Zaki v R [2012] NSWCCA 109

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zaki v R [2012] NSWCCA 109 Hearing dates: 03/05/2012 Decision date: 04 June 2012 Before: Hoeben JA at [1] RS Hulme J at [4] Fullerton J at [5] Decision: 1. Leave to appeal is granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - two counts of supply prohibited drug - whether miscarriage of justice resulted from failure by legal representatives to obtain evidence of psychiatric condition for sentence proceedings Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Iglesias v R [2006] NSWCCA 261 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Cartwright (1989) 17 NSWLR 243 R v Goodwin (1990) 51 A Crim R 328 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v MJM [2004] NSWCCA 66 R v P [2003] NSWCCA 298 R v Ryan [2011] NSWCCA 69 R v Smith (1987) 44 SASR 587 R v W [2001] NSWCCA 172 Springer v R [2007] NSWCCA 289; 177 A Crim R 13 Category: Principal judgment Parties: The Crown Antoan Zaki (Applicant) Representation: Counsel: S Dowling (Crown) B Neild (Applicant) Solicitors: Solicitor for Public Prosecutions (Crown) Purcell Felton Lawyers (Applicant) File Number(s): 2009/281453 2010/270830 Decision under appeal Date of Decision: 2011-03-31 00:00:00 Before: King DCJ File Number(s): 2009/281453 2010/270830

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: 1. Substance dependence and abuse disorder, in remission 2. Depressive illness, in partial remission 3. Traumatic brain damage affecting the frontal lobes of the brain. 13He also reported that on examination of the applicant there were no obvious signs of neurological injury including abnormal movements or slowness of speech and no thought disorganisation. The applicant's performance in a screening test for cognitive impairment across a range of cognitive functions, showed no impairment in attention, concentration, registration, recall, verbal fluency, naming of objects or in visuo-spatial skills. 14Based in large part upon information suppled by the applicant, Dr Nielssen expressed the following opinions: The diagnosis of substance abuse disorder is based on Mr Zaki's account of daily or regular use of methamphetamine, cannabis and alprazolam in the years leading up to his arrest, and complications of substance use, including the contribution to anxiety and depression, unemployment, the car accident and the criminal convictions. The disorder is described as being in remission after eighteen months in an environment with reduced access to drugs or sedative medication. The diagnosis of depressive illness is made on the basis of Mr Zaki's account of treatment for anxiety and depression by a psychiatrist over a period of several years, and the history of a serious suicide attempt and a long admission for treatment of depression in the months after the head injury. Depression is a common complication of traumatic brain injury, and is also a predictable consequence of long term abuse of methamphetamine. ... The diagnosis of traumatic brain injury is based on the history of a head injury in a motor vehicle accident resulting in an admission to Royal Prince Alfred Hospital, confirmed by the ambulance records. The head injury would be classified as serious, on the basis of the history of post traumatic amnesia of more than ten days, although he reported that part of that was in a medically induced coma. He reported that he sustained frontal lobe damage and had memory problems after the accident. There was subtle evidence of impairment in frontal lobe function at the time of the recent interview, as he was labile in mood and mildly uninhibited in a way that was consistent with that form of injury. From the information that is available, there would appear to be a causal relationship between his daily use of drugs and his possession of what would have been around two weeks supply of amphetamine. [Dr Nielssen appears to be referring here to the offending the subject of the first supply count.] Moreover, it is likely that he experienced a cycle of substance use complicated by anxiety and depression which he relieved by further drug use. Impairment in social judgment, loss of inhibition and depression following the head injury is likely to have contributed to the second offence. 15It is clear from the sentencing remarks that his Honour was aware that the applicant sustained head injuries in the car accident that gave rise to the charging of the first supply count and that he was admitted to hospital for treatment. There was no evidence tendered on sentence directed to whether the applicant suffered from any neurological dysfunction as a result of the head injuries, or evidence from a forensic psychiatrist that suggested any causal relationship with the second supply offence committed in August 2010. The only reference to the applicant seeking psychiatric intervention of any kind was in a pre-sentence report dated 28 March 2011 where he informed the Probation and Parole officer that he commenced consultations with a psychiatrist after he had attempted self-harm in January 2010 and that he had been seen by both psychological and psychiatric services whilst in prison following his remand after his arrest in August 2010. The Probation and Parole officer also noted that that the applicant had been in receipt of a Disability Support Pension since 2003 due to his depression and anxiety. 