PRACTICE AND PROCEDURE - Extension of time - Application for leave to appeal against sentence.

1 I have had the advantage of reading the draft reasons of Hollingworth AJA and agree with her that the application should be dismissed. I wish only to make brief comments on two matters. The first matter relates to the submission made by counsel for the applicant, under cover of grounds 1 and 2, that the learned sentencing judge did not accord procedural fairness to the applicant. The second matter concerns the question whether Dr Sullivan's report of 25 March 2010 was admissible as fresh evidence.

2 At the plea hearing, it was common ground that the applicant was mentally ill. Counsel for the applicant submitted that the Crown had conceded that, as a consequence of his mental illness, the applicant's moral culpability for the offence was reduced and that the principle of general deterrence should be moderated in sentencing him. Contrary to this concession, the judge had not taken account of these matters in sentencing the applicant.

3 At the plea hearing, Mr Davey's counsel submitted that the applicant's mental condition 'bears on moral culpability, it bears on general deterrence and indeed if one goes to Tsiaras[1] it bears on specific deterrence as well'. He then said that the fact that the applicant had previously been convicted of the offence of assisting a suicide was 'a very serious sentencing consideration' but that once that was taken into account the judge should 'insofar as you can, moderate the sentence because of my client's psychiatric condition'. That was the full extent of counsel's submissions about the relevance of the applicant's psychiatric condition to the process of sentencing him.

4 In his submissions, counsel for the Crown said that:

What I do say, Your Honour, is that in applying the principles in Yaldiz[2] and Tsiaras[3] and other cases such as Kelly,[4] Your Honour must not lose sight of the fact that this crime is the most serious crime on the criminal calendar so far as offences against a person are concerned. It has resulted in the loss of life of an innocent person and whatever allowances are made by sensibly moderating general deterrence and specific deterrence and taking the prisoner's mental condition into account in considering the moral culpability, there nevertheless has to be a substantial period of imprisonment for this crime.

I do not quarrel with the proposition that there is no evidence suggesting any meaningful premeditation. The material seems to suggest that whatever happened happened that day and it was all part of the one transaction and the killing occurred by the repeated stabbing time and time again which cause the death of Ms Wust.

The ferocity of the attack tends to suggest that it wasn't premeditated and that as Dr Wood says in her assessment, it was an attack, a fatal attack done in anger. [Emphasis added]

5 In my opinion, the statements made by counsel for the Crown at the plea did not require the trial judge to proceed on the basis that the applicant's moral culpability was significantly reduced by his mental illness. I agree with Hollingworth AJA that the Crown submissions as to the relevance of Mr Davey's mental condition were ambiguous and that the judge could have received more assistance from defence counsel relating to the alleged link between the applicant's mental illness and his stabbing of the victim. His Honour did not deny the applicant procedural fairness by failing to indicate in advance that he was inclined to accept Dr Wood's evidence that the killing did not occur because the applicant was psychotic at the time of the killing.

6 His Honour accepted that the applicant had a psychiatric illness and that it was necessary to consider the implications of that illness. After referring to the three psychiatric reports prepared by Drs Sullivan, Wood and Senadipathy,[5] which were in evidence, and setting out substantial portions of Dr Wood's report in his reasons, the judge said the following:

I am prepared to accept that your long standing history of mental illness and substance abuse have in all probability impacted upon your emotional and psychological development to some extent and that this must result in some sensible moderation of your sentence by way of muting of it. Nevertheless I must ultimately sentence you not on the basis of the label of schizophrenia or simply by reference to your underlying condition, but in significant part by reference to your state of mind at the time of the offence.[6] I do not accept that the evidence justifies a material reduction in your sentence by reference to considerations of reduced moral culpability, or the inappropriateness of your case for general or specific deterrence. Insofar as moral culpability is concerned the evidence simply does not show that you were psychotic or otherwise materially affected by mental illness at the time of the killing. Insofar as general deterrence is concerned, domestic murders of the type carried out by you are a scourge upon our society. They pervert the fundamental fabric of personal relationships and family trust upon which society is founded. It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be the objects of love.[7]

7 The evidence before his Honour (and particularly the evidence of Dr Wood) left it open to the judge to find that the applicant was not psychotic at the time of the killing, and that he had stabbed his de facto partner in an outburst of rage. That finding justified his Honour's conclusion that the applicant's state of mind at the time of the killing did not justify a 'material reduction' in his sentence 'by reference to considerations of reduced moral culpability'. Contrary to the assertion in ground 1, his Honour also accepted that there must be 'some sensible moderation of [the applicant's sentence] by way of muting of it'.

