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[2021] QCA 250
General information, not legal advice.
Court of Appeal (Qld)
2021-11-23
Sofronoff P and Davis and Williams JJ
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Bassi [2021] QCA 250
PARTIES: R / v / BASSI, Karamveer Singh / (applicant)
FILE NO/S: CA No 206 of 2021 / SC No 1632 of 2020
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 12 August 2021 (Dalton J)
DELIVERED ON: Date of Orders: 12 October 2021
DELIVERED AT: Brisbane
HEARING DATE: 12 October 2021
JUDGES: Sofronoff P and Davis and Williams JJ
ORDERS: Date of Orders: 12 October 2021 / a. setting aside the order that the appellant be released on parole on 22 August 2022. / b. ordering that, in relation to all sentences, the appellant be released on parole on 12 October 2021.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – JUDGE ACTING ON WRONG PRINCIPLE – where the applicant pleaded guilty to offences against the Drugs Misuse Act 1986 – where the sentencing judge failed to explain how the pleas of guilty had been taken into account on sentence – where the applicant had attempted to tender a report of a psychologist – where the report was relevant and admissible – where the judge refused the tender – whether the report was admissible / EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – QUALIFICATION OF WITNESS – where the applicant pleaded guilty to offences against the Drugs Misuse Act 1986 – where he sought to tender the report of a psychologist – where the judge refused the tender – whether the opinions expressed in the report were admissible opinion evidence – whether the opinions were relevant – whether other material in the report was relevant – whether the tender ought to have been refused / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where the applicant pleaded guilty to charges against the Drugs Misuse Act 1986 – where the applicant sought to tender a report of a psychologist – where the judge refused the tender – where the applicant sought to tender the report on appeal – whether the opinions expressed in the report were admissible – whether the other material in the report was relevant – whether the report ought to be admitted on appeal / CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – SENTENCE – where the applicant pleaded guilty to offences against the Drugs Misuse Act 1986 – where the offences included possession of a substantial quantity of cocaine – where the applicant successfully appealed against sentence and was resentenced – where his plea of guilty showed true remorse – where he had undertaken rehabilitation – where psychological evidence explained conditions leading to his offending – whether an earlier than usual date ought to be set for his release / Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20 / Criminal Code (Qld), s 651 / Drugs Misuse Act 1986 (Qld), s 9 / Evidence Act 1977 (Qld), s 132C / Penalties and Sentences Act 1992 (Qld), s 9, s 13, s 15, s 160G / Caldwell v Caldwell [1996] NSWCA 88, cited / Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42, followed / DPP v Sokaluk (2013) 228 A Crim R 189; [2013] VSCA 48, cited / Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148, considered / Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, followed / Nepi v Northern Territory [1997] NTSC 153, followed / R v Barry [1984] 1 Qd R 74, cited / R v Duncan [1969] 2 NSWR 675; (1969) 90 WN Pt 1 (NSW) 150, followed / R v Fahey [2019] QCA 142, considered / R v Forde (1986) 19 A Crim R 1, cited / R v Hawke [2021] QCA 179, considered / R v Hesketh; Ex parte Attorney-General (Qld) [2004] QCA 116, cited / R v Kucma (2005) 11 VR 472; [2005] VSCA 58, considered / R v Lobban (2001) 80 SASR 550; (2001) 126 A Crim R 468; [2001] SASC 392, followed / R v MacKenney (1981) 76 Cr App R 271, considered / R v McEndoo (1981) 5 A Crim R 52, cited / R v Nguyen [2015] QCA 205, cited / R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited / R v Peisley (1990) 54 A Crim R 42, considered / R v Runjanjic (1991) 56 SASR 114; [1991] SASC 2951, cited / R v Safi [2015] QCA 13, cited / R v SCZ [2018] QCA 81, cited / R v Somers (1963) 3 All ER 808, considered / R v Whitbread (1995) 78 A Crim R 452; [1995] VicSC 105, followed / Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, cited / Toohey v Metropolitan Police Commissioner [1965] AC 595; (1965) 49 Cr App R 148, considered / Trudgett v Commonwealth of Australia [2006] NSWSC 575, cited / Vander Donckt v Thellusson (1849) 8 CB 812; (1849) 137 ER 727; [1849] EngR 1161, considered
COUNSEL: S C Holt QC for the applicant / N W Crane for the respondent
SOLICITORS: TWC Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 12 August 2021, the appellant was convicted on his own plea of three counts on an indictment as well as two summary charges which had been transferred from the Magistrates Court pursuant to s 651 of the Code.
Count 1 on the indictment was possession of a dangerous drug, namely cocaine, with a circumstance of aggravation that the quantity of dangerous drug exceeded 2 grams. Count 2 charged possession of cannabis and count 3 charged possession of methylenedioxymethamphetamine, commonly known as MDMA. The first summary charge was possession of a pipe that had been used in connection with the smoking of a dangerous drug. The second summary charge was possession of property suspected of having been used in connection with the commission of a drug offence, namely a grinder and a set of electric scales.
