Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Sexual offence against a child - Mental illness - Whether sentence manifestly excessive - Whether sentence indicative of implied error - Whether specific deterrence should be moderated or eliminated by reference to mental illness - Mitigating effect of mental illness offset by other factors

Criminal Appeals Act 2004 (WA), s 31(4)

C v The State of Western Australia [2006] WASCA 261

Chan (1989) 38 A Crim R 337

Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433

F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125

Gok v The Queen [2010] WASCA 185

Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465

Krijestorac v The State of Western Australia [2010] WASCA 35

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

LSC v The Queen [2003] WASCA 303

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Pindan v The Queen (Unreported, WACCA, Library No 970530, 2 October 1997)

R v Podirsky (1989) 43 A Crim R 404

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Rogers (1989) 44 A Crim R 301

Smith v The State of Western Australia [2010] WASCA 176

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Higgins [2008] WASCA 157; (2008) A Crim R 302

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Vagh v The State of Western Australia [2007] WASCA 17

Victor v The State of Western Australia [2011] WASCA 94

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

Wheeler v The Queen [No 2] [2010] WASCA 105

1 McLURE P: I agree with the orders proposed by Hall J. These are my reasons for doing so.

2 This is an application for an extension of time to appeal against a sentence imposed upon an offender with a serious mental illness. The sentencing principles on that subject are settled: see Smith v The State of Western Australia [2010] WASCA 176; Wheeler v The Queen [No 2] [2010] WASCA 105; Krijestorac v The State of Western Australia [2010] WASCA 35; and Thompson v The Queen [2005] WASCA 223.

3 The full facts are set out in the judgment of Hall J. The appellant penetrated the anus of a 5-year-old girl with his penis causing her severe injuries and requiring hospitalisation at Princess Margaret Hospital in Perth. The victim was selected at random and the offending opportunistic.

4 The appellant was sentenced to 7 years' imprisonment for the sexual offence. He was also sentenced at the same time for six offences the subject of a s 32 notice, being four charges of burglary, one of escaping legal custody and one of trespassing. He was sentenced to 12 months' imprisonment for each burglary, 8 months for escaping legal custody and 3 months for trespassing. All the sentences were ordered to be served concurrently, resulting in a total effective sentence of 7 years' imprisonment.

5 The offence occurred at the remote Aboriginal community of Jigalong. The appellant, an Aboriginal man, had just turned 19 when he committed the sexual offence. He admitted that offence to police in the course of an interview relating to the other offences he had committed.

6 The appellant has been diagnosed with paranoid schizophrenia, complicated by polysubstance abuse, and antisocial personality disorder. He has a lengthy criminal record, primarily for offences against property. He had no prior conviction for a sexual offence.

7 The sexual offence was committed on 22 May 2007. The appellant had been released from prison in February 2007 and went to live with his uncle at Jigalong. He was released from prison on slow-release antipsychotic medication. By March 2007 the appellant had ceased his antipsychotic medication and was using alcohol and cannabis. The appellant was remanded in custody following the commission of the sexual offence. Since January 2008 he has refused to take any medication.

8 The sentencing judge had before her three psychiatric reports, two from Dr V Pascu (dated 20 June 2007 and 27 May 2008) and one from Dr P Skerritt (dated 17 December 2007). The expert psychiatric evidence established that the appellant was fit to plead and that the defence of insanity under s 27 of the Criminal Code (WA) (the Code) was not available. The sentencing judge accepted the expert psychiatric evidence.

9 Dr Pascu records the following in her 2008 report. The appellant's mental condition required ongoing psychiatric treatment with antipsychotic medication indefinitely. However, the appellant denied having a mental illness and refused to be restarted on his medication. He also had a longstanding significant problem with polysubstance abuse, including the abuse of alcohol and cannabis. The appellant stated that he intended to continue to use both alcohol and cannabis because it made him feel 'alive'. The appellant has no insight whatsoever into his illness or his need for treatment. Dr Pascu concluded:

Given the history of noncompliance with treatment, follow up and the further disinhibiting effect of his substance abuse I am of the view that in the community [the appellant's] risk of reoffending is significant.