8 The applicant also sought to rely on Dr Sullivan's report of 25 March 2010 to justify a reduction of Mr Davey's sentence. In R v Nguyen,[8] Redlich JA said that:

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[9]

9 Dr Sullivan had previously provided a report dated 2 May 2005 in which he addressed the issue of whether Mr Davey was unfit to plead. In that report, Dr Sullivan said Mr Davey 'expressed clear understanding of the legal process and ... at the time of my interview he was fit to be tried'. He also said that:

In addressing mental impairment, I have sought to piece together his mental state from contemporaneous descriptions. The descriptions of Mr Davey following the index offence are consistent with a psychotic illness. He is agitated, distracted and somewhat thought disordered. By the time he was assessed in the Custody Centre he had frank psychotic symptoms. There is the question of whether he was embellishing or faking symptoms, but given Mr Davey's longstanding illness, with symptoms persisting even when free of substance use, I believe that symptoms subsequent to the index offence indicate psychosis.

There is little indication of his mental state in the days preceding the index offence. There are no details of the index offence specifically suggestive of psychosis. It is thus difficult to determine whether he was psychotic at the time of the offence, or whether his psychosis arose as a consequence of the offence.

... if it is determined that Mr Davey was psychotic at the time of the index offence, it is my opinion that his illness would have so affected his judgment and grasp on reality, that his sense and composure would have been severely diminished.

I believe that the crux of this matter rests upon whether it is determined that Mr Davey was psychotic at the time of the offence or whether the psychosis arose consequently. I do not possess sufficient evidence to determine this, but note that his long standing psychotic illness renders it quite likely that he was indeed experiencing persecutory ideas and auditory hallucinations on an ongoing basis, and that on balance, in my opinion a mental impairment defence is indeed available to Mr Davey.

10 The Court permitted the applicant and the Crown to file additional psychiatric reports, addressing the contribution of the applicant's mental health (if any) to his commission of the offence, his current mental condition and whether it would make imprisonment more burdensome to him and his prognosis within the prison environment and in the outside community. These reports would have been relevant to Mr Davey's re-sentencing if error had been established. Alternatively they would have been admissible as new evidence if the requirements in R v Nguyen were satisfied. The contents of Dr Roberts' report are set out in the reasons of Hollingworth AJA.

11 In preparing his report of 25 March 2010, Dr Sullivan had access to previous psychiatric reports provided by Drs Wood, Senadipathy, Bell and Jager and Roberts. Based on those reports and on his own mental state examination of the applicant, Dr Sullivan said in his report that:

Mr Davey has an established diagnosis of paranoid schizophrenia. This diagnosis was considered to have a substantial association with persistent polysubstance abuse including cannabis and amphetamines. He has not engaged in substance use since his incarceration, according to the information available. His mental state remains somewhat difficult to access [sic]. He has reported occasional tactile hallucinations but there are no other positive symptoms (delusions or hallucinations) evident in recent months.

Mr Davey remains affected by significant negative symptoms. His speech is impoverished in content and lacks flow and spontaneity. His mood is blunted and he [is] unemotional. He forms limited rapport and is socially withdrawn and apathetic. His manner is awkward and minimising, and he remains quite impaired in insight into his mental illness.

Negative symptoms have been recurrently noted since the late 1990s. These constitute a marker of the severity of illness, along with psychosocial functioning. Negative symptoms are more subtle than positive symptoms and are easily overlooked or attributed to motivational or other issues.

In considering the contribution of his mental disorder to the offence, I note that although it could not be demonstrated that Mr Davey met the test for mental impairment, his mental disorder was established, chronic and severe. Any doubts that he had schizophrenia (rather than recurrent drug-induced psychosis and personality disorder) are dispelled by his progress in prison and the persistence of significant negative symptoms of schizophrenia. Such symptoms are generally not evident in drug-induced psychotic disorders.

