R v Clark [2017] QCA 318

SUPREME COURT OF QUEENSLAND

CITATION: R v Clark [2017] QCA 318

PARTIES: R v CLARK, Robert John (applicant)

FILE NO/S: CA No 159 of 2017 / DC No 385 of 2016

DIVISION: Court of Appeal

PROCEEDING: Sentence Application / Application to adduce further evidence

ORIGINATING COURT: District Court at Townsville – Date of Sentence: 19 June 2017 (Lynham DCJ)

DELIVERED ON: Orders delivered ex tempore on 8 November 2017 / Reasons delivered 22 December 2017

DELIVERED AT: Brisbane

HEARING DATE: 7 November 2017

JUDGES: Fraser and Philippides and McMurdo JJA

ORDERS: Orders delivered ex tempore 8 November 2017:

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to one count of fraud in excess of $30,000 – where the applicant used the credit card of the complainant, who was his housemate, while the complainant was deployed overseas to Afghanistan – where the sentencing judge characterised the applicant’s fraudulent conduct not as motivated by need but was to enable him to live a better life – where the applicant sought to adduce further evidence in the form of an affidavit of his psychologist – where the psychologist opined that the applicant was suffering from untreated post-traumatic stress disorder caused by his military service in East Timor at the time of his offending – where the applicant deposed to using alcohol to self-medicate to help him cope with his symptoms – where no evidence of the applicant’s mental disorder was before the sentencing judge as a result of the applicant being unable to afford a psychological assessment – whether the sentencing discretion should be re-exercised to take account of the applicant’s mental disorder as detailed in the further evidence / R v Jeffree [2010] QCA 47, considered / R v La Rosa; Ex parte Attorney-General (Qld) [2006] QCA 19, considered / R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied / R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, applied / R v Miles [2006] QCA 556, considered / R v Parish (2012) 223 A Crim R 1; [2012] QCA 112, considered / R v Robinson; Ex parte Attorney-General (Qld) [2004] QCA 169, considered / R v Spina [2012] QCA 179, applied / R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, applied

COUNSEL: J Greggery for the applicant / M T Whitbread for the respondent

SOLICITORS: Purcell Taylor for the applicant / Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Philippides JA.

PHILIPPIDES JA: On 8 November 2017, the Court delivered the following orders:Grant the application to adduce the evidence in the affidavits of Robert John Clark filed 9 October 2017, Robert Zemaitis filed 9 October 2017 and Andrew Peel filed 26 October 2017.Grant the application for leave to appeal against sentence.Allow the appeal.Vary the sentence imposed on 19 June 2017 by ordering that it be suspended forthwith.

My reasons for joining in the making of the orders follow.

Background

The applicant pleaded guilty to one count of fraud in excess of $30,000 ($43,789.05) between 16 August 2009 and 5 February 2010. He was sentenced on 19 June 2017 to two years and six months’ imprisonment, to be suspended after serving nine months for an operational period of three years. One day of pre-sentence custody was declared as time served under the sentence.

The circumstances of the offending were, that during that period, the applicant used the credit card of the complainant, his housemate, for some 140 transactions for his own purposes. The offending occurred while his housemate, a soldier, was deployed overseas in Afghanistan and was not discovered until 2 March 2010, shortly after the complainant’s return from Afghanistan.

In sentencing the applicant, the sentencing judge characterised the applicant’s fraudulent conduct as “not motivated by what is sometimes described as need” but seemingly “to enable [him] to live a better lifestyle”.

The applicant sought leave to adduce further evidence in support of his application for leave to appeal the sentence. It was submitted that the further evidence revealed that the sentence imposed was manifestly excessive. The applicant’s submission was that the sentence should be suspended after serving 141 days, that is, immediately from the date of the hearing of the appeal.

The application to adduce further evidence

The applicant’s application for leave to adduce further evidence concerned the affidavits of Robert John Clark filed 9 October 2017, Robert Zemaitis, a psychologist, filed 9 October 2017 and Andrew Peel filed 26 October 2017.