In relation to count 1 on the indictment, the appellant was sentenced to a term of imprisonment of three years with a parole release order at 12 months on 12 August 2022. In relation to each of counts 2 and 3, he was sentenced to a period of imprisonment of six months and in relation to the two summary charges, he was convicted but not further punished. Convictions were recorded on all charges. All sentences were ordered to be served concurrently.
The appellant applied for leave to appeal to challenge the parole release date. He submitted that the parole release date ought to have been the date of sentence. He was in custody for almost two months until the hearing and submitted that his appeal ought to be allowed on the basis that he be released on parole on the hearing date of his application. That submission was accepted, we made appropriate orders and reserved reasons.
The appellant is a Canadian citizen who has been married for over 11 years. He and his wife have a nine year old daughter. The family is in Australia on a permanent residence visa. He was 34 years of age at the time of the offending. He had no prior convictions.
On 21 January 2020, police executed a search warrant at the appellant’s residence. As is routinely the case, the appellant, as occupier, was asked by police whether he wished to declare any contraband. The appellant showed police the pipe which became the subject of the first summary charge. He then directed them to various substances and things. In total, he revealed:(a)46.397 grams of cocaine within 77.668 grams of substance. That was count 1 on the indictment;(b)453 grams of cannabis. That was count 2;(c)1.67 grams of substance containing MDMA which is count 3;(d)a set of electric scales and a grinder which were summary offence 2.1
The appellant told police that the drugs were for a bucks party and were for personal use. The Crown did not accept the truth of that statement and the appellant did not persist with that position. The police found what appeared to be a tick sheet. The appellant initially denied knowledge of it but ultimately admitted that it was his.
“Ground 1 - the learned sentencing judge:
(a)failed to comply with s 13(3) of the Penalties and Sentences Act 1992
(b)failed to take into account as a mitigating feature, the applicant’s timely pleas of guilty and remorse
Ground 2 - the learned sentencing judge
(a)failed to take into account as mitigating factors, the applicant’s personal circumstances, including his otherwise good character, contribution to family and society, and importantly, his drug addiction and rehabilitation;
(b)imposed the sentence in breach of the rules of natural justice; and
Ground 3 - the 12 month non-parole period rendered the sentence imposed manifestly excessive.”
After tendering various documents and submitting that an inference should be drawn that the possession of the cocaine was motivated by a commercial purpose, the prosecutor referred the sentencing judge to R v Fahey.2 The prosecutor said, “Your Honour, I accept from the start that that is a more serious case than your Honour is dealing with today”. The prosecutor then summarised Fahey before pointing out that the sentence in that case was three years with a parole release date set at six months.
The final submission by the prosecutor was “… the defendant be sentenced to not less than three years imprisonment for the whole of the indictment, and your Honour would impose that in relation to count 1 on the indictment”. The prosecutor made no submission about an order for release on parole.
Counsel then appearing for the appellant opened his submissions with this remark: “Your Honour, could I start my submission by indicating that it will be my submission that the appropriate penalty to impose is three years imprisonment. My submission is directed to the prospect that your Honour would order an immediate parole release, or suspension, but immediate parole release probably is far more beneficial having regard to his background …”.
Defence counsel accepted that the cocaine possession was for a commercial purpose. He explained that the cocaine was purchased by the appellant for a bucks party which up to two dozen people would attend. The appellant planned to sell the cocaine at the bucks party. Counsel accepted that the tick sheet could lead to an inference that there had been some prior dealings with the cocaine. However, the acknowledgement of commerciality was limited to these circumstances. The Crown did not challenge that limited admission. Her Honour did not indicate that she would not accept counsel’s submissions in that respect.
Defence counsel tendered a statement by the appellant, a letter from the appellant’s wife and four personal references.
Defence counsel then attempted to tender a report of a psychologist, Professor James Freeman. There was this exchange:
“MR KIMMINS: Yes, thank you. Indeed, your Honour, there’s a report under the hand of Professor James Freeman, which was dated the 6th of August of two thou- - -
HER HONOUR: Well, what’s that relevant to?
MR KIMMINS: Your Honour, it’s – in fact, it identifies – Professor Freeman identifies, effectively, that he was at various times suffering from a dependency to various drugs.
HER HONOUR: Well, I’m not receiving a report – and it’s a complete waste of money if someone’s funded a report – to just say that.
MR KIMMINS: Well – and, effectively, that he was – that he was also suffering from, throughout the course of his life, and been diagnosed with ADHD. He’s been diagnosed with depression. He has been under the - - -
HER HONOUR: Well, Professor Freeman’s a psychologist.
MR KIMMINS: Yes, your Honour.
HER HONOUR: He can’t diagnose those things. If he’s just repeating hearsay that he’s been diagnosed with it, why don’t you tell me hearsay that that’s what he’s been diagnosed with. I don’t see why I should receive a report to receive some hearsay diagnosis.