10 The risk assessment includes the risk of sexual offending. The primary focus of Dr Skerritt's report is on whether the appellant was fit to plead and the availability of the defence of insanity. He makes observations relating to the causal relationship between the appellant's paranoid schizophrenia and the sexual offence in the context of considering whether the appellant's schizophrenia resulted in him having relevant psychotic symptoms at the time. Dr Skerritt was not satisfied that the appellant had such symptoms at the relevant time and therefore concluded that there was no direct connection between the appellant's schizophrenia and the commission of the sexual offence. However, for the purposes of this appeal I will assume that the appellant's mental condition made a causal contribution to his offending in the extended sense explained by Wheeler J in Krijestorac [18]. There can be no doubt that his mental condition together with his refusal to take antipsychotic medication and substance abuse puts him at significant risk of reoffending.

11 The appellant appeals against the sentence for the sexual offence on two grounds. The first rests on implied error (manifest excess) and the second on express error (a failure to moderate the weight given to personal deterrence: Thompson [54]). It is appropriate to start with the second ground.

12 The sentencing objective of personal deterrence is directly linked with the risk of an offender committing further offences. If there is no risk of reoffending, no weight is given to personal deterrence. Where immediate imprisonment is the only appropriate sentencing option, the need for personal deterrence ordinarily results in a longer term. In that way the risk of reoffending is eliminated for the period spent in custody and (hopefully) reduced upon release. Any moderation in the weight given to personal deterrence because of mental impairment can only potentially apply to the risk of future offending in the post custodial period. On the other hand, if there is a significant risk of future offending, any moderation in the weight given to personal deterrence may in appropriate circumstances be offset by considerations relating to the protection of the public.

13 I am not persuaded the sentencing judge made any error in the weight she gave to personal deterrence. The sentencing judge was not satisfied that the appellant's mental condition itself meant he was more likely to commit sexual offences. That is consistent with the expert evidence and not challenged. The sentencing judge continued:

At the time the police interviewed you, you were off your medication but you certainly knew then that this offence was very wrong and you were very ashamed of what you had done (ts 6).

14 Against that background she said one of the most important factors was to impose a term which would discourage the appellant from sexual offending. She spoke to the appellant in terms he was more likely to understand. She told him that what he did to the child was very wrong and deserving of punishment by a lengthy gaol term and that 'being ill doesn't give you an excuse when you ignore what the doctors tell you', being a reference to him refusing to take medication and using alcohol and drugs. In light of the appellant's understanding of the wrongfulness of what he did to the child and his remorse, it was appropriate to single out and give weight to the need to deter the appellant from committing sexual offences. In any event, any moderation in the weight to be accorded to personal deterrence in this case would be offset by giving correspondingly greater weight to the need to protect the members of the community in which he lives.

15 That leaves manifest excess. One of the factors to be taken into account when determining whether a sentence is manifestly excessive is the standards of sentencing customarily imposed for offences of the particular type. That is done in order to ensure broad consistency in the sentencing of offenders for similar offences. However, as stated by Steytler P in The State of Western Australia v Akizuki [2008] WASCA 267:

Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed ... or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction [68].

16 To say that manifest excess requires the sentence to be 'clearly beyond' the range of discretionary sentences available or 'significantly and unjustifiably' outside the customary range has the capacity to mislead. A sentence will be manifestly excessive if it is outside the range of a sound exercise of the sentencing discretion. The notion of a sentencing range is to accommodate the fact that there is no single correct sentence. Where it is appropriate and possible to identify a range of sentences customarily imposed, such a range does not establish the range of a sound sentencing discretion. Were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations, including changes in the prevalence of an offence: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465; Akizuki [71].

17 There are no recent directly comparable cases to guide the exercise of the sentencing discretion in this case. However, it should be noted that the maximum sentence for the offence committed by the appellant is the same as the maximum sentence for the offence of aggravated sexual penetration without consent contrary to s 326 of the Code.