The further evidence

The report of Mr Zemaitis, which was annexed to his affidavit, was obtained after the applicant was sentenced. In his report, Mr Zemaitis diagnosed the applicant’s psychological state at the time of the sentence and at the time of the commission of the offence.

Mr Zemaitis’ report was compiled after having assessed the applicant at the Lotus Glen Correctional Centre, including taking a detailed history and conducting a Trauma Symptom Inventory. He also obtained further information from the applicant’s family, a close friend and a work supervisor. It was not disputed that the information conveyed to Mr Zemaitis relating to the factual matters in the report were true and correct.

In his report, Mr Zemaitis provided his professional opinion that the applicant suffered from Post-Traumatic Stress Disorder (PTSD) at the time of his offending, which was chronic in nature and arose from his experiences in East Timor in 2007. In particular, he opined that the applicant was suffering from classical symptoms consistent with a diagnosis of chronic PTSD, which resulted from the applicant’s service in East Timor and had remained untreated.

The applicant reported to Mr Zemaitis that he tried to drink to become so drunk that he passed out because he “didn’t want to remember [his] memories of East Timor”. Mr Zemaitis referred to the relationship between the applicant’s mental disorder and his offending by observing that the offending involved having spent about $30,000 on the purchase of alcohol. Mr Zemaitis opined that for a lengthy period and particularly leading up to the period of his offending behaviour between 16 August 2009 and 5 February 2010, the applicant used alcohol to self-medicate and to help him to cope with his PTSD symptoms.

Mr Zemaitis stated that the applicant would benefit from comprehensive treatment, including consultations with a general practitioner, psychological counselling, consultations with a psychiatrist experienced in treating military personnel suffering from PTSD and referral to a specialist PTSD course offered by the Townsville Mater Hospital. Mr Zemaitis considered that the applicant was at a low risk of reoffending since his condition had been diagnosed, pointing to his willingness to engage in treatment, his positive employment history since being discharged from the Australian Army and the support provided by his wife and parents.

The granting of leave

It was not entirely clear that the evidence was fresh evidence. However, as recognised in R v Spina,¹ even where the evidence in question is not fresh in the sense that it did not exist at the time of trial, or could not then with reasonable diligence have been discovered, this Court retains a residual discretion in exceptional cases to admit new or further evidence where refusal to do so would result in a miscarriage of justice. That position confirms the view stated in R v Maniadis that:²

“… a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh … if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive.”

The applicant submitted that the further evidence concerned evidence of his psychiatric condition which was relevant to the sentencing discretion in accordance with the decision of R v Yarwood,³ where the following propositions stated by the Victorian Court of Appeal in R v Tsiaras⁴ were adopted:

“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”

The applicant contended that the further evidence established a causal link between his psychological condition and his offending and that, had the further evidence been placed before the sentencing judge, the applicant would arguably have been sentenced to a lesser term of actual imprisonment. The applicant submitted that the further evidence was corroborated by, or at least consistent with, the pattern of the fraudulent spending summarised in the schedule of facts tendered by the prosecution at sentence. The prosecutor submitted:⁵

“[T]he purchases detailed in that schedule essentially comprise of a significant amount of ATM withdrawals from licensed venues up to $1000, which your Honour might appreciate would probably be the maximum daily limit withdrawal for that particular card.”

In the present case, it was submitted that the applicant’s impecuniosity meant he was unable to fund a psychological assessment of his mental condition.⁶ The public interest in a single trial and the need to discourage withholding of evidence to obtain a new trial⁷ were not present in this application for leave to adduce further evidence and leave to appeal the sentence.

On the basis of the applicant’s submissions, it was appropriate for leave to be granted to adduce the further evidence.

Re-exercise of the sentencing discretion

On the basis of the further evidence adduced and admitted, this Court is entitled to re‑exercise the sentencing discretion afresh,⁸ it not being necessary to find that the original sentence was manifestly excessive.⁹

The applicant was 26 years old at the time of his offending and 33 years old when sentenced.

He had no relevant criminal history but had been discharged from the Australian Army on disciplinary grounds for conduct which appeared to be similar in its nature and its motivation. Following his discharge on 26 September 2013, however, he obtained employment in various capacities and, prior to sentence, he was employed as a recruitment employment coordinator.