At the time of the alleged offence, there was no evidence of overt causative contribution of positive symptoms such as delusions or hallucinations. However given the longitudinal course of his issues, I think it likely that deficits in judgement and impaired executive functioning related to chronic schizophrenia may have been associated with his limited ability to manage the demands of a relationship and to exercise appropriate behavioural self-control, and were thus likely associated with the offence. Also noted are the cryptic comments of Dr Senadipathy related to abnormal magnetic resonance imagining (MRI) scans scan [sic] findings, which are not otherwise adverted, but which may warrant followup. Schizophrenia is frequently associated with cognitive impairment which especially affects executive functioning.

I would not regard his imprisonment as more burdensome because of mental illness, and note that Mr Davey is coping adequately, engaged in employment and in a mainstream location.

...

Mr Davey does not have a significant of [sic] entrenched history of violent offending and has only a couple of other charges related to violence. He is not obviously prone to carrying weapons and has not been behaviourally disturbed in prison. His risk of further violent offending is low if the above conditions ... are maintained. The risk would increase if off medication, abusing substances or unsupported. In addition it appears that the demands of an intimate relationship would pose a significant stressor to Mr Davey. He might pose a risk to intimates or friends if his mental state was deteriorated but I would not regard him as posing any significant risk to the public at large.

12 The previous reports written by Dr Sullivan and others recognised Mr Davey's diagnosis of paranoid schizophrenia and that his condition was complicated by persistent polysubstance abuse.

13 It might be argued that Dr Sullivan's observation that doubts about whether Mr Davey was suffering from recurrent drug induced psychosis, rather than schizophrenia, had been resolved by 'the persistence of significant negative symptoms of schizophrenia', satisfied the test for admission of fresh evidence. Perhaps it might also be argued that Dr Sullivan's comment that it was

likely that deficits in judgement and impaired executive functioning related to chronic schizophrenia may have been associated with his limited ability to manage the demands of a relationship and to exercise appropriate behavioural self-control, and were thus likely associated with the offence

cast some doubt on his Honour's conclusion that the causal relationship between Mr Davey's mental condition and the murder did not justify a material reduction inhis sentence 'by reference to considerations of reduced moral culpability, or the inappropriateness of ... general or specific deterrence'.

14 There seems to me to be some doubt as to whether the clarification of the aetiology of Mr Davey's symptoms because of cessation of his drug use demonstrates 'the true significance of facts in existence at the time of the sentence and ... relates to events which have occurred since the sentence was imposed'. However, even if it were accepted that the test for admission of fresh evidence is satisfied, Dr Sullivan's opinion does not require the substitution of a different sentence to avoid a miscarriage of justice. Mr Davey's previous conviction for an offence involving serious violence, the terrible circumstances of the murder and the risks of re-offending identified in the reports of Dr Roberts and Dr Sullivan would justify the imposition of the same sentence as was imposed by his Honour.

15 For these reasons I would dismiss the application for leave to appeal.

16 The facts relating to the commission of this offence and the psychiatric reports which explore the applicant's history of his established diagnosis of paranoid schizophrenia are set out in the draft judgment of Hollingworth AJA which I have recently had the opportunity to read.

17 Both for reasons of procedural fairness and because of the fresh evidence adduced on the appeal, leave to appeal should be granted and the sentencing discretion re-opened. The fresh evidence established conclusively that at the time of the offence the applicant was suffering from the negative symptoms of his longstanding condition of schizophrenia so that his moral culpability for this offence was materially reduced.

18 The medical reports in existence at the time of the plea in mitigation had been prepared to address the question whether it could be established that the defence ofmental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 could be established. The sole question addressed in the medical reports was whether the applicant was suffering from positive symptoms of his condition at the time of the offence. Dr Wood was not satisfied that he was manifesting florid psychotic symptoms at the time of the offence. Dr Wood noted that the applicant's use of licit and illicit psychoactive substances on a regular basis for many years exacerbated his mental illness and complicated its treatment. She noted that his history was also one of marked impulsivity and poor judgment. While Dr Wood accepted that the applicant was exhibiting some psychotic symptoms when he was observed after the offence, he was not manifesting symptoms of a florid psychotic episode. Dr Sullivan in contrast concluded that his illness would have so affected his judgment and grasp on reality that his sense and composure would have been severely diminished so as to qualify as mental impairment according to the Act.

