CAMERON -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 149 (17 October 2023)

1. Between about 9.20 am and 11.15 am on Saturday, 9 January 2021, the appellant committed various offences in Nollamara. At about 9.30 am, the 41‑year‑old victim of his first offence was leaving her home on Morley Drive, with her daughter. As she reversed her car down the driveway of her home, she looked in the side mirror and saw the appellant walking up the driveway holding a golf club. Fearing for her safety, the victim wound her car windows up and locked the doors. The appellant went to the rear of the victim's house and looked through some windows before he went into an open shed and took a hammer from a box. Brandishing both the stolen hammer and the golf club, the appellant then walked towards the victim, who was still sitting in her car. The victim reversed her vehicle to get away from the appellant. Eventually, the appellant walked past the car and headed off along Morley Drive. These facts relate to the charge of stealing, which was count 1 on the indictment, as well as a charge of trespass and a charge of carrying an article with intent to cause fear, which were before the court in the s 32 notice.
2. At some point between 9.30 am and 10.05 am, the appellant entered a secure garage at a nearby address in Merston Street, through an open rear door. The 53‑year‑old victim was inside his home at the time. The appellant searched through the victim's car that was parked in the garage before leaving the property, empty handed. This constituted a further charge of trespass, which was in the s 32 notice.
3. In relation to count 2 on the indictment, a short while later the appellant entered another home on Merston Street, through an open bedroom window. Once inside, he searched the home and rummaged through cupboards and drawers in two bedrooms, looking for items of value. The victim, a 73‑year‑old woman, was home alone and cooking in the kitchen. When the victim saw the appellant in her home, she screamed at him to get out and threatened to call the police. The appellant raised his finger to his lips as if to tell her to keep quiet. The appellant was holding a plastic shopping bag at the time, and he raised it over his head in a threatening way. The victim ran out of the house and shouted for help. When two neighbours came to help, she decided to go back inside her home to call the police. However, while she was on the telephone, she saw the appellant by her back door. He was holding her bag which contained her coin collection valued at about $4,000. When the victim asked him to leave the coin collection, the appellant raised the bag over his head and left.
4. The victim then ran out the front of her home and told her neighbours that the appellant was in her house again. When the neighbours returned to her home to check, they did not find the appellant. However, when the victim went back inside and picked up the telephone, she saw the appellant walk past her front window. Neighbours then gave chase, but the appellant was too fast, and he escaped. The victim later found the hammer that the appellant had previously stolen on her son's bed. The following day, the victim's coin collection was found in a neighbour's back garden.
5. At some point between 10.45 am and 11.15 am, the appellant entered another premises on Morley Drive, through an unlocked rear sliding door. The victim was a 20‑year‑old man, who came home to find the appellant inside his bedroom. The appellant told the victim that he was hiding from the police, but the victim told him to leave. The appellant then picked up a cricket bat and walked to the front door. Once at the front door, the victim took the cricket bat from the appellant and the appellant left. This incident was the subject of a trespass charge.
6. In relation to count 3 on the indictment, at some point between 10.45 am and 11.15 am, the appellant entered another premises on Morley Drive by entering a garage through an unlocked door. The victim, a 36‑year‑old woman, was at home with her two sons, aged 10 years and 5 years. One of the victim's sons told her that there was a man in their backyard and that he was touching her bag. When the victim investigated, she saw that her bag had been moved from one table to the other, although nothing appeared to be missing. She then saw that the back door to the garage was open and then found the appellant trying to steal the car. The victim screamed and the appellant got out of the car. When the victim screamed louder and shouted for help, the appellant raised his arm as if he was going to throw something at her and he then left through the open garage door. A short while later, two neighbours saw the appellant walk out of the victim's garage and down the driveway, and one of them filmed the appellant as he was walking away.
7. The appellant was arrested at about 12.00 pm, after a short foot chase. He declined to participate in an electronic record of interview.

1. The appellant was 24 years old at the time of the offending and was 27 years of age at the time of sentencing. The sentencing judge found that the appellant experienced a very deprived childhood. The appellant had no recollection of his father, as he had passed away when the appellant was young. His mother had suffered extensive problems. She was a drug user and a poor parent. On one occasion the appellant's mother self‑harmed in front of him and he had to call for emergency assistance. Her Honour concluded that in all probability, the appellant's mother suffered from a serious mental health condition. The appellant also witnessed domestic violence. At times, the appellant and his four siblings had to seek food and clothing from rubbish bins. At one point, the appellant's family home burnt down. The appellant was also the victim of sexual abuse that occurred while he was in foster care, which the sentencing judge found had lasting effects on him. We will return to this issue later, in the context of ground 1.
2. At the time of sentencing, the appellant was in a relationship with a woman, and they had a 12‑month‑old son together. He was also a father figure to his partner's 5‑year‑old daughter. The bulk of the appellant's education had been provided to him while he had been in detention. Further, despite his deprived childhood, the appellant had reasonable social skills and he was able to express himself well.
3. The appellant began consuming alcohol and smoking cannabis from an early age, and he accepted that he was affected by methylamphetamine at the time he committed the offences. He had an extensive criminal record, which revealed that he had committed numerous offences as a child. As an adult, the appellant had also amassed several convictions for drug‑related offences, assaults, stealing, trespass and some traffic‑related offences, and he had been sentenced to serve terms of imprisonment.
4. A prison chaplain provided a letter of support for the appellant. The appellant had voluntarily sought out the chaplain's support and guidance on numerous occasions. In his letter, the chaplain said that he had been impressed with the appellant's emotional and character growth over the 15 months since they first met, and he thought that the appellant could make a positive contribution to society.
5. At the time of sentencing the appellant had spent a total of 533 days in custody. The sentencing judge took that period into account by ordering that his sentence of imprisonment be backdated to commence on 21 May 2021.