18 By any measure, a term of imprisonment of 7 years for a single offence of sexual penetration is very high, particularly when regard is had to the appellant's youth, plea of guilty and cooperation with police. However, the sentencing judge was correct to describe the circumstances of the appellant's offending as being at the highest end of the scale of seriousness of crimes of its type. By analogy with the reasoning in Victor v The State of Western Australia [2011] WASCA 94 [19], assessing the relative gravity of the sexual offence by reference to the 'Dempsey factors' is misconceived in the circumstances of this case. Further, the medical evidence establishes that this is a case where significant weight must be given to the protection of the public. The appellant is a tragic figure who is severely mentally ill. However, he has no insight into the fact or extent of his mental condition, which requires that he be on medication

indefinitely. He continues to refuse medication and has expressed an intention to continue to engage in other conduct that places him at significant risk of reoffending. This unusual combination of sentencing factors justifies an unusually high sentence.

20 HALL J: On 6 March 2008 the appellant pleaded guilty to one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA). On 11 June 2008 the appellant was sentenced to 7 years' imprisonment backdated to commence on 23 May 2007. The appellant was made eligible for parole. This is an appeal against that sentence.

21 An appeal notice was not lodged until 20 August 2010 and accordingly the appellant requires an extension of time to bring the appeal. The delay is lengthy, being in excess of two years.

22 The reasons advanced for the delay are that the appellant is an Aboriginal man from a remote area for whom English is not the first language. It is also suggested that it is relevant to take into account the appellant's mental illness. The implication is that he did not understand his appeal rights. He was, however, represented by a lawyer at the sentencing.

23 It is not clear that the factors referred to satisfactorily explain the long delay. However, an extension can also be granted where it is established that a miscarriage of justice has occurred. This requires a consideration of the merits of the grounds of appeal.

24 The appellant's grounds of appeal are as follows:

1. The learned sentencing Judge erred by imposing a sentence that was manifestly excessive, particularly having regard to:
   1. The nature and circumstances of the offence;
   2. The circumstances personal to the appellant; and
   3. The appellant's mental illness.

1. The learned sentencing Judge erred in law by failing to moderate personal deterrence as a sentencing consideration in light of the Appellant's mental illness.

25 On 14 December 2010 Mazza J granted leave in respect of ground 1 and referred the application for leave in respect of ground 2 to the hearing of the appeal. The application for an extension of time was also referred to the hearing.

26 The offence occurred on 22 May 2007 at Jigalong. At that time the appellant was 19 years old.

27 At about 3.30 pm the victim, a five-year-old girl, was playing with some other children in the area near her home. Her mother had gone to the shop at the community and left the child in the care of her grandmother.

28 The appellant was in a vacant house a short distance from where the children were playing. In a subsequent interview with the police the appellant said that he called out to the victim and she followed him to the house. He took her to a rear bedroom of the house where he removed her pants and penetrated her anus with his penis. It is not known how long this conduct continued for.

29 The victim managed to get away and ran home crying. She was seen to have no pants on and had blood and faeces on her legs. She was immediately taken to the Jigalong Clinic for examination and treatment. Due to the severity of her injuries she was flown to Princess Margaret Hospital where an examination was conducted under general anaesthetic. Five fresh radial lacerations, each about one centimetre in length, were observed outside the anal orifice of the victim.

30 The appellant fled the area and could not be found immediately. A search of the Jigalong community the following day resulted in the appellant being located, arrested and charged with this and other offences. The other offences were trespass, escaping legal custody and four charges of burglary which had been committed in the previous days.

31 When the appellant was interviewed he was first asked about the burglaries and made some admissions in relation to those. He was then asked whether he had done anything else because his demeanour was suggestive to the police officers of being ashamed of something more than committing burglaries. He then admitted that he had committed what he referred to as rape. He said the victim was a little girl but that he did not know her name or where she lived. He was interviewed again two days later and was reluctant to answer questions about what occurred. He did say 'I wasn't myself' and when asked about this said that he normally took medication. He said the medication was for keeping himself calm but he had stopped taking it a couple of days earlier.

