R v Walsh; R v Little unreported, Supreme Court, 28.2.2005

The Principles to be Applied in Determining the Application 5In determining the application the Court performs an administrative function exercising jurisdiction pursuant to Part 7 of the Act, a jurisdiction which arises only after all criminal proceedings have been finalised, including any appeal proceedings. 6The Court's powers are limited to those conferred by s.79, namely, to direct an inquiry, or to refer the case to the Court of Criminal Appeal. In exercising these powers the test to be applied in the instant case is whether it appears that there is a doubt or question as to any mitigating circumstances in the case, or any part of the evidence in the case. Such a doubt or question will arise where the material before the Court on the application gives rise to a sense of unease or disquiet in allowing the sentence to stand: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251; Application of Victor Makarov pursuant to s.78 of the Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1468.

The History of the Criminal Proceedings 7On 5 February 2004 the applicant entered pleas of guilty to five offences. (1)Manufacturing not less than the large commercial quantity of a prohibited drug (methylamphetamine) contrary to s.24(2) of the Drugs Misuse and Trafficking Act 1985 (count 1), an offence attracting a maximum penalty of imprisonment for life. (2)Supplying not less than the large commercial quantity of a prohibited drug (methylamphetamine) contrary to s.25(2) of the Drugs Misuse and Trafficking Act 1985 (count 2), an offence attracting a maximum penalty of imprisonment for life. (3)Possessing a firearm, being a 12 gauge self-loading gun, without being authorised by license or permit, contrary to s.7(1) of the Firearms Act 1996 (count 12), an offence attracting a maximum penalty of 14 years imprisonment. (4)Possessing a shortened firearm, being a 9mm submachine gun, without being authorised by license or permit, contrary to s.62(1)(b) of the Firearms Act 1996 (count 19), an offence attracting a maximum penalty of 10 years imprisonment. (5)Possessing a prohibited weapon, being an alloy tube silencer, without being authorised by permit, contrary to s.7(1) of the Weapons Prohibition Act 1998 (count 20), an offence attracting a maximum penalty of 14 years imprisonment. 8When the applicant was sentenced in relation to count 19, the possession of the submachine gun, his Honour took into account a further twenty-six offences, the vast majority of which charged the applicant with possession of a firearm of some sort. 9The evidence relevant to the offences which was before the sentencing judge consisted principally of an agreed statement of facts. In brief, the facts established that the applicant manufactured some nineteen kilograms of methylamphetamine between September 1999 and September 2001 in a laboratory he had established in northern New South Wales. The average purity of the drug produced was seventy-five per cent. 10When the applicant's Terranora property was searched by police in September 2001 an amount in excess of half a kilogram of methylamphetamine was discovered, together with precursors and cutting agents, $145,783 in cash, a loaded handgun that was fitted with a silencer, and documentation referring to the manufacture of prohibited drugs. Also found was a set of keys for storage sheds in nearby Tweed Heads. On searching the storage sheds, a clandestine laboratory was found by police, in which were very large amounts of chemicals, and all of the equipment necessary to convert the chemicals to methylamphetamine. A quantity of firearms and weapons were also found in the sheds. 11In the two year period between September 1999 and September 2001 the applicant had sold the nineteen kilograms of methylamphetamine that he had manufactured to Richard Walsh, a member of an outlaw motorcycle gang, at a price of between $50,000 and $60,000 per pound. The monies paid by Walsh to the applicant in that period thus amounted to between two and two and a half million dollars. 12Howie J concluded that the applicant had engaged in a commercial criminal enterprise to manufacture amphetamine for the purpose of supply over a significant period of time. 13For various reasons unconnected with the court, there was some delay in the imposition of sentence, with sentence eventually passed by Howie J upon the applicant on 28 February 2005: R v Walsh; R v Little (unreported decision of the Supreme Court), 28.2.2005. The sentence imposed for count 1, the manufacturing offence, was one of 22 years imprisonment to date from 24 September 2001. A non-parole period of 16 years and 6 months was specified, with the earliest release date being 23 March 2018. The sentences imposed for all other offences were subsumed in that sentence, with his Honour concluding that, whilst some accumulation would ordinarily have been warranted, the principle of totality dictated wholly concurrent sentences given the length of the sentence imposed for count 1. 14The applicant sought leave to appeal against the sentence imposed upon him by Howie J, with the matter coming before the Court of Criminal Appeal on 15 August 2006: Walsh v The Queen; Little v The Queen (2006) 168 A Crim R 237. Three grounds were advanced, although only two grounds were ultimately argued at the hearing of the appeal. The ground which was not pressed before the Court was a complaint that "the sentencing judge erred in his treatment of evidence of the additional hardship of custody to the applicant". This is of some interest, since this is the point that the applicant now seeks to advance. 15Complaint was also made about the sentencing judge's characterisation of the level of the applicant's criminality, and the purported manifest excess of the sentence imposed. The applicant was represented by very experienced Senior Counsel. 16Referring to the arguments advanced by the applicant in support of the two grounds that proceeded, Grove J (with whom McColl JA and James J agreed) observed that, "it is obvious that the chemist who brings a drug into existence is culpable to a high degree" (at 247), and the conclusions of the sentencing judge as to the applicant's criminality were entirely justified. The Court noted that there was no reason to determine that Howie J had failed to adequately take the applicant's subjective case (which included evidence of his psychiatric condition) into account. Leave to appeal was granted, but the appeal was dismissed.