19 By his abandonment of any claim to mental impairment within the meaning of the Act, and his plea of guilty to murder, the applicant must be taken to have accepted that he was not floridly psychotic at the time of the offence. That said, Dr Sullivan and Dr Wood were both of the opinion that the applicant satisfied the criteria of having a mental illness at the time of the offence. The cases of Tsiaras[10] and Yaldiz,[11] and the decision of Verdins[12] which followed the handing down of this sentence, demonstrate that mental disorders which fall short of mental impairment and which contribute to the commission of the offence will warrant a reduction in moral culpability.

20 The applicant had stabbed the deceased some 40 times to the head and neck with the concentration of stab wounds being to the upper half of the front of the face and the right side of the face including some five stab wounds to the right eye. The applicant, covered in blood, hastily departed the scene leaving a young child, also covered in blood, in the vicinity of the deceased. The applicant hailed down a passing driver who noted that the applicant was behaving oddly and appeared to be talking to someone else. He said things such as 'I love everyone, I love God' and repeated the statement 'Amen' numerous times. Upon being dropped off at a friend's house he was observed to be 'spaced out' and 'scared' and when seen by his father some hours later was incoherent and still covered in blood which he had made no effort to remove. He was taken to the Frankston Hospital and when interviewed it was observed that the applicant appeared to be affected by mental illness. Within a short time thereafter he was diagnosed as psychotic. Such evidence together with the psychiatric evidence of his longstanding and chronic schizophrenia suggested that there was a causal connection between his mental illness and the offence, and explains why the plea proceeded as it did.

21 Both parties on the plea were represented by very experienced counsel. The applicant submitted that it could be inferred from the manner in which the plea was conducted that both counsel accepted that the applicant should be sentenced on the basis that the applicant's mental disorder contributed to the commission of the offence so as to reduce his moral culpability. The sentencing judge understood the plea to be put on that basis, as he observed during the applicant's submission that the disorder bore upon the applicant's moral culpability. Moral culpability could only be affected if the applicant's illness was causally connected to his offending conduct. Senior counsel for the Crown said in reply that in 'taking the prisoner's mental condition into account in considering [his] moral culpability, there nevertheless has to be a substantial period of imprisonment for this crime'. Implicit in that submission was counsel's acceptance that the applicant's mental disorder bore upon moral culpability. Before concluding the plea, his Honour reiterated his understanding that the 'psychiatric evidence coupled with the other matters relating to the accused man's capacity go to questions of moral culpability and I accept that may affect what is just punishment and what is appropriate in terms of specific deterrence and to some degree general deterrence'.

22 Quite apart from what can be drawn by way of concession from the senior prosecutor's submission, the Crown has a duty to assist in the sentencing task by ensuring there is an adequate presentation of the facts and by a fair testing of the defendant's case so far as it appears to require it.[13] The Crown is under a duty to assist the Court to sentence on the correct factual foundation and so avoid error. The performance of that duty also ensures that the defendant knows the nature and extent of the case being made against him and has a fair opportunity of meeting it. A failure by the Crown to discharge that duty will contribute to error affecting the sentence. It tends to deprive the defendant of a fair opportunity of meeting a case which might be raised against him.[14] As was suggested during oral argument from the Bar table, it can be safely assumed that senior counsel who appeared for the Crown, well understanding his obligations, raised no objection because the matter was not in issue. Counsel for the Crown, who did not appear at first instance, now contends that the prosecutor should not be taken to have accepted the applicant's submission. I regard that as a most unlikely explanation. It would mean that he failed to discharge his fundamental obligation of making clear to the sentencing judge and applicant's counsel that the Crown did not accept that the applicant's mental illness could reduce his moral culpability. Rigorous compliance with this prosecutorial obligation must be insisted upon if sentences which potentially imperil individual liberty are to be free from error.

