R v Bassi [2021] QCA 250

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing.

Facts: A 34-year-old man, with no criminal history was found in possession of 76.6 grams of cocaine (46 grams pure) and other drugs and utensils after a search of his property. The appellant told the police the drugs were for a bucks party, it became agreed facts at sentence he intended to sell the drugs at that party.

5 personal references were tendered in support of the appellants character, counsel attempted to tender a report by a psychologist to support other medical and counselling reports. The defence was intending on relying on it for the impact of ADHD on risk taking, the self-medication of his ADHD and interplay between ADHD and escalated drug use and prospects of rehabilitation.  The Judge refused the accept the psychological report as it did not come from a psychiatrist who would be qualified to give that opinion.

For the most serious drug offence, the appellant received a head sentence of 3 years imprisonment, with parole release after serving 12 months. The appellant submitted the sentence at first instance should have been immediate release. Manifest excess, no weight on a guilty plea and leave to tender the refused report grounded the appeal.

Finding: The sentencing court should decide on a case-by-case basis if a psychologist’s diagnosis is admissible as expert evidence. The court at paragraphs [51] – [74] set out the test to be applied for expert evidence ultimately concluding the report should been allowed in and would have had a substantial impact on the structure of the sentence. Having succeeded on this ground, the other grounds were not considered.

The appellant was released on the date of the appeal, having served 2 months in custody awaiting the appeal.

Notes for practice:

• Consider the purpose and contents of any reports you are intending to submit, will there be a contest about the admissibility and qualifications of the author.
• This is an excellent case to see how defence have pulled together a sentencing case theory for the mitigation of sentence.

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