The applicant's personal circumstances
8The applicant's personal circumstances are complex. Evidence concerning his history came from a variety of sources, including a pre-sentence report prepared for the purpose of sentencing, a psychiatric report by Dr Stephen Allnutt, prepared for the same purpose, and oral evidence given by his sister. In addition, made available were extensive medical records relating to the applicant as well as pre-sentence reports prepared for earlier criminal proceedings against him. The material also included medical records maintained by Justice Health, during previous incarcerations of the applicant. From these sources the following emerges.
9The applicant was born in Australia in August 1975, of Turkish parents, the third of four children. He was not quite 36 years of age at the date of the offence.
10The family was highly dysfunctional. The applicant's father was an alcoholic who was violent towards his wife, the applicant's mother, and to the children. Not infrequently, the applicant's mother took the children from the house to nearby parks to wait until her husband was asleep before returning home. The applicant's father was reported to suffer from a mental illness, the nature of which has not been specified. The applicant's parents separated in 2001; his father died in 2007. The applicant began using drugs and alcohol at the age of 12.
11The applicant has a significant criminal history, which includes convictions for armed robbery with wounding (1993, aged about 18) and robbery (2009), and drug supply (2001). By far the most serious conviction is for manslaughter, committed in 1993 (just before the applicant turned 18) in respect of which he entered a plea of guilty. For that offence he was sentenced to imprisonment for 5 years, with a non-parole period of 2 years.
12In April 2009 the applicant was sentenced to imprisonment for 4 years and 4 months (with a non-parole period of 3 years) for offences of assault with intent to rob, robbery, possession of a prohibited drug and shoplifting. He was released to parole on 9 February 2011. On 30 June 2011, following his arrest for the current offences, parole was revoked and he was returned to custody to serve the balance of that term, which expired on 15 August 2012. The present offences were therefore committed while the parole order was current.
13The applicant has been involved in two motor traffic accidents. The first was in February 2001, when he was riding a motorcycle. He sustained injuries to his leg, shoulder and back. The second, in November 2003, was a high-speed motor vehicle accident in which he was the driver of a car that crashed into parked cars. He suffered head injuries. He underwent extensive neurological assessment. This revealed a degree of brain damage. It is difficult, on the evidence, to assess the nature or degree of the brain damage.
14The material before the sentencing judge included comprehensive medical records and reports on his condition up to May 2004. It also included a report from the psychiatrist, Dr Allnutt, dated 26 June 2012. Dr Allnutt had available to him the applicant's medical record, both with respect to the investigations following the motor vehicle accident and the Justice Health records.
15The author of the Pre-Sentence Report recorded:
"It is reported that as a result of the motor vehicle crashes, [the applicant] sustained brain damage which led to his being diagnosed with severe depression, anxiety and obsessive compulsive disorder. He was prescribed medication for these conditions; however after being released to parole, Mr Aslan admitted that he did not adhere to his medication regime and had, in fact, not taken any medication for five days prior to the offence. Instead he chose to self medicate with alcohol and illicit substances as his mental condition deteriorated."
16It was also reported that the applicant began abusing drugs and alcohol at the age of 12, using alcohol to the point of passing out. After the motorcycle accident he began using heroin intravenously, as well as a variety of other drugs, including amphetamines.
17The applicant married in 2005 and is the father of a son, now about eight years of age. He is separated from his wife. His wife left, with their son, as a result of the applicant's continued drug and alcohol use and mental health instability, which led to previous offences and incarceration.
18The history taken by Dr Allnutt recorded the applicant having seen a psychiatrist while in custody in 2008, as a result of which he was treated for anxiety. The anxiety apparently continued after his release and he used cannabis by way of dealing with that condition. The applicant also reported to Dr Allnutt weekly ongoing panic attacks, and some symptoms of paranoia.
19Dr Allnutt made extensive reference to the historical material with which he had been provided. On the basis of that material, and the history taken from the applicant, Dr Allnutt expressed the following opinions:
"In my opinion [the applicant] was manifesting symptoms of anxiety and depression characterised by poor motivation, poor self esteem but predominantly panic attacks in the form of crawling in his skin, restlessness, rapid breathing, shortness of breath and palpitations lasting for a few minutes; in addition to this he describes perceptual phenomena in the form of voices, hearing people whispering about him; overall while he manifests panic attacks, I would not diagnose him with a chronic psychotic disorder such as schizophrenia, but it is likely that his perceptual disturbances relate to mild persisting drug induced psychotic symptoms related to his long term substance abuse history.