23 For the purpose of the appeal, it is of no moment whether the position of the Crown was one of acceptance that the applicant's moral culpability was to be reduced, or is to be explained by a failure to raise any objection to that submission. In either event, the course that the Crown was bound to follow on appeal should have been clear. Leave should not have been opposed nor should there have been any opposition to the admission of the fresh evidence.

24 In his sentencing remarks, his Honour cited the cases of Tsiaras[15] and Yaldiz.[16] Tsiaras, the primary authority of guidance to his Honour at that time, identified five ways in which serious psychiatric illness was relevant to sentence:

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.[17]

25 At the commencement of paragraph [25] of the sentencing remarks, his Honour stated that the longstanding history of mental illness of the applicant required him to sensibly moderate the sentence. His Honour was there referring to how the applicant's condition in the second, third and fourth ways discussed in Tsiaras should bear upon sentence, notwithstanding that the mental illness played no role in the commission of the offence. His Honour stated that an assessment of the applicant's mental condition at the time of the killing was critical to an understanding of his moral culpability. Dealing with the applicant's 'state of mind at the time of the offence,' his Honour concluded that 'insofar as moral culpability is concerned, the evidence simply does not show that you were psychotic or otherwise materially affected by mental illness at the time of the killing'. The finding that there was no evidence of a causal connection between the applicant's mental illness and his offending conduct meant, as his Honour plainly recognised, that there could be no reduction at all of moral culpability. Hence his Honour 'muted' or 'sensibly moderated' the sentence in the other ways explained in Tsiaras.

26 The psychiatric reports considered by his Honour did not deal with the issue of how the applicant's mental illness contributed to the commission of the offence. They did not discuss the negative symptoms of his mental illness. Psychiatric evidence that specifically addressed those issues should have been provided to the sentencing judge but in the way the plea proceeded, counsel for the applicant was given no reason to think that it was necessary. I need not consider whether a consideration of the whole of the evidence amply supported the assumption upon which counsel proceeded on the plea. That is because the issues which arose on the appeal were about the adequacy of the sentencing process and not whether it was open to his Honour to reach the conclusion which he did concerning the evidence, or whether counsel were entitled to assume the nexus between the illness and the offence to be established.

27 The first question was whether the applicant should have been afforded an opportunity to address any paucity in the evidence, once his Honour concluded that it was deficient. No doubt influenced by the position adopted by the Crown, his Honour gave no indication during the plea that there was any risk of an adverse finding as to the mitigating circumstance relied upon by the applicant that he was materially affected by his mental illness at the time of the offence. Once the sentencing judge reached the opinion that the evidence as a whole could not support the assumption upon which the defence plea had rested, the applicant should have been given the opportunity to obtain and tender further psychiatric evidence.[18]

28 His Honour was required to advert to the possibility that he may make an adverse finding in relation to this fact as the risk of such a finding was neither apparent or inherent in the issues to be decided. Even if it were the case that there was no basis for the assumption made by counsel for both parties that there was a causal connection between the applicant's illness and his offending conduct, their uncontradicted submissions rested upon that assumption. The circumstances of the offence and the applicant's psychiatric history lent support to that hypothesis. The observations of the sentencing judge during the plea served only to re-enforce that assumption. Once his Honour found that the evidence did not permit such a conclusion, fairness dictated that the applicant be given an opportunity to address the question of the perceived deficiency in the evidence.[19] In denying the applicant that opportunity, he was denied procedural fairness.[20]

29 Procedural fairness must be upheld for its own sake as well as for its consequences. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome.[21] Once procedural unfairness is established, it is no part of this Court's function to consider the likelihood of his Honour making a different finding or imposing a different sentence if the applicant had been given a further opportunity to make submissions or call further evidence. Relief from procedural unfairness should only be refused where a court can say that had such an opportunity been afforded, it could not have yielded a different result.[22] Given the psychiatric evidence that could have been called, no attempt was made by the Crown to suggest that such additional evidence could have made no difference.[23]