The Present Application 17In support of his Part 7 application the applicant relies upon "new" evidence obtained in November 2013 as to his psychiatric condition at the time of sentence. The applicant asserts that the new evidence establishes that, because of his psychiatric illness, his experience of a custodial environment has been and remains more distressing and arduous than that of prisoners who are not so affected. The applicant further asserts that the sentencing judge was in error in declining to find that special circumstances existed pursuant to s.44(2) of the Crimes (Sentencing Procedure) Act 1999, such that the usual ratio of sentence was not varied in the applicant's favour. 18The applicant submits that the asserted error in this regard by the sentencing judge, coupled with the recent opinion as to the applicant's psychiatric condition, is such as to give rise to a doubt or question as to a mitigating circumstance in the case or to part of the evidence in the case, justifying referral of the matter to the Court of Criminal Appeal pursuant to s.79(1)(b) of the Act. 19Thus there are two bases to the application before the Court. The first relies upon the recently obtained psychiatric opinion of Dr. Nielssen to ground a submission that there is a doubt or question as to a mitigating circumstance or evidence in the applicant's case. The other raises error on the part of the sentencing judge in failing to make a finding of special circumstances on the basis of the applicant's mental health, and the applicant's consequent experience of a custodial environment.

The "New Evidence" 20The evidence said to be newly available to the applicant consists of a report from Dr. Olav Nielssen, a forensic psychiatrist, dated 28 November 2013. Since the Part 7 application is not subject to the principles relevant on appeal to "fresh" or "new" evidence in the sense discussed in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417, when and how the evidence was obtained by the applicant is not a relevant consideration. 21Dr. Nielssen was asked by the applicant to conduct an assessment of the applicant's psychiatric state and provide a report setting out the doctor's conclusions. 22Dr. Nielssen interviewed the applicant via an audio-visual link in October 2013. He obtained a history from the applicant, which included an assertion of innocence of the offence of manufacturing a prohibited drug (an assertion the applicant does not seek to rely upon in the present application). The applicant told Dr. Nielssen that he had been "schizzing out" at around the time of his arrest, and had become depressed when incarcerated. He said that he had never been admitted to a psychiatric hospital, including within the prison system, with Justice Health having considered the applicant's admission to a psychiatric facility, but deciding against it due to the control of his illness through medication. 23Having obtained a history, and after reviewing the Justice Health file and other medical records, Dr. Nielssen concluded that psychosis emerged in the applicant in January 2005, that being around the time of his arrest. The applicant had a history of taking illicit drugs in the months prior to the manifestation of psychotic symptoms, and it appears that it is at least possible that the symptomatology was drug-induced. After the manifestation of symptoms, the applicant was treated with olanzapine, an anti-psychotic medication which, on regular psychiatric review in 2006, 2008, 2009 and 2010, was regarded as effective. A more recent review in September 2012 had concluded that the applicant's psychosis was well-controlled, and a schizophrenic illness was stable. 24His review of the documentation and the reported presence of symptoms of psychosis in the period preceding sentence led Dr. Nielssen to conclude that illness "might" have affected the applicant's ability to participate in his sentence hearing. 25It was Dr. Nielssen's opinion that the applicant suffered from chronic schizophrenia in remission (or, alternatively, a drug induced psychosis), a substance abuse disorder, also in remission, and an anxiety disorder. This last disorder was linked to the claustrophobia that the applicant has suffered since being trapped for a period of time under fallen form work in his teenage years. This feature was well-known at the time of sentence and was taken into account by the sentencing judge. 26The most critical part of Dr. Nielssen's report is as follows. "[...] the notes show that Mr. Little has a distressing form of anxiety disorder that is specifically related to the effects of enclosed spaces, and hence is made worse by the circumstances of his imprisonment. His level of distress is confirmed by his frequent presentations to the prison clinics with anxiety symptoms. His symptoms have made his experience of imprisonment more distressing and arduous compared to prisoners who are not affected by that condition".