Notwithstanding periods of separation caused by the strain associated with the applicant’s discharge from the Army, the applicant’s marriage continues. There are two daughters from that marriage, aged five and three years, and his wife has two children from her first marriage, who are aged 15 and 12.

It was not disputed that the sentence imposed upon the applicant at first instance properly reflected the matters in mitigation known to the sentencing judge. These included the applicant’s plea of guilty, which reflected some cooperation and remorse, the lack of sophistication to the offending, his contribution as a serving member of the Australian Army over a period of more than 11 years, his employment since being discharged and his role as the primary provider for his family.

However, the applicant submitted that the application of the principles affirmed in Yarwood to his circumstances ought to operate to reduce the appropriate sentence on the re-exercise of the discretion by this Court. In that regard, it was submitted that the applicant’s moral culpability was less than the assessment made by the sentencing judge because there was a causal relationship between the offending and the applicant’s mental condition. It was argued that that aspect also reduced the extent to which there was a breach of his housemate’s trust. On the basis of Mr Zemaitis’ evidence, the applicant’s conduct should be considered to be a continuation of the impact of his PTSD rather than a reflection on his character.

In advancing those submissions, the applicant referred to R v Parish.¹⁰ That case concerned a 34 year old offender with no criminal history, who committed four instances of fraud causing a loss of $78,680.29. No restitution was offered and no order for restitution was made. On appeal, the sentence of three years’ imprisonment with a parole release date after serving 12 months’ imprisonment was reduced to grant the applicant parole after serving eight months imprisonment. The appeal was allowed on the basis that the sentence imposed at first instance did not give sufficient recognition to the applicant’s psychiatric condition.¹¹

The applicant also submitted that the present case did not concern fraudulent conduct involving a breach of trust of an employer by an employee. Each of the decisions relied on at sentence of R v La Rosa; ex parte A-G (Qld),¹² R v Robinson; ex parte A-G¹³ and R v Miles¹⁴ involved substantial breaches of trust and the statements of principle made in those cases reflected that factual context. The aggravating nature of such breaches of trust was reviewed in R v Jeffree,¹⁵ which, it was argued, illustrated the contrast between such cases and the applicant’s offending.

It was undoubtedly true that the applicant took advantage of the arrival of the complainant’s credit card at the house but it was submitted that that conduct was to be seen as opportunistic and primarily motivated to further his attempts at self-medication by becoming intoxicated to the point where he shut out intrusive memories and flashbacks associated with his PTSD. As the applicant contended, the circumstances of the present case are such that the applicant ought not to be required to serve any further period of actual custody beyond the 141 days served from the date of the hearing.

In those circumstances, it was appropriate to allow the appeal against sentence and to suspend the sentence imposed on 19 June 2017 forthwith.

McMURDO JA: I agree with Philippides JA.

Footnotes

1. [2012] QCA 179 at [32] and [34] per McMurdo P, with whom Fraser JA and Wilson AJA agreeing. ↩

2. [1997] 1 Qd R 593 at 597 per Davies JA and Helman J. ↩

3. (2011) 220 A Crim R 497; [2011] QCA 367 at [22]-[34] per White JA, with whom Fraser JA and North J agreed (citations omitted). ↩

4. [1996] 1 VR 398 at 400 per Charles and Callaway JJA and Vincent AJA. ↩

5. AB at 20.25-20.27. ↩

6. AB at 27.01-27.09. ↩

7. R v Spina [2012] QCA 179 at [32]. ↩

8. R v Maxfield [2002] 1 Qd R 417 at [7] although Her Honour dissented as to the outcome of the appeal, the majority (comprising Davies JA and Fryberg J) would have admitted the evidence in accordance with the principles in Maniadis if it were necessary to do so: see at [15] and fn 6. ↩

9. [2002] 1 Qd R 417 at [7]. ↩

10. [2012] QCA 112. ↩

11. R v Parish [2012] QCA 112 at [38] per Mullins J with whom McMurdo P and Ann Lyons J agreed. ↩

12. [2006] QCA 19. ↩