32 In submissions, the State accepted that the plea of guilty was made at an early stage and was indicative of genuine remorse. The State accepted that the appellant's youth was mitigatory. He could not, however, be considered of prior good character as he had a lengthy record, albeit that there were no previous convictions of a sexual nature.

33 The State also conceded that the appellant was suffering, at the time of the offending, from a significant psychiatric condition that was likely to persist for the rest of his life. Counsel for the State said in regard to this condition that:

As a consequence, this case may not be one in which considerations of general and even personal deterrence loom large, in accordance with the authorities (ts 9).

34 On the other hand, the State noted that the psychiatric reports that had been produced to the court referred to the appellant being a significant risk of re-offending and that his mental condition was not directly connected to the commission of the offence. I will return to the reports when dealing with ground 2.

35 The appellant's counsel said that the appellant had been brought up by his grandmother and had spent time in prison, from which he had only recently been released. He had no permanent residence and had moved between Newman and Jigalong, where he had extended family. Shortly prior to the offences he had moved back to Jigalong and broken into the community store. He had taken food, a television and a VCR player and brought them back to the vacant house where he had set up camp. He suffered from severe long term schizophrenia which required him to take medication, some of which was administered by injection.

36 In sentencing the appellant the sentencing judge said:

Your mental illness is not mitigatory in the sense that it caused the offences but I do accept you're a person of deprived background and that your life has become a sad and lonely one, marred by serious illness.

In sentencing for a crime like this, I consider the most important factors as being to impose a term which will discourage you from doing something like this ever again, and generally would also be to send a message out to other sex offenders in the community that this sort of offence will attract a very long jail term.

Because of your mental illness I feel I can place a little less emphasis on general deterrence because a lot of sex offenders don't suffer from any illness and you are not the best person to use to set an example in that way. But the discount on that account will not be as significant as it would have been, had your illness been linked to the cause of the offending.

And I'm certainly not losing sight of the need to bring home to you, personally, in the clearest way that what you did was so very wrong that you deserve to be punished by a lengthy jail term. And also to bring home to you that being ill doesn't give you an excuse when you ignore what the doctors tell you and when you voluntarily drink and take drugs. You made your illness worse yourself. You did that by making those decisions.

Protection of our children is a paramount consideration here, and I therefore see the need to impose a term which stops you from offending in this way again, as being very important.

I've already said that I regard this offence as being at the highest end of the scale for seriousness. My starting point, considering the facts alone, was very close to a maximum penalty.

Once I take into account your personal circumstances, that is to say, your youth because you were 19 at the time, the deprivation and isolation that has resulted from your background, your lack of English speaking skill and your serious mental illness which has bearing in the sense of the comments I've just made about general deterrence and also leads me to feel you will be socially isolated within the prison system itself, and hence will suffer hardship in that sense too, I've arrived at a lower starting point of 16 years.

I have reduced that by a third to give you credit for your co-operation with the police and your plea of guilty which was very significant for the reasons I have mentioned which reduces the term down to 128 months, which I've then reduced by a further third, as required by the Sentencing Act, which arrives at a final term of imprisonment of seven years (ts 7 - 8).

Ground 1: Was the sentence manifestly excessive?

37 To determine whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the types of sentences customarily imposed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

38 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion differently: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. A ground of appeal that asserts manifest excess relies upon it being established that the sentence imposed was so clearly beyond the range of discretionary sentences available as to show that some error must have been made although it cannot be identified: Vagh v The State of Western Australia [2007] WASCA 17 [47].

39 The maximum penalty for the offence of sexual penetration of a child under the age of 13 is 20 years' imprisonment: s 320(2) Criminal Code (WA). It was conceded both before the sentencing judge and on the hearing of this appeal that the offender's conduct in this case was serious and clearly warranted an immediate term of imprisonment.