MR KIMMINS: Your Honour, I will leave that at this particular stage and I’ll consider my position. I tender a reference under the hand of a Dr W-a-l-i-a, who is a consultant psychiatrist. I tender that.”
The appellant seeks to have Professor Freeman’s report, which is exhibited to an affidavit of a solicitor, Troy Anthony Smith, admitted on the appeal.
The appellant’s counsel then tendered the report of consultant psychiatrist, Dr Walia. This was limited to stating a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). A report of a general practitioner, Dr Zwar was also tendered. Dr Zwar recommended that the appellant receive medicinal cannabis for pain. The Therapeutic Goods Administration has allowed the appellant access to medicinal cannabis and a letter to that effect was tendered. A set of reports was tendered which show that the appellant suffers from degenerative problems with his back, as well as insomnia and sleep apnoea.
Her Honour asked as to the relevance of those reports and counsel said: “… there were a series of things leading up to the exacerbation of his usage of drugs and that was that he was having difficulty sleeping, he had problems with …”. Her Honour interrupted, there was an exchange and then her Honour said: “I’m not here to receive silly submissions, and how it is going to help me to form a good impression of your client, I do not know”.
Counsel nevertheless tendered a document under the hand of Nathan Castle who is a drug and alcohol counsellor. He then attempted to tender a certificate proving that his client had obtained a Diploma of Computer Networking and Technical Support, but her Honour rejected that tender saying she could be just told about those things.
Her Honour then enquired as to the relevance of much of the documentation and counsel responded by saying: “[H]e has attempted to take himself away from the crowd that he was involved with, and to get away from illegal drugs”. Counsel then attempted to tender a copy of his client’s academic record but her Honour said that it was irrelevant and refused that tender.
Counsel submitted that his client was addicted to illicit drugs but that he had a stable marriage, a good work history and prospects. He submitted that her Honour should consider immediate release on parole.
Her Honour’s sentencing remarks were short. After reciting the essential facts of the offending, her Honour noted, by reference to the comparatives of R v Hesketh; Ex parte Attorney-General3 and R v Fahey,4 that it was common ground that the head sentence ought be three years. Her Honour observed that defence counsel had submitted that the appellant ought to be released on parole immediately. Her Honour then made a number of remarks:(a)“Having regard to your age and the seriousness of this offending, I really do not see [immediate release on parole] as an option”.(b)As to the references, the letter from the appellant’s wife and the appellant’s letter, her Honour said: “I must say that many of them read as though they are submissions in Court rather than documents that speak sincerely to the character of someone who is being written about”.(c)Her Honour said that the psychiatrist’s report gave no relevant evidence as to how ADHD affects the appellant.(d)Her Honour said that the other medical material was irrelevant.(e)Her Honour said that the reference to the “Lives Lived Well” program was nothing “more than a good start if you, in fact have had a drug dependency or addiction for 10 years”.(f)After observing that the appellant has a law degree, her Honour said: “Mr Bassi, I think you ought to have known better”.
“13 Guilty plea to be taken into account
(1)In imposing a sentence on an offender who has pleaded guilty to an offence, a court—
(a)must take the guilty plea into account; and
(b)may reduce the sentence that it would have imposed had the offender not pleaded guilty.
(2)A reduction under subsection (1)(b) may be made having regard to the time at which the offender—
(a)pleaded guilty; or
(b)informed the relevant law enforcement agency of his or her intention to plead guilty.
(3)When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.
(4)A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—
(a)that fact; and
(b)its reasons for not reducing the sentence.
(5)A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”
Her Honour did not acknowledge the pleas of guilty in her remarks. Consequently, there has been a failure to comply with s 13(3). That is not always fatal. Where a court on appeal can see that the plea was taken into account, the failure to comply with s 13(3) will not necessarily lead to appellate intervention.5
Here, defence counsel made substantial submissions about remorse which were based on extensive material. There was evidence of rehabilitation. The Crown put up a comparative case in which the sentence was less than that which her Honour ultimately imposed and conceded that the comparative involved more serious offending. The guilty plea was material to a consideration of remorse as a factor. In those circumstances, the failure to comply with s 13(3) was a material error because whether, and how, the plea was taken into account is not apparent from her Honour’s sentencing remarks.
Ground 2(a) raises for consideration the admissibility and relevance of the report of Professor Freeman.
Professor Freeman is a psychologist who is registered with the Australian Health Practitioner Regulation Agency and is a member of both the Australian Psychological Society and the APA College of Forensic Psychologists. He holds a Bachelor of Social Science (Psychology) degree, and Honours Degree (Psychology) and a PhD. Professor Freeman’s membership of the College of Forensic Psychologists is explained partly by reason of the fact that his doctoral thesis concerned the rehabilitation of recidivist offenders and the factors that predict the likelihood of further criminal behaviour. He has, accordingly, published nationally and internationally upon those subjects, including papers about factors that influence recidivism, the effect of perceived sanctions and perceptions of risk and the effectiveness of rehabilitation programs.