16In support of the submission advanced on sentence that the applicant suffered from "mental health issues", and for that reason he was an inappropriate vehicle for general deterrence, the applicant's solicitor relied solely upon a report generated from a general practitioner at a Medical and Dental Centre dated 6 August 2010, ten days before the applicant committed the second supply offence. The report recorded a diagnosis of depression and panic disorders and provided for a pharmacologically based treatment plan. No further assessments and no cognitive behavioural therapy were recommended. The report does not mention any drug abuse or addiction to illicit drugs. The pro forma check list, which comprised part of the tendered report, recorded that the applicant's thinking, perception, cognition, memory, sleep and judgment were normal without any suicidal ideation, but that his attention and concentration levels and anxiety and mood were other than normal. There was nothing in the report which elaborated on the distinction between "normal" and "other than normal". 17In the sentencing remarks his Honour said: [The applicant] has been receiving for some time medication for depression and anxiety. He reported to the Probation and Parole officer that he attempted self-harm in January 2010, prior to the commission of the offences on 16 August 2010, and that he had commenced consultation with a psychiatrist. There is, however, no report before the Court that relates to any psychiatric condition or mental illness concern. I do nevertheless accept that he has suffered depression and emotional turmoil resulting from his divorce, as well as from the collapse of his business. While it is said that he has been seen by both psychological and psychiatric services during his incarceration, there is no report but merely the bare reference to that matter in the pre-sentence report. 18The Crown objected to the tender of Dr Nielssen's reports on the basis that the applicant's legal representatives at sentence being aware of his hospital admission in circumstances where a report from a consultant forensic psychiatrist or neurologist could have been discovered by the exercise of reasonable diligence and therefore not fresh evidence (see R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417). That objection does not dispose of the issue as to whether the Court should receive Dr Nielssen's reports on this application. 19Whether the principled distinction between new evidence and fresh evidence on an appeal against conviction applies in the same or a similar way when an applicant appeals against sentence, was raised without being decided in R v Ryan [2011] NSWCCA 69 at [53]. That question might have been revisited in this case were argument directed to it. It was not. In Ryan RS Hulme J (with whom McColl JA and Hislop J agreed) applied what his Honour recognised as the restrictive approach this Court has taken to the reception of evidence tendered on a sentence appeal when compared with the approach taken to new or fresh evidence on a conviction appeal (see Iglesias v R [2006] NSWCCA 261 at [10] and Springer v R [2007] NSWCCA 289; 177 A Crim R 13). I see no basis for taking a different approach to the reception of Dr Nielssen's reports on this appeal. 20This is not a case that concerns post-sentencing events or post-sentencing conduct which, in an appropriate or exceptional case, may be taken into account when determining whether a different sentence should be imposed. Examples of cases in this category were discussed by McClellan CJ at CL in Springer at [3]. His Honour also recognised there are occasions when evidence of facts existing at the time of the original sentence are received in evidence on the appeal where the offender did not realise their significance at the time of sentence and could not inform his legal advisers of them (R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46]); or evidence of facts or events occurring after sentencing which showed the true significance or provided the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR 587 at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]). 21Although the applicant's counsel did not seek to persuade the Court that Dr Nielssen's reports fell into any particular category of case identified in Springer, it could not be said that the applicant's mental condition was such that he could have failed to appreciate the significance of the matters Dr Nielssen reported upon given his letter to the sentencing judge tendered to supplement his oral evidence, and his demonstrated capacity for giving a reliable history to both Dr Nielssen and the Probation and Parole officer. 