40 Offences of sexual penetration vary significantly in their circumstances and this makes comparisons difficult. Nonetheless, it is desirable to consider other cases in order to achieve as much consistency in sentencing as may be possible: The State of Western Australia v Higgins [2008] WASCA 157; (2008) A Crim R 302 [19]; Hili v The Queen [2010] HCA 45; (2010) 78 ATR 11 [53]. Even if a broad range of sentences can be discerned the mere fact that a sentence falls outside the ordinary range does not necessarily establish manifest excess.

41 Sometimes cases are classified according to the nature of the penetration, however, there is no hierarchy of seriousness in this regard and all the circumstances must be considered: C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA). On any view, penile penetration of the anus of a 5-year-old child, resulting in injury, must be a very serious offence.

42 In LSC v The Queen [2003] WASCA 303 Hasluck J (with whom Murray ACJ and McKechnie J expressed general agreement) reviewed sentencing cases involving anal penetration of a child and noted that those sentences ranged between 6 and 8 years (equivalent to 4 to 6 years post-transitional) [94]. LSC involved 35 counts against the offender's daughter. The charges were representative of sexual misconduct that had occurred over an eight year period whilst the child was between nine and 17 years of age. Hasluck J was of the view that individual sentences of 9½ years for acts of anal penetration were manifestly excessive [97], though McKechnie J differed in this respect. In that case, the offender was resentenced on appeal to 2 years and 8 months for offences of digital penetration of the anus and between 3 years and 4 years for offences of penile penetration of the anus. Some sentences were ordered to be served concurrently with the aggregate sentence being 11 years.

43 In Pindan v The Queen (Unreported, WACCA, Library No 970530, 2 October 1997) the offender was sentenced to 10 years' imprisonment without parole for a similar offence of sexual penetration of a child (equivalent to 6 years 8 months post-transitional). In that case, the offender was 29 years old and the victim 5 years and 8 months at the time of the offence. The offender was the victim's uncle and had a prior criminal record for sexual offending. The offender had lured the victim into a church and sexually penetrated her vagina with his penis and in doing so, caused severe second degree perineal tearing between the vagina and the anus. The child required surgery. The only issue in that case was whether the offender should have been made eligible for parole. He had breached parole on previous occasions. The court held that no error by the sentencing judge had been demonstrated.

44 The assistance that can be derived from LSC and Pindan is limited. The range of 6 to 8 years referred to in LSC corresponds to the range referred to by Malcolm CJ in R v Podirsky (1989) 43 A Crim R 404, 411. In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [307] the Court of Appeal noted that sentences for sexual offending had significantly 'firmed up' since Podirsky. In this regard, the court referred to the better understanding of the long-term effects such offences may have on the victim. In that case, the court was concerned with prolonged sexual offending against a child or children, but there is no reason to think that the 'firming-up' of sentences would not equally apply to single offences. This suggests that the range referred to in LSC is no longer reliable.

45 In fact, in my view, the cases do not establish a customary range of sentences for offending of this type. Indeed, any attempt to specify such a range for sexual offending is probably futile: The State of Western Australia v Akizuki [2008] WASCA 267 [68]. The relevance of other cases is, therefore, limited to the endeavour to achieve as much consistency in sentencing as possible.

46 As regards Pindan, it was accepted by the State that there were some features of that case that were worse than the present case. However, these seem to be largely confined to the personal circumstances of the respective offenders. The objective features of the offences are comparable. The fact that Pindan received a marginally lower effective sentence than that imposed on the appellant does not, in itself, justify a conclusion that the sentence in this case was manifestly excessive.