1. Counsel who appeared on behalf of the appellant at the sentencing hearing relied on an outline of written sentencing submissions. He also relied on a report written by Dr Phil Watts, an Adjunct Associate Professor in Clinical Psychology, dated 30 March 2022, and a report by a clinical psychologist, Ms Karen Goodall‑Smith, dated 14 April 2014. We will refer to those reports in more detail later in these reasons. Counsel also invited the sentencing judge to have regard to a letter of apology written by the appellant, as well as the letter of support written by the prison chaplain to which we have already referred.
2. In his written submissions, counsel accepted that the only appropriate sentence in relation to the two offences of aggravated burglary was a term of immediate imprisonment. Counsel explained that the offending was precipitated by an argument between the appellant and his partner, during which the appellant's partner referred to the sexual abuse he had been subjected to as a child. Counsel said the appellant suffers from post‑traumatic stress disorder (PTSD) because of the sexual abuse and so he reacted poorly and then went on a 'rampage'. However, counsel expressly conceded that the appellant had been under the influence of methylamphetamine at the time of the offending. It was submitted that the appellant's behaviour could reasonably be described as 'erratic, unusual and consistent with someone who is "high" on methylamphetamine'.[1]
3. Counsel also submitted that the appellant had very little memory of the offending, which he ascribed to his methylamphetamine use and the symptoms of PTSD. According to the written submissions, the appellant accepted that his actions were inexcusable and understood that the victims of his crimes had been traumatised, and that they feared being hurt. In relation to mitigating factors, the written submissions referred to the appellant's guilty pleas. In that regard, pleas of guilty had been entered in the Magistrate's Court, but only after the appellant had appeared at 16 committal disclosure hearings and entered into negotiations with the prosecution. Counsel also relied on the appellant's letter of apology, as well as on the appellant's deprived background.
4. The written submissions also referred to the appellant's mental health. In that regard, it was submitted that the appellant had been diagnosed with PTSD in 2014 by Ms Goodall‑Smith, as well as having been diagnosed with attention deficit hyperactivity disorder when he was young. It was suggested that a person suffering from a psychiatric illness is not an appropriate vehicle for general deterrence. However, while it was not submitted that the appellant's mental functioning was impaired at the time of the offending because of the PTSD, reference was made to R v Verdins[2] and Krijestorac v The State of Western Australia,[3] both of which are authorities concerned with the relevance of impaired mental function in sentencing.
5. In relation to the circumstances of the offending, in his oral submissions counsel said that the facts relied on by the State were accepted. He said that:[4]

Mr Cameron had been using meth [sic]. He had an argument with his girlfriend ... [that] triggered Mr Cameron and he went on a rampage. As he described it 'I popped. I popped' and just he couldn't control his emotions, how to deal with it and he just went on this ridiculous terrifying rampage, terrifying for the victims, no doubt. But your Honour will note from the facts at the very least that the fact he was hiding in one place saying, 'I'm hiding from the police' and telling one of the victims, 'Shh, be quiet' all would indicate that he wasn't really in his right state of mind and that he was panicked. He reacted. He has very little recollection of this episode of offending and it was a single episode of offending. This is unlike cases where there's offending on one day and offending on another day with another complainant completely separate.