30 Recognising the paucity of the psychiatric evidence tendered on the plea which bore upon whether there was a causal link between the applicant's mental disorder and the offence, the parties were given leave to file further psychiatric evidence. The substance of those psychiatric reports are set out in the reasons of Hollingworth AJA. However, in addition to the reports, Dr Sullivan was called before this Court to give detailed evidence concerning the applicant's mental disorder and the manner in which it related to his offending conduct. He is a well recognised expert in his field and he gave compelling evidence. Dr Sullivan testified that the applicant had an established diagnosis of paranoid schizophrenia dating back to at least 1990 including negative symptoms that were recurrently noted since the late 1990s. That diagnosis was also associated with persistent poly-substance abuse including cannabis and amphetamines. Dr Sullivan also stated that negative symptoms are more subtle than positive symptoms and may be easily overlooked or attributed to other issues. In substance he testified that the nature of the applicant's severe and chronic schizophrenia was such that at the time of the offence he would have been suffering at least from the negative symptoms of that condition. The existence of those negative symptoms meant that the applicant had limited capacity to manage the demands of the relationship and was unable to control his emotions. Dr Sullivan was satisfied that the applicant's mental disorder was causally associated with the offence so as to bear upon his culpability. Dr Sullivan was unable to say whether or not at the time of the offence the applicant was floridly psychotic although it was clear that he was in such a state within a short time after the offence. As a consequence of the applicant being in detention and under observation in the lengthy period since the offence was committed, Dr Sullivan testified that the applicant no longer suffered from any active symptoms of poly-substance abuse. The ongoing presence of negative symptoms, which he described as a significant disability, could thus be traced to his psychotic condition and other explanations for that deficit could now be excluded. Any doubts that the applicant was affected by the negative symptoms of his metal condition at the time of the offence rather than any recurrent drug-induced psychosis were dispelled by his progress in prison 'and the persistence of significant negative symptoms of schizophrenia which are generally not evident in drug-induced psychotic disorders'.

31 The Crown did not challenge any aspect of the opinion of Dr Sullivan but rather sought to demonstrate in cross-examination that it was not fresh evidence as there were psychiatric reports pertaining to the applicant which predated this offence and which established the existence of negative symptoms of his schizophrenic condition. That submission misconceives the nature of fresh evidence. It must be evidence which relates to events which have occurred since the sentence was imposed and which demonstrates the true significance of facts which were in existence at the time of the sentence.[24] The evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea.[25] Dr Sullivan's opinion, which as I have said was not disputed, threw significant new light on the pre-existing facts. As Neave JA was to observe during the oral hearing, this evidence further explained the nature of the applicant's schizophrenic illness as it existed at the time of the commission of the offence. It was plainly admissible as fresh evidence. That being so, it became unnecessary to determine whether the original sentence was vitiated by error or whether it was manifestly excessive. The question before the Court was whether on all of the material any different sentence should be substituted to avoid a miscarriage of justice.[26]

32 The course followed by the Crown on the appeal did not serve the interests of justice. The Crown's conduct on the plea was by itself, reason enough not to stand in the way of the sentencing discretion being re-opened. Procedural fairness required that the applicant be afforded the opportunity to adduce further evidence to establish that which the Crown appeared to accept and which had not been put in issue on the plea. When regard is had to the nature of the evidence that the applicant wished to adduce, the interests of justice demanded that the applicant be allowed to do so. The denial of procedural fairness called for the sentencing discretion to be re-exercised. So did the compelling fresh evidence. The question whether a different sentence should be imposed would arise only on a re-exercise of the sentencing discretion.

33 I would grant leave to appeal and would permit the applicant to rely upon the report of Dr Sullivan dated 25 March 2010 and his viva voce evidence given on 18 June 2010 on grounds of procedural fairness and because the evidence qualifies as fresh evidence. The sentencing discretion should be re-opened. As mine is a minority view, it only necessary that I state that I would have imposed a substantially lower non-parole period and a slightly reduced head sentence.

34 In February 2006, the applicant pleaded guilty to the 2004 murder of his partner, Athanasia Wust. In May 2006, the applicant was sentenced to a term of 18 years' imprisonment, with a non-parole period of 15 years.

