motivated by a desire to achieve some financial success"[53] and "became a means to achieve some level of financial stability that he could not otherwise achieve".[54] In my view, once the trafficking is motivated, even in part, by financial desire, the psychiatric condition ceases to be of such significance to the exercise of the sentencing discretion. In fact, Mr Ahmetaj seems to have gone well beyond mere financial stability, given the agreed facts about his substantial property and expensive lifestyle and possessions.[55]
[68] In this respect the statement of agreed facts recorded the assertion that the "trafficking was profit driven rather than to support his own habit".[56] That was clearly so given that the only correction to the agreed facts was as to the amount of the profit, rather than the motivation for the trafficking. Even then the profit was quite substantial. It recorded that "[t]he profit made from the trafficking business was large, in the order of hundreds of thousands of dollars".[57] The qualification was that "the profit from the trafficking was at least $100,000, so a six figure amount".[58]
[69] Further, senior counsel conceded that it could not be submitted that the habit could not have been funded but for the trafficking[59] and that the trafficking was significant.[60]
[70] In my view, it is this aspect that makes the factors in Yarwood and Verdins of less importance than those of personal and general deterrence. The condition from which Mr Ahmetaj suffers did not impede his pursuit of financial rewards by trafficking in heroin and methylamphetamine over an extended period and in defiance of police intervention, and while on bail.
Ellis
Popa, Tran
Kalaja
Versac
[76] Some had features in them which, it was accepted, rendered them not useful as a true comparable. Into that category are: Ellis (the appeal only concerned the imposition of an SVO) and Kashton (possession of a gun and ammunition, no cooperation with two committals).
[77] Several are first instance decisions, which limits their utility. They are: Baffi, Dimech, and Thompson.
[78] Rodd and Tilley were appeals by the Attorney-General, so whether the decision was to impose a new sentence, or the sentence imposed was not manifestly inadequate, their utility is doubtful where the question is whether a sentence is manifestly excessive.
[79] Given the concession that, but for the personal circumstances, the comparable cases referred to the learned sentencing judge, and on the application to this court, would support the sentence actually imposed, there is little benefit in conducting a full scale review of all those cases. However, mention should be made of some of them.
[80] In doing so, one further matter needs be borne in mind. Although the sentence proceeded on Mr Ahmetaj's plea of guilty, the plea was entered late, after the matter had been listed for trial and after some co-accused had indicated that they would give evidence against him.[83]
[81] Markovski involved a trial for trafficking in cocaine and ecstasy over an eight-month period, for which the sentence was 15 years. He was 47 to 48 at the time, with no relevant criminal history. He was highly placed in a wholesale distribution network and dealt in wholesale amounts. It was "trafficking at a very high level ... in wholesale amounts of cocaine and ecstasy ... for the obvious motive of making profits". The amount of profit could not be estimated because not much was banked, but it could be inferred that sales of half a kilogram of high purity cocaine at $67,000 occurred, which had a street value of about $1 million. Sales of 5,000 tablets of ecstasy per week were discussed, involving a very large sum of money. The trafficking "produced substantial profits, and ... [Markovski] was close to the top of his distribution network".
[82] The Court observed that in cases of substantial trafficking at a relatively high level in a drug distribution network, a sentence of between 11 and 13 years was appropriate where there was a plea of guilty. The sentence of 15 years was within range for one imposed at a trial.
[83] McGinniss involved a 10 year sentence imposed, on plea of guilty, for trafficking in methylamphetamine over a seven month period. He was 26 at the time, with no relevant criminal history. He supplied small amounts to three regular customers, and other occasional customers. One customer was supplied on 30 or 40 occasions over the trafficking period, for the gross price of at least $54,000. Other supplies were at $10,000 and $20,000. As well McGinniss was also paid $1,000 per week to carry out various tasks in another drug syndicate, including transporting drugs worth more than $100,000. He was intercepted and had pure crystallised methylamphetamine worth more than $200,000 in his possession. Mitigating features were urged, including that he found a job, commenced rehabilitation, and had not reoffended while on two years bail.
[91] The late plea, and the circumstances in which it was made,[89] are matters which support the conclusion that the sentence imposed on Mr Ahmetaj was not manifestly excessive.