1. Later in his plea in mitigation, counsel said that the appellant never intended to hurt or scare anyone, and that he was 'just not in his right state of mind'.[5] He suggested that the video footage of the appellant that had been taken by one of his victims, together with the description of his behaviour provided by an arresting police officer, were consistent with the appellant being under the influence of drugs at the time his committed the offences.
2. Counsel also explained why it had taken so long for the appellant to enter pleas of guilty and then submitted that the appellant's prospects of rehabilitation were good.
3. In her oral submissions, the State prosecutor who appeared at sentencing referred to the need for general and personal deterrence, and for need to protect the community. She also referred to the vulnerabilities of the various victims. The prosecutor submitted that aspects of the offending were aggravated because the appellant had armed himself and had acted in a persistent manner over the course of what she said was a 'burglary spree'. The prosecutor accepted that the appellant's guilty pleas were mitigating and, while she agreed that the offences were committed over a relatively short period of time, submitted that, as they involved separate victims, some degree of accumulation of sentences was required.
4. The sentencing judge proceeded to sentence the appellant immediately after hearing submissions from the parties. Her Honour adopted the facts read by the State prosecutor, and which had been accepted by the appellant's counsel, and said that she incorporated those facts into her sentencing remarks. Her Honour then summarised those facts in a manner consistent with our summary of the facts set out earlier in these reasons.
5. Her Honour then made findings concerning the appellant's personal circumstances, before turning to deal with what she considered were the aggravating factors that emerged from the facts. She found that the appellant's offending was aggravated by the fact that he was under the influence of methylamphetamine at the time and that the offences represented a 'spree', albeit one that occurred over a short period of time. In relation to the first trespass offence, the sentencing judge referred to the fact that the victim feared for her safety and for the safety of her daughter. In relation to the first aggravated burglary offence, which took place at Merston Street, her Honour referred to the fact that the appellant had raised a bag over his head, as if to threaten the victim. Her Honour also noted that during a trespass offence that the appellant committed later at a home on Morley Drive, the appellant had picked up a cricket bat after the victim asked him to leave. While the sentencing judge accepted that there was no suggestion that the appellant used the bat to threaten the victim, she concluded that it may have given the victim the impression that he was prepared to use it as a weapon, if necessary.
6. In relation to mitigating factors, her Honour took into account the appellant's pleas of guilty and decided to afford him a discount of 15% in accordance with s 9AA of the Sentencing Act 1995 (WA). The sentencing judge also took into account, as mitigating factors, the appellant's age, his deprived background, the fact that the appellant was remorseful, and his good prospects of rehabilitation.
7. Given that the appellant asserts in ground 1 that the sentencing judge erred in her approach to, and in making findings about, his mental health, it is important to set out her Honour's sentencing remarks about this topic in full. In that regard, after recording her findings in relation to mitigating factors, the sentencing judge said the following:

While you were diagnosed with post-traumatic stress disorder in 2014, Dr Watts has done a much more recent assessment. The psychological testing Dr Watts carried out suggested psychological issues including moderate depression, moderate anxiety, post-traumatic stress symptoms and other issues. However, Dr Watts did note the scale on the testing was elevated which suggests you may have exaggerated complaints and problems. He saw that as a cry for help rather than deliberately trying to paint a negative picture. It seems to me Dr Watts did not go as far as positively diagnosing any particular mental health condition. In this regard, I refer to his conclusions at paragraph 16. He considered the testing was consistent with significant mental health issues which are likely to include post-traumatic stress disorder and personality disorder. I am not prepared to find that your mental health issues are such that you are not an appropriate vehicle for general deterrence or that your moral culpability is reduced due to your mental health issues. You were under the influence of methylamphetamine at the time of the offending which I find is the predominant cause of your offending.[6] (emphasis added)

1. Relevantly, [16] of Dr Watts' report was in the following terms:

The testing was consistent with significant mental health issues which is likely to include PTSD and personality disorder from childhood abuse.

1. As can be seen from the emphasised portion of the sentencing remarks, her Honour found that Dr Watts had not diagnosed the appellant with any mental health condition, although she accepted that Dr Watts had concluded that testing indicated that the appellant was suffering from a significant mental condition that was likely to include PTSD and a personality disorder. Her Honour was not, however, prepared to find that any such mental condition had the effect of reducing the appellant's moral culpability, or that it meant that the appellant was not an appropriate vehicle for general deterrence. Instead, she found that the 'predominant cause' of the appellant's offending was the influence that methylamphetamine had on him at that time.
2. The sentencing judge ultimately decided that the only appropriate sentences in relation to the offences of aggravated burglary were immediate terms of imprisonment. She concluded that the other offences, standing alone, would not have attracted terms of immediate imprisonment. However, as terms of imprisonment were to be imposed for the aggravated burglary offences, the same type of sentence was also required for the other offences. The appellant does not take any issue with the type of sentences that were imposed.
3. After acknowledging the need to give effect to the totality principle, her Honour then imposed the following sentences:

Aggravated home burglary and commit an offence therein

Aggravated home burglary with intent to commit an offence therein

Section 32 notice offences

1. The sentencing judge said that she would have imposed a sentence of 2 years' imprisonment in relation to count 3 on the indictment but reduced that sentence to 1 year and 6 months for totality reasons. This sentence was then ordered to be served cumulatively on the 2‑year sentence imposed for count 2, producing the total of 4 years' imprisonment. All the other sentences were ordered to be served concurrently and an order was made that the sentence was to commence on 21 May 2021.