35 The applicant suffers from a psychiatric illness, namely, chronic schizophrenia. The applicant alleges that the learned sentencing judge erred in the way in which he treated that psychiatric illness in his sentencing. The proposed grounds of appeal[27] are that the learned sentencing judge erred in holding that:

(1) the weight accorded to general deterrence should not be moderated by reason of the applicant's psychiatric illness;

(2) the applicant's moral culpability was not reduced because of his psychiatric illness; and

(3) the burden of service of a term of imprisonment was not increased for the applicant by reason of his psychiatric illness.

36 The initial notice of application for leave to appeal against sentence[28] also alleged that the sentence was manifestly excessive, and that the learned sentencing judge failed to give due weight to the applicant's guilty plea; however, those two grounds were not pursued before us.

37 The applicant now seeks an extension of time and leave to appeal against his sentence.

38 An application for leave to appeal against sentence should have been filed within 14 days of 3 May 2006, the date of sentencing. It was not filed until 8 February 2007, some nine months after sentencing.

39 There is no dispute that, within fourteen days of being sentenced, the applicant had personally written to the Court of Appeal, saying that he wanted to appeal against his sentence. He apparently did so without having received legal advice as to the appropriate procedure. A Court officer subsequently wrote to the applicant, informing him that his letter was not sufficient notice of appeal, and he needed to complete and lodge the correct form. Unfortunately, it seems that the applicant, who was then in custody, did not receive the letter from the Court, and assumed that his letter was sufficient to start the appeal process.

40 On 30 January 2007, the applicant telephoned Victoria Legal Aid ('VLA'), who had acted for him below, and asked what was happening with his appeal. Enquiries were then made by VLA, which revealed the matters set out in the previous paragraph.

41 An application for an extension of time within which to file the application for leave to appeal was filed shortly thereafter, on 8 February 2007. On 14 April 2008, the Acting Registrar refused the applicant's application for an extension of time. On 29 April 2008, the applicant filed a notice of election to have his extension application determined by the Court.[29]

42 Given the period of delay, the explanation for the failure to comply with the statutory requirements, the fact that the Crown does not oppose the application for an extension, and the fact that the application for leave to appeal is arguable, I would grant the extension of time.

43 At the time of the murder, the victim was in a domestic relationship with the applicant and they had a son, Alexander, aged 17 months. The couple were also living with the victim's son, Ben, who was aged 6, from a previous relationship.

44 The couple met in late 2001 as patients at Frankston Psychiatric Hospital. After the victim's discharge from hospital, her relationship with her husband deteriorated and she formed a relationship with the applicant. This caused tensions within her family and, at the time of her death, her contact with them was limited to telephone conversations.

45 The judge described the discovery of the victim's body and the cause of her death as follows:

On the afternoon of Monday 12 July 2004 Athanasia collected her son Ben from primary school and returned home. At about 6.45 pm Ben sought help in the Rye shopping centre and as a result police attended the family home at about 7.20 pm. On arrival police found Athanasia's body on the loungeroom floor. She had suffered multiple stab wounds and lay in a welter of blood. The handle and blade of a broken knife were found nearby. Alexander was found unhurt but covered in blood in the kitchen.

An autopsy subsequently showed that Athanasia had suffered some 40 stab wounds to the head and neck, concentrated primarily upon the area of the eyes and face. There were also some nine defence type wounds including full thickness stab wounds through the right hand. Athanasia died from the loss of blood caused by the wounds. The wounds were inflicted by you in what must have been a sustained frenzied and relentlessly savage attack. Further, they were inflicted when both boys were present in the house.[30]

46 After committing the murder, the applicant fled the scene. The next day, he attended at the psychiatric ward at Frankston Hospital, informing staff that the had 'stabbed [his] girlfriend in the eye five times, the bitch'. The judge characterised some of the responses the applicant gave during his police interview as being confused, but found that, ultimately, the applicant accepted responsibility for the stabbing. Some of his answers were said to indicate that there was a level of conflict within the relationship. These were his statements that:

(c) When he used the knife 'it just didn't feel like myself';

(d) He did not want to change despite everyone's (including the victim's) desire for him to change; and

(e) He felt angry that the victim 'always didn't let [him] do what [he] wanted to do'.[31]

47 The existence of a history of discord was also said by the judge to be supported by medical records, in particular, a note dated 22 April 2004 in the following terms:

Athanasia appearing quite angry reporting Owen had gone to Social Security in an attempt to gain control over their finances and had incorrectly informed Social Security that Athanasia was in hospital and that he was looking after the children ... also (complaining of) Owen owing her money [sic].