22It would appear that counsel relied instead upon the failure of the applicant's legal representatives to appreciate the significance (or the potential significance) of the applicant's head injury, and that this explained their failure to obtain a report from a forensic psychiatrist concerning the applicant's mental health generally. I note that when the sentencing judge raised the lack of a report with the applicant's solicitor she indicated that the Legal Aid Commission would not fund the preparation of a report. There was no affidavit from the applicant's solicitor addressing either of these issues. In addition, there was no evidence on the appeal shedding any light on whether it was the policy of the Legal Aid Commission that reports of the kind referred to would not be funded, or whether the applicant's legal representatives merely believed that a report would not be obtained under the grant of legal aid. Because of the view I have taken of the weight to be attributed to Dr Nielssen's opinion on the causal connection between the head injury and the commission of the second offence, the competence of the applicant's legal representatives does not need to be resolved. I would admit Dr Nielssen's reports on the basis that they do provide insights into the applicant's mental health, a matter agitated at the sentence hearing but not able to be fully explored or accounted for in the sentencing process. 23There are established principles that apply to the calculation of sentence where an offender is suffering from mental illness, an intellectual handicap or other mental problems (see Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]). It was not submitted that Dr Nielssen's reports would have supported a submission that the applicant's experience of custody would be more onerous because of his mental health or that it reduced or eliminated the significance of specific deterrence [see for example R v Israil [2002] NSWCCA 255 at [26]). Counsel relied upon what Dr Nielssen opined as a causal connection between the head injuries and the conduct comprehended by the second supply count which, he submitted, reduced the applicant's moral culpability for that offence and the weight to be afforded general deterrence (see for example Israil at [23]). 24In the course of argument counsel conceded that the potential impact of the applicant's head injuries on his capacity for rational and uncompromised decision making was only capable of ameliorating the objective seriousness of the offending the subject of the second count, there being no suggestion that he suffered any neurological deficit at the time of his possession of the drugs for supply, the subject of the first count. Dr Nielssen did report upon a causal connection between the applicant's drug use and his drug offending generally, and although counsel sought to draw some comfort from that in connection with the offending the subject of the first count, it is well recognised that drug addiction, whilst often causally connected to the supply of drugs in the sense of it providing both context and motivation for that offending, does not operate in mitigation of penalty (R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [178]). For this reason, I do not consider that Dr Nielssen's views as to the association between the applicant's drug use and his supply of drugs have any relevance to the sentence imposed on either count. 25The sentence on the second count - a fixed term of 12 months - has now expired. Of itself that does not dispose of the appeal so far as the challenge to the sentence is concerned. That challenge fails for other reasons. What has not been demonstrated is that Dr Nielssen's opinion as to the likelihood of impairment in the applicant's social judgment and impulse control as a result of the car accident, when considered with the other evidence tendered on the sentence proceedings and which this Court is entitled to consider, would permit a conclusion to be drawn of the necessary causal connection between the brain injury in October 2009 and the offending in August 2010, such as to invoke application of the principles in De La Rosa. For my part, I would not draw that conclusion based upon Dr Nielssen's assessment of the subtle (which I take to be mild) effects of the brain injury, and what I regard as the applicant's long standing addiction to drugs as the predominant factor underlying his continued offending after the car accident. 26I am conscious, as McClellan CJ at CL observed in De La Rosa at [178], that the mental health problems of an offender need not be serious or constitute a serious psychiatric illness before they are relevant to the sentencing process. I am simply not persuaded that the brain injury the applicant suffered is relevantly causative. I note that the sentencing judge considered the applicant's depression and anxiety in the calculation of sentence on both counts and I am well satisfied this was accorded appropriate weight. 27The orders I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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