1. As we have already noted, ground 1 alleges that the sentencing judge erred by not sentencing the appellant on the basis that he had a mental health condition. In his written submissions, counsel for the appellant submitted that the gravamen of ground 1 is that her Honour erred in not accepting that Dr Watts had diagnosed the appellant with a mental health condition. With respect to the sentencing judge, we agree with that submission.
2. Before commencing his oral plea in mitigation, counsel who appeared for the appellant at sentencing confirmed with her Honour that she had received the report authored by Ms Goodall Smith, dated 14 April 2014, as well as Dr Watts' report dated 30 March 2022.
3. According to Ms Goodall-Smith's report, she saw the appellant at Banksia Hill Detention Centre on 10 March 2014 for an assessment of his psychological wellbeing in relation to a criminal injuries compensation claim. That claim concerned allegations that the appellant had been sexually abused by an older girl, while in foster care. Ms Goodall‑Smith concluded that the appellant had suffered from, and continued to suffer from, unresolved PTSD because of the sexual abuse. She also said that '[i]t is possible that the symptoms of PTSD can be addressed. However, in my opinion, [the appellant] will experience a permanent vulnerability to PTSD, should he be exposed to experiences that trigger memories and feelings associated with the sexual abuse'.[7]
4. Ms Goodall-Smith opined that the appellant would benefit from treatment for PTSD and adjustment disorder, and would require up to 26 treatment sessions over a one‑year period for the PTSD. She observed that he would benefit from weekly sessions for a six‑month period, and then three ‑ four weekly sessions for at least two years, but preferably for an indefinite period for his adjustment disorder.
5. Dr Watts saw the appellant on 22 March 2022. Dr Watts said that he had previously assessed the appellant in 2015 in the context of the appellant's application for criminal injuries compensation, however that assessment was not provided to the sentencing judge, and it is not before this court. Dr Watts said that he had spent nearly two and a half hours assessing the appellant, which included psychological testing. Dr Watts indicated that he had been provided with copies of several statements of material facts, which related to the charges that were before her Honour as well as some other unrelated matters, and that he had been given a copy of the appellant's criminal history.
6. In the course of setting out some background information relating to the appellant, Dr Watts said:[8]

Mr Cameron did not report any meaningful psychological treatment over the years. My previous assessment in 2015 indicated the diagnosis of Post-Traumatic Stress Disorder (PTSD) from childhood abuse. I noted there was an earlier report by Karen Goodall-Smith who had diagnosed him with PTSD the previous year. He also indicated that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was younger but had not been medicated for years.

1. Dr Watts then briefly referred to some of his clinical observations, in which he said that the appellant appeared to be 'reasonably cognitively intact' but with a 'fair possibility that there are some subtle impairments' given his own drug use and his mother's substance abuse. As we have already noted, in relation the psychological testing that was carried out, Dr Watts said (at [16] of his report):

The testing was consistent with significant mental health issues which is likely to include PTSD and personality disorder from childhood abuse.

1. Later in his report, Dr Watts recounted what the appellant had told him about his offending behaviour. In that context, he said that the appellant had said that he had been able to talk to his partner about some of his childhood experiences, something that he had never spoken to anybody else about. The appellant also told Dr Watts that he had been using drugs just before he started offending, and that he felt that his partner had made some comments to him that amounted to accusations that he was a paedophile. Dr Watts recorded that the appellant told him that he reacted to those comments like a 'bubble' went off in his brain, and he got angry with his partner. The appellant told Dr Watts that immediately afterwards, he went into people's houses, but he said that he was in a daze. He also told Dr Watts that he did not remember much of what he did, that he did not take much property, and that he did not even remember why he had broken into the houses.
2. Dr Watts said that:[9]

[t]his dissociative type of reaction is not uncommon when trauma memories are triggered. It is difficult to know how aware he was of what he was doing during these offences. However it would appear it was predominantly reacting rather than any type of planned action.

1. In the final part of his report, under the heading 'Discussion', Dr Watts noted that it was evident that the appellant had never addressed his trauma, and that he did not like talking about it with other people. Doctor Watts also said that given the appellant's childhood, it was of little surprise that he has never opened up to therapy opportunities. Finally, after expressing some opinions about the prospects of rehabilitation, Dr Watts concluded with the following opinion:[10]

In conclusion, I am of the opinion that Mr Cameron suffers from PTSD from significant childhood disruption and abuse, has coped by drug use and engaged in crime to support the drugs, which do provide some relief from the trauma.