... He has suffered a severe head injury and possibly ongoing cognitive difficulties as a consequence of that; a prior neuropsychological assessment reported short-term memory impairment, concrete thought impulsiveness, poor concentration and attention, disinhibited behaviour and psychomotor agitation, poor judgment, disorganised planning and given the relative static nature of cognitive impairment due to severe brain injury these difficulties likely remain (I did not have available a recent neuropsychological assessment)."
20With specific reference to the applicant's mental state at the time of the offences, Dr Allnutt said:
"At the time of the alleged offence [the applicant] would have been experiencing the ongoing cognitive problems derived from his head injury; he also describes at that time experiencing episodes of 'black outs' where he would lose memory for things, however this is in the context of a long history of poly-substance abuse; substance intoxication is known to cause episodes of 'black outs' related to periods of intoxication and this is probably the cause of [the applicant's] 'black outs'.
In the time leading up to the index incident he was using substances on a regular basis including cocaine, cannabis, amphetamines, methamphetamines and alcohol; he was experiencing voices where he would hear people whispering about him; he would turn and look and sometimes think that people were there; these symptoms likely were related to his substance abuse and drug induced.
He was also experiencing panic attacks.
...
I do not believe that he had an underlying mental disorder that caused significant distortion of his perception of events due to a mental condition; while he has memory problems on cognitive testing his account his unlikely to be confabulation; he was intoxicated and likely was experiencing the ongoing effect of head injury and there could have been a compounding of effects and thus he would have been at risk of having poor judgment and being disinhibited; this could have made him vulnerable to misinterpreting the complainant's signals, that is to misinterpreting the interaction he had with her an invitation to consensual sexual activity; however this does not explain the allegation of coercive sexual activity.
The nexus between his cognitive deficits, intoxication and the alleged offending is probably best determined once the factual matters are established, that is once there is factual clarity on the nature of the interaction between [the applicant] and the victim; I would also recommend that [the applicant] pursue further neuropsychological assessment."
21The references in the last and second last of these paragraphs to factual matters concerning the offence were references to the account given by the applicant to Dr Allnutt of the events of 3-4 June 2011. That account exculpated the applicant, and asserted that it was the complainant who initiated the sexual activity, following an arrangement between them that he would provide her with "some substances" in return for sexual favours. That account was significantly contradicted by the agreed statement of facts.
22The applicant's medical history, which was contained in the substantial bundle of records provided to Dr Allnutt, included rehabilitation reports written in 2004, in the immediate aftermath of the motor vehicle accident, as well as a report of neuropsychological assessment dated 19 May 2004.
23On 7 May 2004 Dr Stuart Browne, a Rehabilitation Specialist, reported on his investigations of the applicant's head injury. He recorded having seen the applicant on numerous occasions, and said:
"His behaviour has been consistent with a traumatic brain injury, with evidence of cognitive impairment and behavioural changes. He has demonstrated significant short term memory impairment, concrete thought, impulsiveness, poor concentration and attention, disinhibited behaviour, and psychomotor agitation.
[The applicant's] brain injury manifests as forgetfulness, impulsive decision making, poor judgments, and disorganised planning. He interrupts frequently during conversations, indicating his lack of impulse control ..."
24On 19 May 2004 Dr Charlotte Morgan, a clinical neuropsychologist, after conducting a battery of tests, reported:
"The overall pattern of his test results, behaviour and interpersonal interaction suggests ongoing post-concussional disorder evident by continued dysfunction in executive functioning (conceptual shifting, inhibition difficulties, word generativity difficulties, and poor abstraction), slowed cognitive processing, poor visual and verbal memory and verbal reasoning dysfunction. Evidence of behavioural changes also presented severe difficulties with managing depression, anxiety and stress. This is consistent [with] the pattern expected in post-concussional disorder associated with traumatic brain injury."