The Question of Error by the Sentencing Judge 27Although the report of Dr. Nielssen or any opinion consistent with the doctor's was not available to the sentencing judge, the applicant submits that Howie J was, in any event, in error in the way that he approached the evidence of the applicant's illness. It is contended that his Honour should have made a finding of special circumstances on the basis of the more onerous conditions of custody applicable to the applicant by reason of his illness, there being no requirement that a reduction in the non-parole period could only be made where a longer parole period was necessary to facilitate rehabilitation.

Consideration 28Having considered all of the material relied upon by the applicant in support of his Part 7 application, together with his submissions and those of the respondent, I am not left with a sense of disquiet or unease at the sentence imposed upon the applicant. 29Although the applicant relies upon the opinion of Dr. Nielssen as new and significant evidence, it does not seem to me to have the force that the applicant asserts it has. Whilst Dr. Nielssen's opinion was not available to the sentencing judge in February 2005, there was a quantity of medical evidence before Howie J, from which arose the question of special circumstances. Having considered the medical evidence, his Honour concluded that, whilst the applicant's circumstances were such that there was a basis to conclude time spent in custody would be more oppressive than for the average prisoner, no lesser sentence could reflect the gravity of the applicant's crimes than that which was imposed. That conclusion was well open to his Honour. 30Dr Nielssen's 2013 report adds little or nothing of significance to the evidence that was before the sentencing judge, and is not such as to give rise to a sense of unease at the sentence imposed. 31Tendered to the sentencing court in 2005 was a report from Ms. Duffy, psychologist, of 29 November 2004, and two reports from Dr. Buckland, a general practitioner regularly consulted by the applicant, dated 24 January 2005 and 11 February 2005. That material raised the issue of the applicant's mental health, with both Ms. Duffy and Dr. Buckland referring to the applicant's apparent anxiety disorder, with associated claustrophobia and obsessive somatic complaints. 32There was evidence of the applicant's "disturbed conduct" and paranoid thoughts whilst on remand. Although his Honour could not determine whether these behavioural manifestations were indicative of increased levels of anxiety pending sentence, or of "some more substantial disorder", the sentencing judge was plainly aware of, and took into account, the fact that the applicant was likely to find prison more burdensome than others might. "This material of course is relevant to a submission that prison may be more burdensome for Mr. Little because of his anxiety disorder and its effect on him and, therefore, that some mitigation should be made of the otherwise appropriate sentence": R v Walsh; R v Little per Howie J at [41]. 33Despite his recognition of this feature of the matter, and of its potential significance, his Honour did not apportion it great weight in the sentencing exercise. "Of course, the weight that can be given to such a matter depends upon the seriousness of the conduct for which punishment is to be imposed and the importance of other sentencing considerations, such as denunciation and general deterrence. In my view it can be given little weight in the present case" (at [41]). 34His Honour went on to discuss the great gravity of the applicant's crimes. 35His Honour did not overlook or misunderstand the evidence relating to the applicant's psychiatric condition or its probable consequences; rather, he was fully cognisant of those matters, but determined that little weight should be accorded to them, having regard to the serious criminality of the applicant's crimes. The determination of the totality of criminality and of the structure of a sentence to be imposed are matters within the discretion of the sentencing judge: Fitzpatrick v R [2010] NSWCCA 26 at [3]. 36The sentence to be imposed upon an offender must give effect to a number of sometimes competing considerations. It must reflect the overall criminality of the offences and adequately punish the offender; it must be capable of addressing general and specific deterrence where appropriate (as here), and of denouncing the conduct. It must protect the community, and recognise the harm done; as well as giving due weight to an offender's subjective circumstances, and to the promotion of his or her rehabilitation. 37The non-parole period specified by the sentencing judge is the minimum period of time an offender must spend incarcerated in a prison having regard to those elements. 38Simply because there are features that are capable of constituting special circumstances does not require a court to make a finding of special circumstances and reduce the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [19]; Caristo v R [2011] NSWCCA 7 at [30]. 