Professor Freeman has experience working as a clinical psychologist in community mental health programs with individuals who exhibit forensic and psychiatric histories. He is in private practice as a forensic psychologist. He has worked as a consultant forensic psychologist for the Department of Corrective Services and performs assessments for the Coroner’s Court, the Department of Child Safety, the Murri Court and other such institutions. In his clinical practice he has undertaken over 5,000 hours of treatment. He is employed as a professor at the University of Queensland, where he supervises doctoral students.
His expertise to offer the opinions stated in his report was not challenged by the Crown.
Professor Freeman was told by the appellant that he had undertaken primary and secondary schooling in Toronto in Canada as well as earning a Diploma I Computer Networking. He moved with his family to Australia and earned a degree of Bachelor of Laws at Bond University and then completed his practical studies at a Gold Coast law firm. While studying for his law degree, the appellant worked in a variety of jobs. The appellant is married and he and his wife have a nine year old daughter. He has no previous criminal history.
“It is appropriate for persons trained in the field of clinical psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorder. It is not, however, appropriate for them to enter into the field of psychiatry, and in the present case [the psychologist’s] opinion was entirely unsupported by the psychiatric opinion”.32
The second case referred to by the magistrate in Nepi was a decision of a Western Australian District Court judge, Klimoski v Water Authority of Western Australia.33 This was a personal injuries case in which the plaintiff sought to lead evidence from a psychologist who had concluded that the plaintiff was suffering from post-concussion syndrome. After citing two cases in which evidence was admitted about the results of testing by a psychologist, the judge held that the evidence in the case before him went “well beyond conclusions based upon recognised psychological tests … and indeed there was no evidence of any psychological tests having been carried out.” His Honour said that the disputed evidence was “more in the nature of a medical diagnosis” and concluded that “in the absence of authority to the effect that evidence of a diagnosis made by a clinical psychologist is admissible”, the evidence was inadmissible.
It will be noticed immediately that the evidence in R v Peisley was actually held to be inadmissible because it was fundamentally defective. Wood J did not say that the evidence was inadmissible or that it was inadmissible merely because it was given by a psychologist; he said that it “lacked all weight”. In that context it was unremarkable that his Honour observed that psychologists (like all expert witnesses) should not stray into areas for which they were ill-equipped. As to Klimoski, insofar as the judge in that case based his conclusion upon the absence of “authority” for the admissibility of evidence of diagnosis by a psychologist, the ratio of the case is misconceived because the admissibility of such evidence is not a question of law upon which there could be binding authority but a question of fact that a presiding judge must decide, if necessary upon a voir dire.
That was the approach that was adopted by Hampel J in R v Whitbread.34 In that case the issue was whether the Crown’s contention that certain lies told by the appellant evidenced a consciousness of guilt could be answered by the evidence of a diagnosis by a psychologist of a condition called “conversion disorder” which can result in “psychogenic amnesia”. The Crown submitted that the witness was not qualified to express the opinion because he was not a psychiatrist. After referring to several reference works which demonstrated an overlap in this respect between the fields of study of psychologists and psychiatrists, Hampel J said:35
“It is, I think, common knowledge and experience that some psychologists have a greater knowledge and qualifications in the science which is concerned with the mental states and processes of the mind than some psychiatrists. Once the question of medical treatment of mental illness is put to one side there is no reason why a psychologist may not be just as qualified or better qualified than a psychiatrist to express opinions about mental states and processes. It is common experience in both civil and criminal courts for psychologists to be called to express opinions about such processes which include dissociation. In my experience I have not heard an objection taken to the expressions of such opinions by psychologists on the ground that they are not qualified. In my view therefore the respondent's argument to the contrary is misconceived.”
Teague J agreed with Hampel J. Phillips CJ decided that the evidence was inadmissible because it lacked a factual basis, not because of a lack of expertise on the part of the witness.
Professor Freeman’s expertise qualified him to express the opinions in his report. There was no justification to reject its tender.
Apart from Professor Freeman’s opinion evidence, his report contained statements of fact. These were, of course, hearsay evidence. At a trial, it would have been necessary for the appellant to prove any facts which constituted the factual foundation for expert opinions. However, this evidence was not tendered at a trial but at a sentence hearing.
In Queensland, as in other jurisdictions, sentencing judges rely upon hearsay evidence and assertions from the bar table in order to sentence offenders. Proof of facts as in a trial is rarely necessary. Nor would the strict requirement for such proof in all cases aid the due administration of criminal justice because it would make sentence hearings lengthy and expensive. This practice is entrenched in Queensland. Section 132C of the Evidence Act 1977 provides:
“(1) This section applies to any sentencing procedure in a criminal proceeding.
(2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
(3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
(4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
(5)In this section—
allegation of fact includes the following—
(a)information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
(b)information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
(c)information given to the court under the Penalties and Sentences Act 1992, section 179K;
(d)other information or evidence.”
“(1) In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.”