1. The prosecutor did not raise any objections to either of the psychological reports and did not seek to cross‑examine the authors, or to adduce any evidence to contradict or undermine the opinions expressed in those reports at the sentencing hearing. In fact, the prosecutor did not make any submissions at all about either of the psychological reports.
2. In the circumstances, it was not reasonably open to the sentencing judge to reject the expert opinions that were expressed in the psychological reports.[11]
3. In our view, the unchallenged opinions expressed in the two psychological reports incontrovertibly established that the appellant was suffering from PTSD at the time he committed the offences. Ms Goodall-Smith's report established that the appellant was suffering from PTSD prior to 10 March 2014, and that he was permanently vulnerable to the symptoms of that disorder if exposed to experiences that might trigger memories and feelings associated with sexual abuse. Further, Dr Watts' report established that he had previously diagnosed the appellant with PTSD in 2015. Importantly, in the context of Ms Goodall‑Smith's conclusions about the enduring nature of the appellant's vulnerabilities to the symptoms of PTSD, Dr Watts noted that the appellant had not sought out or obtained any treatment for that disorder since his diagnosis in 2015.
4. Dr Watts' report also established that the testing he carried out on the appellant in 2022, after the commission of the offences, was consistent with the presence at that time of significant mental health issues that were likely to include PTSD. Finally, and most significantly, in the final paragraph of his report, Dr Watts very clearly expressed an opinion that the appellant was suffering from PTSD at the time he saw him in March 2022.
5. In these circumstances, it was not reasonably open to the sentencing judge to find, as she did, that Dr Watts did not positively diagnose any particular mental health condition. The clear effect of the unchallenged expert evidence relied on by the appellant was that Dr Watts had diagnosed the appellant as suffering from PTSD. Further, that diagnosis was amply supported by the opinions expressed by Ms Goodall‑Smith in 2014, including her views about the enduring nature of the appellant's PTSD and the need for treatment, particularly when considered in the context of the fact that the appellant had not received any treatment since she assessed him.
6. However, this conclusion does not dispose of this ground of appeal. Pursuant to s 31(3) of the Criminal Appeals Act 2004 (WA), unless, under s 31(4)(a) of that Act, this court is of the opinion that a different sentence should have been imposed, it must dismiss the appeal.
7. In dealing with the question of whether a different sentence should have been imposed, it is important to note some other aspects of the sentencing remarks. Specifically, her Honour was 'not prepared to find that [the appellant's] mental health issues are such that [he is] not an appropriate vehicle for general deterrence or that [his] moral culpability is reduced due to [his] mental health issues'.[12] Further, the sentencing judge also found, in this context, that the predominant cause of the offending was the effects of methylamphetamine.[13] Neither of these conclusions are expressly challenged having regard to the terms of the grounds of appeal.
8. Under questioning from members of the coram at the hearing of the appeal, the appellant's counsel ultimately submitted, in effect, that ground 1 should be understood as including a challenge to those other conclusions reached by the sentencing judge to which we have just referred. In effect, the appellant's counsel submitted that both conclusions reached by her Honour were infected by her erroneous finding that Dr Watts had not diagnosed the appellant with any particular mental health condition. Counsel submitted that her Honour should have found that Dr Watts had diagnosed the appellant with PTSD and that the appellant offended because he was affected by both the effects of methylamphetamine and the active symptoms of PTSD, although he submitted that it was not possible to say which was a more predominant cause of the offending.
9. Counsel also submitted that her Honour should have taken the diagnosis of PTSD into account as part of the appellant's personal circumstances as it was relevant to issues of personal deterrence and rehabilitation.
10. The question of whether the sentencing judge erred, in effect, in finding that the appellant was an appropriate vehicle for general deterrence and that his moral culpability was not reduced due to his mental health issues, must be approached on the basis that, contrary to her Honour's finding, the appellant was suffering from PTSD at the time he committed the offences, consistent with the conclusions we have expressed to this point concerning ground 1.
11. The relevant legal principles to be applied in the context of an offender suffering from a mental impairment at the time of committing an offence are well settled. The following explanation of those principles by Wheeler JA in Krijestorac v The State of Western Australia[14] has been repeatedly referred to by this court:

So far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. Counsel for the appellant also drew the court's attention to the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269. That case contains a useful survey of decisions from a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 and applied in a number of Australian jurisdictions since that date continue to apply. They are that a mental or psychological condition falling short of insanity may be relevant to sentencing in a number of ways:

'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. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. [Verdins at [1], quoting Tsiaras]'

Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):

'(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.'

The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State. (emphasis in original)

1. More recently, in Hiemstra v The State of Western Australia,[15] this court made several observations about the effect of mental illness or psychological difficulties, falling short of insanity, on the types and lengths of sentences. In summary:

(1) The effect of mental illness or psychological difficulties, falling short of insanity, on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms.

(2) An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces moral blameworthiness or culpability must prove on the balance of probabilities that the condition did impair their mental functioning to such an extent that it does reduce their blameworthiness or culpability.

(3) A mental impairment that has not been self‑induced and which has a causal relationship to the offence can impact upon considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender. However, it is not the law that general deterrence is irrelevant once it is proved that an offender has a mental impairment. In many cases, general deterrence will be 'sensibly moderated' and given less weight because it is inappropriate to use the offender to make an example to others. It would only be in extreme cases in which considerations of general deterrence would be eliminated entirely. In relation to personal deterrence the law assumes that an offender will be deterred from committing an offence because they are able to appreciate that they will be punished if the offence is committed and detected. However, when an offender's mental impairment affects their ability understand this, the effect of personal deterrence will be moderated. The extent to which it will be moderated will depend upon the extent to which the offender can reason.