47 The only other comparable case was referred to by the State. That case, Rogers (1989) 44 A Crim R 301 involved an 18-year-old Aboriginal man with no prior convictions who sexually assaulted his 7-year-old niece by penetrating her vagina with his penis. He had been discovered by his grandmother and this had prevented full penetration occurring. A sentence of 6 years' imprisonment was reduced to 3 years on appeal. In that case, there was no evidence of physical injury to the complainant. The offender in Rogers was a tribal Aborigine with very limited education who committed the offence under the influence of alcohol. He had been beaten with a stick by a member of his family and had been shunned as a result of the offence. Although he suffered from no mental illness his antecedents were unblemished, unlike the appellant's. The offender had a blood relationship with the victim but there was no relevant relationship of trust. Thus that is not a factor which distinguishes Rogers from the appellant. Malcolm CJ concluded that the sentence of 6 years was manifestly excessive and failed to reflect adequately the offender's mitigating circumstances.

48 In the present case, the sentencing judge gave appropriate consideration to factors personal to the appellant. Her Honour gave credit for the plea of guilty and the expression of remorse and she noted the appellant's youth and the significance of his mental illness. The offending also appeared to be opportunistic in nature. As opposed to those mitigating factors the objective circumstances of the offence were serious. The victim was very young, was lured away from her home and subjected to a serious act of penetration which resulted in significant injury. The appellant does not suggest that there was any express error in her Honour's sentencing remarks.

49 In considering whether the sentence imposed was manifestly excessive, the express reasoning of the sentencing judge is not in issue. The question is, whether the sentence itself is indicative of an implied error. A sentence of 7 years was certainly a severe sentence. However, in the circumstances, I am unable to conclude that the sentence was so clearly excessive as to manifest error. In my view, it was open to impose this sentence in all of the circumstances. Accordingly, this ground cannot succeed.

Ground 2: Mental illness and personal deterrence

50 There is no suggestion that the sentencing judge failed to appreciate the nature and seriousness of the appellant's mental illness. Her Honour made extensive reference to the three reports that she had received from psychiatrists in that regard.

51 The first of those reports was from Dr Victoria Pascu dated 20 June 2007. In that report, Dr Pascu said:

Mr Samson has a history of a serious mental illness, namely paranoid schizophrenia. This is on the background of a documented history of conduct disorder, complicated by polysubstance abuse including alcohol, cannabis and solvents and limited support in the community. It appears that following Mr Samson's release from prison in February 2007 he was essentially non compliant with the psychiatric treatment and follow up in the community. This, I believe, combined with his alcohol and cannabis abuse, have contributed to his mental state deteriorating, with increasing social withdrawal, delusional thinking and auditory hallucinations (voices).

Regarding the alleged offence, it appears that this occurred on the background of Mr Samson's deteriorating mental state and concomitant substance abuse, mainly the cannabis, as he admitted to smoking it on the day that the offence allegedly occurred. Mr Samson has a reasonable understanding of the alleged offence, has a satisfactory understanding of the difference between the guilty and not guilty pleas and I believe that he is fit to stand trial. Following Mr Samson's return to custody he was recommenced on his antipsychotic medications and with ongoing treatment I believe that his mental state will continue to improve.

52 The second report was from Dr Paul Skerritt dated 17 December 2007. In that report, Dr Skerritt also diagnosed the appellant as suffering from paranoid schizophrenia. He said that it was of a severe form, starting early in life and complicated by symptoms of depression. Dr Skerritt could not establish any direct connection between the psychotic symptoms and the crime, such as being in response to delusions or hallucinations commanding the appellant to perform the act. He concluded that it was unlikely that there was any connection between the illness and the commission of the offence.

53 Dr Skerritt described the appellant as a 'tragic figure'. He also noted that people with schizophrenia have a morbid attraction to cannabis which in turn can worsen the illness and provoke admission to hospital, although not being directly causative of the illness. He said that it was likely that the appellant's symptoms were made worse by the appellant having ceased his medication and by the use of cannabis. Dr Skerritt concluded by saying:

In summary we have an extremely damaged young man who nevertheless, at least at the present level of assessment, cannot demonstrate any connection between his serious mental illness and the commission of the alleged offence. In my opinion he is not eligible for an insanity defence but the devastation of his brain function from various biological, psychological and social factors could perhaps be seen as some mitigation for the offence short of a defence of insanity.