In sentencing an offender, a judge has to make findings of fact about a variety of matters including findings about the offender’s personal circumstances. While particular rules may have to be applied when facts are disputed,36 if a submission is advanced in mitigation about an offender’s personal circumstances and if the asserted facts are not disputed by the Crown, and the offender is not put on notice by some means that the facts put forward in mitigation might not be accepted, an offender is entitled to assume that a sentencing judge will accept the factual submission at face value unless the judge indicates otherwise.37
Professor Freeman’s report contained many undisputed relevant facts concerning the appellant’s personal circumstances. The report proved that the appellant was “heavily [drug] dependent at the time of the commission of the offences”. In our respectful opinion, upon the evidence that was admissible at sentence and which the appellant sought to tender, it was not open for the judge to doubt, as her Honour did, whether the appellant had a drug dependency.38 As has already been observed, the appellant’s drug dependency was directly relevant to the maximum penalty that could be imposed, a factor that s 9(2)(b) of the Penalties and Sentences Act 1992 expressly requires a sentencing judge to take into account. The report also proved that the appellant’s ADHD was causatively linked to his drug dependence because the appellant had attempted to control the symptoms of that condition by using illicit drugs. This is relevant to the extent to which the offender is to blame for the offence, a factor that s 9(2)(d) of the Act requires a judge to take into account. The report also addressed the appellant’s prospects of rehabilitation or, to put it another way, the likelihood of recidivism, a field in which Professor Freeman was undoubtedly an expert and which is made expressly material to sentencing by s 9(1)(b) of the Act.
Having regard to the foregoing, it is unnecessary to consider grounds 2(b) and 3 in the notice of appeal.
At the hearing of this application and appeal we made orders to set aside the sentences and we imposed new sentences. The following are the reasons for those sentences.
The appellant was in possession of a substantial quantity of the drug. Illicit drugs cause enormous damage to society and considerations of denunciation and deterrence rank highly in the exercise of the sentencing discretion.
However, the appellant was drug dependent at the time of the commission of the offences and that fact reduces the maximum sentence for count 1 from 25 years to 20.
Orders
The affidavit of Troy Anthony Smith is admitted into evidence.
Appeal allowed to the extent of: a.setting aside the order that the appellant be released on parole on 22 August 2022.b.ordering that, in relation to all sentences, the appellant be released on parole on 12 October 2021.
The appellant is ordered, pursuant to s 160G of the Penalties and Sentences Act 1992, to report to the Probation and Parole Office at Burleigh Heads between the hours of 9.00 am to 5.00 pm today or tomorrow and obtain a copy of the Court ordered parole order.
All offences against the Drugs Misuse Act 1986. ↩
[2019] QCA 142. ↩
[2004] QCA 116. ↩
[2019] QCA 142. ↩
R v Safi [2015] QCA 13. ↩
Section 9(2)(a)(i) of the Penalties and Sentences Act 1992 (the Act). ↩
Section 9(2)(a)(ii) of the Act. ↩
Clark v Ryan (1960) 103 CLR 486 at 491. ↩
Clark v Ryan, supra, at 502-503 per Menzies J; R v Duncan [1969] 2 NSWR 675; (1969) 90 WN (Pt 1) (NSW) 150 at 155 per Herron CJ, Walsh and Nagle JJ. ↩
(1849) 8 CB 812; (1849) 137 ER 727. ↩
(1963) 3 All ER 808. ↩
(2001) 52 NSWLR 705 at [41]. ↩
At [85]. ↩
R
Bassi [2021] QCA 250
(1960) 103 CLR 486
(2001) 52 NSWLR 705
(2005) 11 VR 472
(2001) 80 SASR 550
(1999) 199 CLR 270
(1991) 56 SASR 114
(2020) 267 CLR 494
By an amended application for leave to appeal, the appellant raised the following grounds:
Her Honour then imposed the sentences set out earlier.
Grounds 1(a) and 1(b) can be considered together. They both allege non-compliance with s 13 of the Penalties and Sentences Act 1992.
Section 13 provides as follows:
The appellant told Professor Freeman that he began drinking alcohol during adolescence. He began binge drinking, on some occasions “I’d drink for five days straight.” In 2020 he was diagnosed with liver damage and reduced his alcohol intake but did not entirely eliminate it. “Now I drink every second day”.
He has been dependent upon cannabis since he was 20 years old. He informed Professor Freeman that he was diagnosed with ADHD when he was in grade 3. As a child he was prescribed Ritalin for this condition but he stopped taking this drug when he began to drink alcohol. In his adulthood, he has attempted to use cannabis to control his ADHD symptoms. He has used MDMA, usually when also drinking.
He began to use cocaine while still in Canada. This evolved into heavy use so that he had to undergo surgical repair of his nasal septum. For a while after arriving in Australia he was unable to get any cocaine but he met a group of people while studying at Bond University and began to use cocaine again. He was using cocaine on a daily basis for the three years before his arrest on the current charges. He accepts that he has a cocaine dependency and there can be no rational doubts that he does.
