41 His Honour found that the applicant at the time of the murders was suffering the prodromal phase of a psychotic illness, which illness continued to develop after the murders. He accepted the evidence of the applicant's wife that there were noticeable changes in the applicant's behaviour in the weeks immediately before the murders. He accepted it may well be true, as reported, that the offender suffered episodes of mania or depression as a child and as a young man but found however, there was no evidence to show how such events may make it more likely that his mental state was affected in any relevant way at the time of the murders. He accepted that the offender's contemplation of what he had done to his victims and the sights that he had seen and the sounds he had heard probably accelerated the development of his mental deterioration.
42 His Honour found:
[72] At the time of the murders, however, although the offender was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the offender's state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and the moral wrongness of what he was doing. I do not think that the offender's capacity to understand events or judge whether his actions were right or wrong in a moral sense or to control himself were impaired at all. I do not think that his capacity to reason about what he was doing was impaired. His illness, his belief that he was being watched and the other effects that it was having upon him, were incidental. No doubt they affected his life and relationships, but they did not mitigate his criminality any more than any physical illness would have done.
43 In R v Olenik [2002] NSWCCA 90 at [36] it was held:
On an application for leave to appeal against sentence, this court is bound by the findings of fact made by the trial judge, unless it is not open to the trial judge on the evidence before him to make those findings.
44 The applicant submitted that it was not open, on the evidence, for his Honour to make the findings which he did as to the impact of the developing illness upon the applicant at the time of the murders. He submitted that his Honour's rejection of his submissions, which were based upon the evidence of Dr Nielssen, was unreasonable. It was contended that Dr Nielssen's opinion was soundly based and neither contradicted by, nor inconsistent with, any evidence adduced at the trial or on sentence and indeed supported by the lay evidence. The evidence of Dr Nielssen was all one way and his Honour did not provide any valid reason for rejecting it.
45 Dr Nielssen, a consultant psychiatrist, saw the applicant in June and July 2004. His Honour summarised Dr Nielssen's evidence as follows:
[54] Dr Neilssen was not prepared to accept that the offender was mentally ill before and at the time of the offences. The only evidence to support the proposition, he said, was the offender's own account of the onset of symptoms. He said that the offender was suggestible about psychotic symptoms. He thought it a possibility that the offender was malingering at the time of the interviews. He noted that the offender did not give any spontaneous account of the offences or any delusional explanation about them to him or apparently any other treating doctor, and thought that that spoke against the probability of mental illness.
[55] Dr Neilssen thought that the offender knew that what he was doing was legally wrong, as evidenced by his attempts to conceal his involvement. He thought, however, that there was a strong possibility that he had a schizophrenic illness.
[56] He was of the view ultimately that the offender did not have the defence of mental illness but would have favoured the defence of substantial impairment by abnormality of mind. So he accepted that the offender had an abnormality of mind at the time of the offences. In this respect he drew upon the opinion of Dr Ellis that signs of mental illness were present a short time after the killings. He assumed that those features were present at the time of the offences as well. He thought, on the balance of probabilities, that the offender was psychotic at the time of the offences. So his perception of events, his concentration, his reasoning abilities and his ability to judge right from wrong were disturbed. He thought, on the balance of probabilities, that the offender had a chronic psychiatric illness, most probably schizophrenia, in 2003. He thought that the changes in the offender's behaviour before the killings could be evidence of the prodromal phase of a mental illness.
[57] An important feature of the evidence of Dr Neilssen was that before he had access to the medical records of the psychiatric registrar, who recorded no psychotic symptoms, he thought that it was probable that the offender had a psychotic illness on 1 February 2003. After he saw the records he changed his opinion and considered only that it was possible. As the offender was able to form purposeful action, Dr Neilssen thought that his reasoning in other respects was not greatly affected. He acknowledged, however, that there may have been some effect upon his moral reasoning ability.