Zaki v R

Judgment 1HOEBEN JA: In this matter I agree with the orders proposed by Fullerton J and with her Honour's analysis of the effect of the report of Dr Nielssen of 6 December 2011. The report provides no principled basis for this Court interfering with the sentence imposed on the applicant. 2Regrettably, I disagree with that part of her Honour's judgment which would admit the report of Dr Nielssen. While it is necessary for this Court to read the report so as to determine whether one of the recognised bases for admissibility has been established, having done so I am not so satisfied. In par [20] Fullerton J has helpfully set out the exceptions to the general rule that evidence of facts existing at the time of sentencing, is not received when that evidence could have been discovered by the exercise of reasonable diligence. The report of Dr Nielssen does not come within any of those exceptions. 3In my opinion, it is not sufficient for the admission of that report that it provides an insight into the applicant's mental health which was a matter agitated at the sentence hearing, but not fully explored. More needs to be established before such a report should be admitted in sentence proceedings. 4RS HULME J: I agree with Hoeben JA and, subject to his Honour's remarks, with the reasons of Fullerton J. I agree also with the orders proposed by Fullerton J. 5FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 31 March 2011 after he pleaded guilty in the Local Court to two counts of deemed supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. 6After taking into account the principle of totality, the sentencing judge imposed an aggregate head sentence of 3 years and 6 months with a non-parole period of 2 years which is due to expire on 15 August of this year. In respect of the first supply count, a non-parole period of 1 year and 6 months with a balance of term of the same length was imposed. The second count attracted a fixed term of 12 months, partly accumulated on the first count. That sentence commenced on 16 August 2010 and expired on 15 August 2011. 7The first count concerns the applicant's possession of 8.95 grams of methylamphetamine in five separate bags which, together with a small amount of cannabis, some money, a credit card in the name of another person and various items of drug paraphernalia, were located by police in a black bag in the applicant's car when it collided with a pole in the early morning of 25 October 2009. He was taken to hospital after the accident and was treated for injuries (including head injuries) where he remained until 10 November 2009. The statement of agreed facts records that upon admission tests confirmed the presence of methylamphetamine in his blood at 0.17mg/L. Unsurprisingly, this was reported by a pharmacologist to have substantially impaired his capacity to drive a motor vehicle. 8On 17 November 2009, after the applicant's release from hospital, he attended Marrickville police station where he was arrested and charged and then released into the care of his brother. A court attendance notice was served on 7 December 2009 charging him with possession of the 8.95 grams of methylamphetamine (the subject of the first supply count), together with other charges relating to the other items in the black bag which were taken into account on a Form 1 when the sentence on the first supply count was imposed. 9In unrelated sentence proceedings before the Local Court on 6 July 2010 the applicant was placed on a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for two counts of possessing a prohibited drug on 16 January 2010. That offence was committed whilst he was on bail for the offences the subject of the first count. The sentencing judge also noted that the applicant was subject to that bond when, on 16 August 2010, he was arrested in possession of 3.07 grams of methylamphetamine after police observed him sitting in his car in an area in Camperdown notorious for drug related activity. Those drugs were the subject of the second supply count. 10The head injuries the applicant sustained in the accident in October 2009 and his addiction to drugs dating from 2007 were considered in a report by Dr Nielssen, forensic psychiatrist, dated 6 December 2011 and in a supplementary report of 7 February 2012. Both reports were obtained after sentence and were tendered on the appeal in support of the applicant's contention that a miscarriage of justice resulted from the failure on the part of his legal representatives to obtain evidence of his psychiatric condition for use in the sentence proceedings and, that on re-sentence, this Court would reduce the sentences imposed having regard to that evidence. This was the only ground of appeal. 11The Crown objected to the tender of the report on the basis that they did not constitute fresh evidence and, if admitted, would not justify any reduction in sentence. 12In his report of 6 December 2011, Dr Nielssen made the following diagnoses: