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Court of Criminal Appeal 4 June 2012

Zaki v R

[2012] NSWCCA 109

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE TWO COUNTS OF SUPPLY PROHIBITED DRUG

Citation: Zaki v R [2012] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judges: Hoeben JA, RS Hulme J, Fullerton J

Background

The appellant pleaded guilty in the Local Court to two counts of deemed supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985. The offences involved possession of methylamphetamine: 8.95 grams found in his car after it collided with a pole in October 2009, and 3.07 grams found on him in August 2010 while he was subject to a good behaviour bond. The District Court sentenced him to an aggregate head sentence of 3 years and 6 months with a non-parole period of 2 years.

The car accident in October 2009 had caused head injuries requiring hospital treatment for over two weeks. Evidence of those injuries and of the appellant's drug addiction featured in background material at sentencing, but no forensic psychiatric or neurological evidence was placed before the sentencing judge. After sentence was imposed, the appellant obtained reports from a forensic psychiatrist diagnosing substance dependence, depressive illness, and traumatic brain injury affecting the frontal lobes.

The appellant sought leave to appeal on the sole ground that his legal representatives' failure to obtain psychiatric evidence before sentencing resulted in a miscarriage of justice, and that the post-sentence psychiatric reports warranted a reduction in sentence on re-sentence.

  • Whether the post-sentence psychiatric reports of Dr Nielssen constituted admissible fresh evidence on appeal, given they could arguably have been obtained before the original sentencing proceedings.
  • Whether the failure by legal representatives to obtain that evidence resulted in a miscarriage of justice.
  • Whether the psychiatric findings, particularly the traumatic brain injury diagnosis, established a sufficient causal connection to the offending to warrant a reduction in sentence.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. On the admissibility question, the judges divided in their reasoning. Fullerton J set out the established exceptions to the general rule that evidence of facts existing at the time of sentencing cannot be received on appeal where it could have been discovered with reasonable diligence. Hoeben JA and Hulme J agreed with her ultimate orders but differed from her on admissibility, holding that the reports did not fall within any recognised exception. Hoeben JA stated that it is insufficient for admission that a report sheds further light on a matter raised but not fully explored at sentencing.

On the substantive question, all three judges agreed that even if the reports were considered, they provided no basis for interfering with the sentences. Dr Nielssen found subtle evidence of frontal lobe impairment, but Fullerton J concluded that this mild effect, combined with the appellant's longstanding drug addiction as the predominant underlying factor, did not establish the necessary causal connection between the October 2009 brain injury and the August 2010 offending.

Fullerton J also noted that under established authority, drug addiction does not operate in mitigation of penalty for drug supply offences, even where there is a causal link between addiction and the offending. The sentencing judge had already taken the appellant's depression and anxiety into account, and the Court was satisfied that these factors received appropriate weight.

The sentence on the second count, a 12-month fixed term, had already expired by the time the appeal was heard. Fullerton J noted that this alone did not dispose of the appeal, which failed on its merits for independent reasons.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Post-sentence psychiatric evidence is not admissible on a sentence appeal simply because it provides greater insight into a matter that was raised but not fully developed at the original sentencing hearing. More must be established before such a report will be received.
  • Where post-sentence evidence could have been obtained through the exercise of reasonable diligence before sentencing, it will ordinarily fall outside the recognised exceptions to the general rule against receiving such evidence on appeal.
  • A diagnosis of traumatic brain injury will not, of itself, establish a mitigating causal connection to later offending. The Court of Criminal Appeal required a sufficiently direct causal link between the injury and the specific offences charged, not merely a general association.
  • Confirming the principle in R v Henry [1999] NSWCCA 111, drug addiction and its causal connection to drug supply offending does not operate in mitigation of penalty.
  • The expiry of a fixed-term sentence during appeal proceedings does not automatically resolve the appeal. The challenge to the underlying sentence must still be addressed on its merits.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- 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 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