In Canada the appellant had access to legally prescribed cannabis to treat a serious spinal disorder which caused him pain. He told Professor Freeman that he had attempted to obtain this drug legally here in Australia but was unsuccessful. He turned to illegal cannabis instead to treat his pain.
Professor Freeman had access to a report of another psychologist, Mr Craig Holt, who said that the appellant struggled scholastically because of his ADHD, had been reliant upon cannabis and prescription medication and likely has comorbid psychological disorders, namely ADHD, Cannabis Use Disorder and Stimulant Use Disorder (cocaine in remission).
Professor Freeman reported that the appellant has a “substantial history of substance misuse and dependency that began with cannabis and alcohol dependency and progressed to cocaine addiction”. In Professor Freeman’s opinion, the appellant was likely simultaneously dependent upon all three substances during his adulthood and, relevantly, also at the time of the commission of the offences. He said that, in his opinion, this pattern of drug use was “likely fuelled by” a genetic predisposition (there is a family history of addiction), affiliation with a “pro-drug support network” and the appellant’s own “maladaptive attempts to manage ADHD symptoms”.
In Professor Freeman’s opinion, the appellant is not suffering from any form of Personality Disorder nor does he harbour any aggressive, violent or anti-social tendencies. He formed this opinion upon the basis of the results of a formal testing instrument and by having regard to the absence of any prior criminal history as a juvenile or as an adult.
The fact that the appellant has ADHD was material for at least three reasons. First, according to Professor Freeman, the appellant had a proclivity to engage in self-damaging behaviour because of his ADHD and this was exacerbated by his substance abuse, which made him even more vulnerable to such behaviour. Second, he wrongheadedly used cannabis to alleviate the symptoms of this condition. Third, Professor Freeman says that ADHD is well known to enhance impulsivity and his substance abuse would have exacerbated this tendency.
Professor Freeman’s clinical assessment was that the appellant had Alcohol Dependence (partial remission), Cannabis Dependency, Cocaine Dependency (sustained remission-provisional diagnosis) and ADHD.
Professor Freeman said that the “origins of the current offences can be directly attributed to his polysubstance addictions … alignment with a pro-drug support network that normalised such behaviours and untreated ADHD”. In Professor Freeman’s view, the appellant appears to “have been substantially destabilised and failed to recognise (and respond appropriately) to a range of high-risk situations”. Although, in Professor Freeman’s view, the appellant is “a quite intelligent and high functioning individual”, his decision making “appears to have become increasingly erratic as polysubstance consumption created clinical impairments”.
This assessment of the aetiology of these offences is consistent with the character reference of the appellant’s wife, Nishi Dhaliwal, that was tendered at his sentencing. Ms Dhaliwal said that until her husband’s arrest she had been unaware of the extent of his drug use. She said that he was a person “who had terrible impulse control” and he had “many ambitions and ideas that were not followed through due to poor time management, procrastination and lack of organisation”. She said that they “were disconnected and [she] felt he was turning into a different person. Not the person I married”. She “did not know the signs of drug abuse and thought he was just drinking too much and being inconsiderate”. She said that “this was the result of him neglecting his mental health issues”. These were undisputed objective facts.
Having regard to his formal and practical experience in the field of the assessment of the risks of recidivism in offenders, Professor Freeman offered his opinion about the appellant’s prospects. He noted that the appellant had told him that his plans were to maintain his abstinence from substance use, to become a practising lawyer, to focus on his relationship and his duties as a parent and to avoid contact with his past drug associates. Professor Freeman noted as significant that the appellant completed the practical training component of his legal education after his arrest.
Professor Freeman was aware that, although the appellant had treated his back pain with illegally obtained cannabis, since his arrest he has been prescribed a therapeutic version of the drug. Documentary evidence of this prescription was tendered in evidence. Professor Freeman noted the consequential elimination of this as a factor in recidivism.
In Professor Freeman’s opinion, the appellant’s risk of recidivism was linked with maintaining his abstinence from drug use and avoiding contact with those people who condone such use. He also noted that the appellant’s family, his employment opportunities and his commitment to ongoing treatment are “protective factors”. Professor Freeman concluded that “if [the appellant] can achieve the above outlined goals, [his] prognosis for the future can be considered positive”. Earlier in his report, when referring to the report of Mr Holt, Professor Freeman observed that Mr Holt’s view was that the appellant could be considered in the “low risk category for re-offending”.
Professor Freeman’s report contained much that was relevant to the exercise of the sentencing discretion. The matters in that report concerning the genesis of this serious offending by an intelligent and educated family man who is otherwise of good character are highly material to questions of personal deterrence and, consequently, consideration of whether imprisonment, as a sentence of last resort,6 should be imposed or whether it would be more just to impose a “sentence that allows the offender to stay in the community”, which the Penalties and Sentences Act 1992 prescribes to be the “preferable” sentence.7
The question whether the appellant was likely to reoffend was, obviously, of the highest importance. Professor Freeman’s qualifications particularly suited him to give an opinion about this matter.