(4) Although the existence of a causal connection between a mental impairment and the commission of an offence might reduce the importance of general deterrence, it may at the same time increase the importance of specific deterrence or the need to protect the public. In that regard, it is also possible that the presence of a mental impairment may be relevant as a sentencing consideration in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance.

(5) Ultimately, it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.

1. Accordingly, it does not automatically follow from our conclusion that the sentencing judge ought to have found that the appellant was suffering from PTSD at the time he committed the offences that her Honour was then required to find that he was not an appropriate vehicle for general deterrence or that his moral culpability was reduced. It also does not follow that the sentencing judge erred in concluding that the predominant cause of the offending was the effects of methylamphetamine. The critical question is whether, based on the evidence that was before the sentencing judge, the appellant established on the balance of probabilities that his PTSD contributed causally to the commission of the offences.
2. At the hearing of the appeal, counsel for the appellant was asked to identify the evidence he relied on in support of the submission that the sentencing judge ought to have found that there was a relevant causal connection between the appellant's mental impairment and the commission of the offences. In response, counsel referred to the following paragraph taken from Dr Watts' report, which we have already mentioned earlier in these reasons:

[t]his dissociative type of reaction is not uncommon when trauma memories are triggered. It is difficult to know how aware he was of what he was doing during these offences. However it would appear it was predominantly reacting rather than any type of planned action.

1. Dr Watts' reference to a 'dissociative type of reaction' related to the appellant's description of his state of mind during his commission of the offences that he had given to Dr Watts during a clinical assessment. In that regard, the appellant told Dr Watts that he 'was in a daze', that he did not remember the details of what he was doing, and that he did not recollect why he had broken into the houses.
2. In our view, this evidence falls well short of establishing, on the balance of probabilities, that the appellant's PTSD contributed causally to the commission of the offences. The appellant's lack of memory about the details of what he did, and why he did it, does not of itself establish that he was affected by any symptoms associated with PTSD or that this or any other mental impairment meant that he did not have the capacity to know what he was doing, or to appreciate the gravity of his conduct, at the time he was committing the various offences. It is true that Dr Watts said, by reference to the appellant's purported lack of memory, that '[t]his dissociative type of reaction is not uncommon when trauma memories are triggered'. However, Dr Watts did not go further and express any opinion that the appellant was in fact experiencing dissociation at the time of the offence or, if he was, that it was because of PTSD. The high point of Dr Watts' opinion in that regard was that it was 'difficult to know how aware [the appellant] was of what he was doing during these offences'. (emphasis added)
3. In any event, the unchallenged facts on which the appellant was sentenced, including the video footage that was taken by some of his victims, do not suggest that the appellant was acting in a dissociated state. Although it might be accepted, consistent with the submission that was made by his counsel at sentencing, that the appellant was affected by methylamphetamine, he was nevertheless clearly aware of the presence of the occupants whose homes he broke into, and of the properties onto which he trespassed, particularly as he armed himself and made threatening gestures. He was also able to search for items of value and managed to steal a coin collection. On one occasion, when confronted by a victim in his home, the appellant said that he was hiding from the police. He also ran away when two of his victims attempted to apprehend him, and he tried to avoid being arrested.
4. Dr Watts' opinion, that it appeared as though the appellant was 'predominantly reacting rather than any type of planned action', does not assist the appellant either. This is because Dr Watts did not express an opinion that the appellant was 'reacting' because of the effects of PTSD. In any event, it is obvious that the appellant may have been 'reacting' for any number of other reasons, including because he was just angry with his partner and because he was under the influence of methylamphetamine at the time.
5. At the hearing of the appeal, counsel for the appellant also submitted, in effect, that Dr Watts' report established that there was a relevant causal connection between the appellant's PTSD and his offending behaviour in a more indirect way. Counsel appeared to suggest that Dr Watts' opinions supported a conclusion that the appellant used methylamphetamine because he was suffering from PTSD, and that this then resulted in him committing the offences. It was submitted in that way that there was a relevant causal connection between the PTSD and the offending, such that the need for general deterrence was reduced and the appellant's moral culpability was ameliorated.
6. There are some difficulties with this submission. Fundamentally, there is no evidence that the appellant was using methylamphetamine on the day he committed the offences because he was suffering from the symptoms of PTSD. In any event, according to what the appellant said to Dr Watts, he would use methylamphetamine to cope with the trauma that resulted in him suffering from PTSD. In that regard, the appellant told Dr Watts that when he used methylamphetamine, the strength of his traumatic thoughts would be significantly reduced. Accordingly, if the appellant was suffering from the symptoms of PTSD on the day of his offending, those symptoms must have been ameliorated by the effects of the methylamphetamine that he consumed earlier that day.
7. In our view, notwithstanding the sentencing judge's erroneous conclusion that the appellant had not been diagnosed by Dr Watts with PTSD, the appellant has failed to establish that he was not an appropriate vehicle for general deterrence or that the PTSD that he suffered from was causative of his offending.
8. It should also be noted that counsel who appeared for the appellant at sentencing did not, at any time, submit that the sentencing judge should conclude that there was a relevant causal link between the appellant's PTSD and his offending behaviours. Instead, counsel submitted that the offending occurred because the appellant was affected by the methylamphetamine that he had taken earlier that day. In those circumstances it is unsurprising that her Honour concluded that it was the influence of methylamphetamine that was the predominant cause of the appellant's offending.
9. In our view, having regard to all the evidence that was before the sentencing judge, and after taking into account the error in relation to Dr Watts' diagnosis, her Honour did not err in concluding that she was not prepared to find that the appellant's mental health issues were such that he was not an appropriate vehicle for general deterrence or that his moral culpability was reduced due to his mental health issues. Nor did the sentencing judge err in finding that the predominant cause of the offending was the effects of methylamphetamine. In the absence of proof on the balance of probabilities that the appellant's PTSD contributed to his offending behaviour, the only reasonable conclusion is that it was the effects of methylamphetamine, in circumstances in which the appellant's partner had made some hurtful comments, that was the dominant driver of the appellant's behaviour.
10. It is against that background that it is then necessary to determine whether a different sentence should have been imposed.