54 The third report was also from Dr Pascu and dated 27 May 2008. In that report Dr Pascu noted that the appellant's mental state had deteriorated since the previous interview in June 2007. She noted that the appellant denied having a mental illness and refused suggestions to restart his medications. She said that he had no insight into his illness or his need for treatment. Dr Pascu concluded by saying:

I remain of the view that Mr Samson is suffering from a serious mental illness, namely paranoid schizophrenia. Since the cessation of his treatment in March 2008 I believe that his mental state has gradually deteriorated as during the interview he presented as psychotic and thought disordered, with no insight into his illness and no plans to re-start his medications.

...

If the court decides on a community based disposition or bail Mr Samson plans to return to Jigalong or Port Hedland. He has unrealistic plans to work, rent a house on his own and continue to abuse cannabis and alcohol because he believes that these substances made him feel alive. Given the history of non compliance with treatment, follow up and the further disinhibiting effect of his substance abuse I am of the view that in the community Mr Samson's risk of re-offending is significant.

55 Mental illness can be relevant in sentencing in a number of different ways. The issue has been considered by this court in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105 and Gok v The Queen [2010] WASCA 185. Those cases cite with approval R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400 in which case Charles and Calloway JJA and Vincent AJA said of mental illness:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

56 In the present case, it is contended that whilst her Honour properly took into account mental illness in regard to general deterrence, she failed to do so in respect of personal or specific deterrence. The appellant submits that since the psychiatric reports refer to a lack of insight into his mental illness the appellant was not a person who would be capable of understanding or applying the rational analysis assumed in personal deterrence.

57 Whether specific deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and effect of the illness: R v Verdins [2007] VSCA 102; (2007) 16 VR 269. Personal deterrence does assume some rational analysis or reasoning by the offender in comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person's ability to make an analysis, that consideration may be afforded less significance than it would in the case of a well person: Thompson v The Queen [54].

58 In her sentencing remarks, the sentencing judge did refer to the need to bring home to the appellant that being ill did not give him an excuse for ignoring his doctors and voluntarily drinking and taking drugs. She said that he made his illness worse as a result of those decisions. This does seem to indicate that her Honour considered that there was room for personal deterrence to be a consideration in imposing sentence on the appellant.

59 That approach appears to be inconsistent with the report of Dr Pascu that the appellant did not have insight into his illness or the need for continued treatment. Nor does the appellant appear to have appreciated the detrimental affect of alcohol and cannabis on his mental health. Furthermore, Dr Skerritt expressed the view that the appellant's illness was of a nature as to cause him to be attracted to cannabis. This would suggest that his use of cannabis could not necessarily be equated with the voluntary decision of a mentally well person. In that regard there was good reason to doubt that the appellant was capable of the rational processes that underlay personal deterrence.

60 However, even if her Honour was wrong in incorporating an element of personal deterrence into the sentence, this ground could only succeed if the court is persuaded that some sentence other than that imposed on the appellant was appropriate: s 31(4) Criminal Appeals Act 2004 (WA).

61 If personal deterrence was not a relevant factor it might be supposed that a reduced sentence was appropriate. However, it must be recognised that the mitigating effect of mental illness may be offset by other factors. In Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433, 436 - 437, Brennan J said:

Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe.

62 In the present case, whatever mitigatory value may have been derived from the impact of the mental illness in reducing the need for personal deterrence was entirely offset by the increased risk of re-offending as a result of that mental illness. As noted in the psychiatric evidence, the appellant presented a significant risk of re-offending as a result of his mental illness. The fact that he had no insight into that illness or the need for treatment exacerbated that risk. In those circumstances, protection of the community was a very significant consideration.

63 For those reasons, even if her Honour erred by incorporating an element of personal deterrence into the sentence, given the appellant's mental illness, the increased need for community protection was such that I am not satisfied that a different sentence should have been imposed.

64 Accordingly, this ground cannot succeed and I would refuse leave in respect of it.

65 I am not satisfied that either of the grounds has any reasonable prospect of succeeding and, accordingly, I would refuse the application for an extension of time and dismiss the appeal.