The appellant’s drug addiction was relevant in a number of ways. In the circumstances of a drug possession case it was relevant to the degree to which the appellant was “to blame for the offence”, a matter that it is necessary to consider by virtue of s 9(2)(d) of the Act.
Of even greater importance to the sentencing of the appellant, the maximum penalty for the offence for which a person is being sentenced is a fundamental factor in sentencing and s 9(2)(b) of the statute requires it to be considered. Count 1 on the indictment charged an offence against s 9(1)(b) of the Drugs Misuse Act 1986, relevantly, possession of cocaine in a quantity exceeding 2 grams. Section 9(1)(b) of that Act prescribes a maximum penalty of 25 years imprisonment for that offence unless the offender satisfies the court that he or she was a “drug dependent person”, in which case the maximum penalty is reduced to 20 years imprisonment. In this case, whether the appellant was drug dependent arose as an issue and the sentencing judge had to decide it.
The unchallenged evidence of Professor Freeman established that the appellant was only liable to be sentenced for the lesser maximum penalty.
Whether the evidence of a person who is called as an expert witness should be accepted is to be decided according to long established principles which, relevantly, include these:(a)There must be a field of specialised knowledge;8(b)The witness must demonstrate that, by reason of study or experience, the witness is an expert in a particular aspect of that field and this is a question of fact.9
It is this second requirement that is germane to this case. Whatever might be the apparent formal limits of a field of expertise, the knowledge gained from practical experience may also qualify, or further qualify, a person as an expert. Thus, in Vander Donckt v Thellusson,10 it was held that a person, who had carried on a business that required him to become conversant with a particular area of foreign law, was qualified to give evidence about it although he was not a lawyer. In R v Somers11 a general medical practitioner was held to be qualified to give evidence about the rate of metabolization of alcohol in the blood based upon his reading and understanding of technical literature.
As explained by Heydon JA in Makita (Aust) Pty Ltd v Sprowles,12 the expert must:(a)identify the relevant field of knowledge;(b)identify an aspect of that field of knowledge, relevant to the issue in question in the case, in which the witness claims to be an expert;(c)explain the basis for the claim of expertise, whether in study or experience;(d)demonstrate how the asserted field of knowledge, in which the witness claims to be expert by reason of study or experience, and on which the opinion evidence is based, applies to the facts assumed or observed so as to produce the proffered opinion.13
Those are questions of fact the resolution of which depends upon the nature of the evidence in the particular case and the issue to which the evidence is directed.
The admissibility of expert opinion evidence about a person’s mental state was controversial as late as 1965 when, in Toohey v Metropolitan Police Commissioner,14 the House of Lords decided that, just as medical evidence is admissible to show that a witness has a physical disease or abnormality that affects the reliability of the witness’s evidence, such as poor eyesight, so too can medical evidence be led to show that a witness has a mental illness affecting the reliability of the evidence given by that witness.15
In R v MacKenney,16 a case decided in England in 1981, the defence sought to lead evidence from a psychologist to show that the evidence of the principal Crown witness was unreliable because that witness was suffering from a particular mental disorder. The Court of Appeal held that the trial judge’s refusal to admit the evidence was correct. After referring to Toohey v Metropolitan Police Commissioner as authority for the proposition that “Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence”, Lord Ackner said that “The first question that must arise is, was there any medical evidence?” (emphasis in the original).17 His Lordship determined that the proposed expert, a psychologist, had “no medical qualifications” and, as a result, “not being a medical man, he had of course no experience of direct personal diagnosis” and that his “evidence was not medical evidence, and was not admissible”.18
This kind of a priori determination about the admissibility of evidence of psychologists as experts has been experienced in this country also.
In Klimoski v Water Authority of Western Australia,19 a District Court judge refused to admit the evidence of a psychologist that the plaintiff suffered from post-concussion syndrome because it was “more in the nature of a medical diagnosis”. His Honour held that the evidence was inadmissible “In the absence of authority to the effect that evidence of a diagnosis made by a clinical psychologist is admissible”.
In R v Kucma,20 a decision of the Victorian Court of Appeal, Batt JA held that a psychologist could not give evidence that an accused was “suffering from a mental impairment” within the meaning of s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) because the “relevant field is psychiatry”.21 Eames JA observed that the question had not been the subject of detailed argument and that it would have to be decided at any retrial. His Honour expressed the view that the issue was not beyond argument.22
However, evidence of a diagnosis by a psychologist has been admitted in numerous cases, including in Queensland: Trudgett v Commonwealth of Australia:23 post-traumatic stress disorder; R v SCZ:24 post-traumatic stress disorder and major depressive disorder; R v Nguyen:25 untreated major depressive disorder; R v Runjanjic:26 battered woman syndrome; R v Forde:27 neurotic personality; Caldwell v Caldwell:28 post-traumatic stress disorder; and DPP v Sokaluk:29 autism spectrum disorder.
In our respectful opinion, the question whether evidence of a psychologist’s diagnosis is admissible as expert evidence has to be decided on a case by case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist. The admissibility of the evidence will depend entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact.
