Proctor : February 2019
39 PROCTOR | February 2019 where there was good reason for a jury to closely scrutinise the complainant’s evidence, it cannot be said that the failure to direct the jury to the effect that the appellant had been acquitted of those offences and that they could not use that evidence in a manner inconsistent with the full benefit of those acquittals, did not deprive the appellant of a fair chance of acquittal on the counts he was ultimately found guilty on. Appeal allowed. Jury’s verdicts of guilty on Counts1,2,5,6,9,11and12besetaside.A new trial be ordered on each of those Counts. R v Sutton  QCA 318, 16 November 2018 Sentence Application – where the applicant was sentenced to concurrent sentences of two years’ imprisonment for possession of the dangerous drug cocaine in excess of 2 grams, 18 months’ imprisonment for possession of the dangerous drug cocaine, six months’ imprisonment for possession of the dangerous drug trenbolone, with parole eligibility after serving eight months’ imprisonment – where the sentencing judge held that the applicant’s possession of cocaine was for his personal use and not for the business of holding cocaine to sell it – where the sentencing judge was referred to a clinical psychologist’s report that indicated the applicant met the criteria for a diagnosis of stimulant use disorder, cocaine, severe in early remission; major depressive disorder, severe recurrent episode; and social anxiety disorder – where the clinical psychologist’s report referred to the applicant’s suicidal ideation and suicide attempts following arrest – where the report indicated that if the applicant were to receive a custodial sentence it is highly likely that the stress associated with imprisonment would have a negative impact on his mental well-being – where notwithstanding that the sentencing judge recorded that the applicant met the criterion for a number of mental health diagnoses according to the clinical psychologist, her Honour expressly stated in the last paragraph of her sentencing remarks that she saw no reason to further moderate the sentence beyond that required to reflect the pleas – where the sentencing judge’s approach to the sentencing discretion miscarried in that there was error in failing to take into account the applicant’s significant mental health issues and their correlation with his offending, including the impact on him of a custodial sentence – where although the sentencing judge remarked that there was no evidence that the applicant had managed to overcome his cocaine use and addiction and that, absent demonstration of complete rehabilitation, the applicant was “a huge risk for future criminal offending”, the psychologist’s report stated that, at the time of the report, the applicant had successfully remained abstinent from cocaine use for a three-month period, and, as mentioned, assessed the applicant’s risk of reoffending as low – where moderation is warranted to the custodial component to reflect the need to moderate the sentence to take into account the mental health issues of the applicant and to recognise that incarceration is particularly onerous for him having regard to the matters raised in the report of the clinical psychologist and also the further material disclosed in the psychological report of Ms Krishnan. Grant the application for leave to adduce evidence. Grant the application for leave to appeal against sentence. Appeal allowed. Vary the sentences imposed by varying the parole release date from 29 April 2019 to 21 December 2018. Prepared by Bruce Godfrey, research officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment. On appeal Different, better. email@example.com schultzlaw.com.au Sunshine Coast 07 5406 7405 Brisbane 07 3121 3240 Gold Coast 07 5512 6149 Michael Callow Travis Schultz What can your client expect when you refer them to us? As a social justice law firm, we are focused on making a positive difference in people’s lives and want affordable legal services to be accessible to all. We do this by keeping our fees lower than the industry average and charge only on the government set Federal Court Scale. Because we want our clients to always get more, in the exceptional case when a cap on costs is to be applied, we cap our fees at only one third of the settlement, rather than apply the normal 50/50 rule. The best of both worlds – lower fees and experience Lower fees does not mean you have to compromise on expertise. Both Travis Schultz and Michael Callow are accredited specialists, each with over 25 years’ experience and provide a personal service everyone can access. Now that is different, better. • Cutting edge expertise, without the price tag. • Compensation and insurance experts. • No win, no pay. • No uplift fees. • No litigation lending for outlays and no interest charges.