1. The maximum penalties for the offences are as follows:

Aggravated home burglary and commit an offence therein

Aggravated home burglary with intent to commit an offence therein

1. We have already set out the factual basis on which the appellant was sentenced, and the appellant's personal circumstances that were taken into account by the sentencing judge. In the light of our conclusions about ground 1 to this point, it is also necessary to take into account the fact that the appellant has been suffering from PTSD since at least 2014. In our view, that fact forms part of the appellant's personal circumstances. Further, the diagnosis of PTSD is a direct consequence of his deprived childhood because the genesis of that condition was events that occurred when he was in foster care at a very young age.
2. The aggravated burglary offences committed by the appellant were serious. They were committed during the day, on residential properties when the occupants were in their homes, where they were entitled to feel safe. It would have been a very traumatic experience for the people who came across the appellant when he was on their property, and in their home, without their consent. One of the victims was 73 years old. Another victim was home alone with her two young children. The appellant behaved in a threatening way when he was confronted.
3. The offences of trespass were also serious. One of those offences could well have amounted to a more serious offence of burglary, given the appellant had entered a secure garage where he searched through a car. Further, during one of the trespass offences, the appellant was armed with a golf club and also with a hammer. Based on the video footage that was taken from the dashcam in the victim's car, he was behaving erratically and in a threatening manner.
4. We have already referred to the sentencing judge's findings about the appellant's personal circumstances. To those findings must be added the fact that the appellant had been suffering from PTSD because of sexual abuse he experienced as a young child, and that he was suffering from that disorder at the time he committed the offence.
5. There are some mitigating factors, including the appellant's pleas of guilty. However, those pleas were not made at the first reasonable opportunity and were only entered after numerous appearances in the Magistrate's Court. The sentencing judge also found that the appellant was genuinely remorseful, that he had taken responsibility for his actions, that there were good prospects for his rehabilitation, and that his risk of reoffending had reduced since he had seen Dr Watts in March 2022.
6. The appellant's deprived childhood, details of which are set out in the two psychological reports that were before the sentencing judge, and to which we have already referred in some detail, is also a mitigating factor. The circumstances of the appellant's childhood and his PTSD (in particular, his vulnerability to the symptoms of PTSD) must be taken into account, as part of his personal circumstances, in assessing his moral culpability or the extent to which he should be punished. Those factors must be given 'full weight',[16] noting that this consideration must also be balanced with the seriousness of the offending.[17]
7. This court has previously observed that the circumstances in which burglary offences can be committed vary widely and therefore attract a wide range of sentences, although they are ordinarily met with terms of immediate imprisonment. Home burglaries are viewed as being particularly serious offences and are generally seen as requiring substantial penalties to recognise considerations of personal and general deterrence and to reflect the prevalence of the offence. When burglaries occur on homes that are known or suspected to be occupied, and threats of violence are used, those offences are generally considered to be more serious than burglaries that lack those characteristics. It has been recognised that sentences for home burglaries need to be firmed up, and that this is an ongoing process.[18]
8. In his written submissions, counsel for the appellant referred to three previous decisions of this court in support of the contention made in the context of ground 2 that the total effective sentence of 4 years' imprisonment infringed the first limb of the totality principle. Although we are considering whether a different sentence should have been imposed, and not the distinctly different question of whether the sentencing judge erred in the exercise of her sentencing discretion,[19] we have taken those cases into account.
9. Counsel referred to the decisions of Eldridge, Robson v The State of Western Australia[20] and Beynon v The State of Western Australia,[21] in which appeals against sentence were dismissed.
10. The facts in Beynon were that in the early hours of the morning, the appellant stole some items from the victim's car, and then stole a mountain bike valued at approximately $1,000 from inside a garage. A female victim was at home alone at the time and became frightened when she realised that a burglary was taking place. In the early hours on a different day, the appellant and a co‑offender entered a home through a garage door, while another co‑offender stayed outside as a lookout and a getaway driver. While inside the victim's home, the appellant stole several items including a purse, a bank card, some cash, some jewellery, and some sunglasses. The appellant was charged with and pleaded guilty to two offences of aggravated home burglary, and he was afforded a 25% discount for his pleas of guilty. The court concluded that although the offending did not involve the use of weapons, there were no direct confrontations with the occupiers of the house, and the value of the property stolen was relatively modest, the offences were not without serious features. Leave to appeal against the total effective sentence of 2 years 4 months' immediate imprisonment was refused.
11. In Robson, the 24‑year‑old appellant was in front of the victim's house in the early hours of the morning, shouting that he wanted to gain entry. He was drunk. The appellant knew that someone was present in the house, namely a 74‑year‑old person, who lived alone and who refused to allow him inside. The appellant smashed a window and gained entry to the home, where he ransacked a bedroom, stealing two gold watches, a silver watch, two gold chains and a wallet containing cards and $700 in cash. The victim fled from her home in terror and sought help from neighbours. The appellant pleaded guilty to an offence of aggravated home burglary and was afforded a 20% discount on his head sentence. Leave was refused to appeal against a sentence of 2 years and 3 months' immediate imprisonment.
12. In Eldridge, the appellant was convicted after trial of one offence of home burglary, which carried a maximum penalty of 18 years' imprisonment. The appellant was sentenced to a term of 5 years' immediate imprisonment. He was found to have broken into an unoccupied home, during which he smashed windows in a car and rummaged through the victim's belongings. A safe, which was hidden in a bedroom, had been exposed and damaged. Items in excess of $14,000 in value were stolen. The appellant had an extensive criminal history and was a repeat offender, with the result that he was liable to a mandatory minimum sentence of 12 months' imprisonment. The court concluded that the sentence of 5 years' imprisonment was not manifestly excessive.
13. In our view, having regard to all the circumstances to which we have referred, no lesser different individual sentences should have been imposed in the present case. Bearing in mind the obvious differences in the circumstances in which the offences were committed, and in the offenders' personal circumstances, none of the cases that we were referred to suggest otherwise.
14. The individual sentences that were imposed on the appellant were commensurate with the seriousness of each of the offences, having regard to the relevant maximum penalties, the circumstances in which they were committed, and the relevant aggravating and mitigating factors. Further, the total effective sentence of 4 years' immediate imprisonment was an appropriate measure of the overall criminality of the appellant's criminal behaviour, having regard to all relevant facts and circumstances, including the appellant's personal circumstances to which we have already referred.
15. In Abraham v The State of Western Australia,[22] it was confirmed that this court retains a discretion to refuse the grant of leave to appeal on a ground which alleges an express error if the court is satisfied that it is not reasonably arguable that a different sentence should have been imposed. In our view, it is not reasonably arguable that a lesser different sentence should be imposed.
16. Accordingly, while ground 1 was made out to the extent identified in [34] ‑ [48] above, it was appropriate that leave to appeal should be refused.