39In the applicant's case, the sentencing judge clearly took the view that the criminality to be comprehended by the sentences imposed was so substantial that no reduction in the ratio of sentence could be accommodated, without causing the sentence to fall short of what was required in all of the circumstances. That conclusion was open to his Honour and is not reflective of some misapprehension of the nature and likely consequences of the applicant's psychiatric disorders. 40Nothing in Dr. Nielssen's 2013 report leads me to conclude that the sentence imposed by his Honour, even in circumstances where his Honour did not have the benefit of the recent evidence, is such as to give rise to a sense of unease. Whilst Dr. Nielssen opines that the applicant has and will find his time in custody arduous and distressing, in a way other prisoners without his disorder would not, the sentencing judge was well aware of that likelihood; he simply declined to give it any particular weight. 41The applicant submitted that his Honour was in error in the approach he took to the medical evidence and in his refusal to make a finding that special circumstances exist. An application pursuant to Part 7 of the Act is not dependent upon establishing error on the part of the judge at first instance, and it is not the function of the Court in considering such an application to determine whether the criminal proceedings were infected by error. 42However, for what it is worth, I see no error in the way in which his Honour approached his task. The conclusions he reached were well open to him on the evidence, and his approach to the issue of special circumstances was consistent with authority. The scope of the considerations relevant to a finding that special circumstances exist encompasses all those issues relevant to the determination of the period of actual imprisonment, including the need for the non-parole period to adequately address the criminality of an offence. 43Although the ability of the applicant to properly participate in the sentence proceedings before his Honour was raised by the applicant, there is no basis to conclude that the proceedings were irregular for this reason. Dr. Nielssen's suggestion that the applicant "might" not have been able by reason of his disorder to fully participate in the sentence proceedings does no more than raise a possibility that is not borne out by the evidence relating to the sentence hearing. 44The contemporaneous medical and psychological reports that were tendered to his Honour on the applicant's behalf did not raise the issue of the applicant's capacity to participate in the proceedings. The hearing was conducted in a manner inconsistent with any legitimate concern in this regard, in that the applicant's then counsel appeared to have no difficulty in obtaining instructions from the applicant, and the applicant was able to agree to the accuracy of the facts presented against him. He made a rational and responsive request of the Court to take into account twenty-six other offences that were before the Court by way of a Form 1 document. Senior counsel who appeared for the applicant on the appeal to the Court of Criminal Appeal (and who expressly abandoned the ground relating to illness and special circumstances) similarly could have had no concerns about the applicant's capacity to provide cogent instructions. 45Dr. Nielssen himself refers to the fact that the applicant had received appropriate medication for the symptoms of psychosis that manifested after arrest and when he was on remand awaiting sentence. This in itself points to the likelihood that the applicant's condition was stable at the time of sentence. 46Since no reference is made to it in the material, and it is apparent that Justice Health records were inspected by Dr. Nielssen, I infer that there was nothing in the contemporaneous medical files that raised the applicant's capacity to participate in the court proceedings pending against him. 47This matter does not give rise to unease as to the sentence.

Conclusion 48The offender's crimes were very grave, involving significant criminality that attracted substantial financial profit. His crimes called for condign punishment. Although it was open to the sentencing judge to impose a measure of accumulation in sentencing, he did not. Particularly in circumstances where the applicant was dealt with for three firearms and weapons charges, with a further twenty-six such matters taken into account, this alone represents a not insignificant measure of leniency inherent in the structure of the sentences imposed by Howie J. 49Whilst the overall sentence may be regarded as a stern one, the Court of Criminal Appeal has already considered a complaint of manifest excess, and dismissed the applicant's appeal. 50There is nothing in the matters put before the Court by the applicant in support of his Part 7 application that leads to the sort of unease at the sentence imposed by Howie J that would demand a referral of the matter to the Court of Criminal Appeal pursuant to s.79(1)(b) of the Act to be dealt with as an appeal under the Criminal Appeal Act 1912. 51The application is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2014