This was the approach taken by Martin CJ in Nepi v Northern Territory.30 At a trial in the Magistrates’ Court a magistrate had ruled inadmissible a psychologist’s opinion that the appellant was suffering from post-traumatic stress disorder. The psychologist had expressed the opinion that the symptoms related to him by the appellant met the criteria for that disorder. He had interviewed the appellant twice using a testing instrument. The psychologist had given his occupation as a clinical psychologist with academic qualifications that included a Master’s degree of Science in Psychology. He was a member of relevant professional colleges. He had 30 years of experience in the field including holding senior governmental positions in Australia, New Guinea and Scotland. He had established an acute psychiatric unit at the Tamworth Base Hospital. He had direct experience of treating PTSD including work with the Department of Veterans’ Affairs treating Vietnam veterans, as well as work with prisoners and children who had been referred to him for diagnosis and treatment. When asked whether he considered himself qualified to diagnose PTSD he said that he was and, indeed, had frequently done so as part of his profession. The respondent called no evidence to prove that the psychologist was not qualified to offer his opinions.
Rather than treating the question of admissibility as one of fact, the magistrate relied upon two cases as authority for the proposition that the proffered opinion was inadmissible. The first of these was R v Peisley.31 The appellant had been convicted of murder and appealed on the ground that the trial judge had erred in refusing to let the defence of provocation go to the jury. That appeal was dismissed. The appellant abandoned an appeal against sentence at the hearing but, nevertheless, Wood J observed, obiter dictum, that a report of a psychologist tendered during sentencing “lacked all weight” because it suffered from two defects. First, the psychologist’s purported “test results were nothing more and nothing less than the history given by the appellant”. Second, the psychologist had “entirely omitted from account earlier incidents” that were highly significant. It was in that context that Wood J said:
The appellant’s pleas of guilty were indicated early. Indeed, he accepted responsibility for the drugs during the search of his premises. In our view, the pleas of guilty demonstrate not only a willingness to cooperate with the administration of justice but they also show true remorse. That is supported by the appellant’s rehabilitative attempts as well as by the content of the various testimonials that were tendered.
The appellant asserted to the police at the time of the search that the drugs were not possessed for a commercial purpose. He accepts that he was not truthful to police in that respect. However, we accept the undisputed explanation given to the sentencing judge as to the intended sale of the drugs at the bucks party. It follows that the commercial purpose was a limited one. The appellant has not been charged with supply and he has certainly not been charged with or convicted of trafficking.
The appellant has taken steps towards rehabilitation. He has completed studies and, apart from the matters the subject of this appeal, appears to have created a stable and conventional life. He has no prior criminal history.
Various comparative sentences have been cited to us. We agree with the concession made by the Crown prosecutor at first instance that Fahey is a relevant comparative and that it shows a case that is more serious than this one. The recent decision of this Court in R v Hawke39 demonstrates that cases can arise in which sentences should be imposed which involve no period of actual custody or a very short period of custody even when an offender possesses a substantial quantity of a schedule 1 drug. This is such a case.
There is no reason to interfere with the head sentence of three years. Such a head sentence reflects the seriousness of the offending. The appellant was in custody now for about two months. The appellant’s particular personal circumstances that led to his commission of these offences, his early pleas, his remorse, his substantial rehabilitation and rebuilding of his life, his good future prospects and the limited scope of his offending all tend to sustain a conclusion that further incarceration would not serve the community’s interest. For these reasons we made the following orders at the hearing of this application and appeal.
[1965] AC 595. ↩
Supra, at 608 per Lord Pearce. See also R v McEndoo (1981) 5 A Crim R 52 and R v Barry [1984] 1 Qd R 74. ↩
(1981) 76 Cr App R 271. ↩
Supra, at 274. ↩
Supra, at 275. ↩
(1989) 5 SR (WA) 148. ↩
(2005) 11 VR 472. ↩
Supra, at [26]. ↩
Supra, at [57]. ↩
[2006] NSWSC 575 Bell J. ↩
[2018] QCA 81 Morrison and Philippides JJA and Davis J. ↩
[2015] QCA 205 Fraser and Gotterson; Dalton J, contra. ↩
(1991) 56 SASR 114 King CJ, Legoe and Bollen JJ. ↩
(1986) 19 A Crim R 1. ↩
[1996] NSWCA 88. ↩
[2013] VSCA 48. ↩
[1997] NTSC 153. ↩
(1990) 54 A Crim R 42. ↩
Supra, at 52. ↩
(1989) 5 SR (WA) 148. ↩
(1995) 78 A Crim R 452. ↩
Supra at 460-461. ↩
See eg R v Olbrich (1999) 199 CLR 270 at [24]; Strbak v The Queen (2020) 267 CLR 494. ↩
R v Lobban (2001) 80 SASR 550. ↩
Sentencing Remarks Transcript page 2.: “… if you, in fact, have had a drug dependency or addiction for ten years”. ↩
[2021] QCA 179. ↩