1. Given our conclusion in relation to ground 1, it is unnecessary for us to deal with ground 2. As we have already concluded that no lesser different total effective sentence should have been imposed, notwithstanding the sentencing judge's erroneous finding the subject of ground 1, there can be no prospect of establishing implied error of the kind contended for in ground 2.
2. For those reasons, leave to appeal in relation to ground 2 was also refused.

1. Leave to appeal being refused in relation to both grounds of appeal, the appeal was taken to have been dismissed.
2. For these reasons, on 13 October 2023 the court made orders that:
   1. The application for an extension of time within which to appeal is granted.
   2. Leave to appeal in relation to ground 1 is refused.
   3. Leave to appeal in relation to ground 2 is refused.
   4. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Defence Outline of Submissions on Sentence [25].

[2] R v Verdins [2007] VSCA 102.

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

[7] Report of Karen Goodall-Smith dated 14 April 2014, page 5.

[8] Report of Dr Watts dated 30 March 2022 [9].

[9] Report of Dr Watts dated 30 March 2022 [20].

[10] Report of Dr Watts dated 30 March 2022 [24]

[11] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim 138.

[15] Hiemstra v The State of Western Australia [2021] WASCA 96 [58] - [65].

[16] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ); Peterson v The State of Western Australia [2019] WASCA 207.

[17] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [57] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

[18] Brindley v The State of Western Australia [2019] WASCA 153; Eldridge v The State of Western Australia [2020] WASCA 66 [64]; Hewins v The State of Western Australia [2023] WASCA 2 [48] ‑ [49].

[19] Mountain v The State of Western Australia [2009] WASCA 161 [10] (McLure P), [16] (Buss JA).

[20] Robson v The State of Western Australia [2020] WASCA 153.

[21] Beynon v The State of Western Australia [2021] WASCA 153.

[22] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [81] (Buss JA), [1] (McLure P).