48 His Honour accepted that there was no evidence that the applicant's actions were premeditated. His Honour also held that the evidence as a whole supported the probability that the applicant's actions were sparked by something said by the victim which caused him to erupt in a fury of anger.[32]

49 The applicant was 30 at the date of offending and 32 at the date of sentence. He admitted 48 prior convictions arising from 12 court appearances. The majority of the convictions were for drug and dishonesty offences, although he had been previously convicted on counts of causing injury recklessly and unlawful assault.

50 He left school in year 10 and then worked in a variety of unskilled occupations. He had been on a disability support pension for most of his adult life.

51 At the age of 13, he commenced substance abuse and subsequently resorted to abusing cannabis, amphetamines and benzodiazepines, as well as alcohol. In 1993, aged 19, he was first admitted to a psychiatric facility and diagnosed as suffering from amphetamine-induced psychosis and an anti-social personality disorder. He was later admitted a number of times with diagnoses of drug-induced psychosis and schizophrenia with paranoid features and associated outbursts of violence.

52 In addition to the child he fathered with the victim, he also had a 10 year old child from a previous relationship, who lived with his former partner.

The evidence and findings below as to psychiatric condition

53 His Honour had before him the following three psychiatric reports: Dr Danny Sullivan, dated 2 May 2005; Dr Debra Wood, dated 5 August 2005; and Dr Don Senadipathy, dated 3 March 2006. Drs Sullivan and Wood were both psychiatrists at the Victorian Institute of Forensic Mental Health, Dr Senadipathy was a psychiatrist working at Port Phillip Prison, where the applicant was being held.

54 The Sullivan and Wood reports had been prepared for the purpose of assessing the applicant's fitness to plead and the possible availability of a defence of mental impairment.

55 On 13 February 2006, Dr Sullivan also gave brief oral evidence confirming the applicant's fitness to plead on that date. There being no suggestion of unfitness to plead, the learned judge adjourned the matter for about one month, to enable a further psychiatric report to be obtained. The plea was heard on 10 March 2006, Dr Senadipathy's report having been prepared the previous week for sentencing purposes.

56 The Sullivan report was 6 ¼ pages long and had been prepared at the request of the defence. Dr Sullivan had conducted two interviews with the applicant in May 2005, and had considered various reports, including the applicant's entire psychiatric records from the Peninsula Area Mental Health Service.

57 Dr Sullivan set out in some detail the applicant's personal and psychiatric history, and discussed the evidence as to the offence and the applicant's subsequent conduct.

58 Dr Sullivan diagnosed the applicant as having 'a psychotic illness which is most likely paranoid schizophrenia,' with symptoms including delusions, hallucinations and changes in his emotions including periods of depressive symptoms and thought disorder. He also diagnosed the applicant as having polysubstance abuse, which was relevant because of its contribution to his mental illness and superadded difficulties in engaging him in treatment.

59 In relation to the possible defence of mental impairment, Dr Sullivan expressed the following opinion:

In addressing mental impairment, I have sought to piece together his mental state from contemporaneous descriptions. The descriptions of Mr Davey following the index offence are consistent with a psychotic illness. He is agitated, distracted and somewhat thought disordered. By the time he was assessed in the Custody Centre he had frank psychotic symptoms. There is the question of whether he was embellishing or faking symptoms, but given Mr Davey's longstanding illness, with symptoms persisting even when free of substance abuse, I believe the symptoms subsequent to the index offence indicate psychosis.

There is little indication of his mental state in the days preceding the index offence. There are no details of the index offence specifically suggestive of psychosis. It is thus difficult to determine whether he was psychotic at the time of the offence, or whether his psychosis arose as a consequence of the offence.

Having regard to the criteria in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I believe that the nature and severity of Mr Davey's psychotic illness would be sufficient to qualify as a 'mental impairment' according to the act. It is clear that Mr Davey appreciated right and wrong subsequently, by his statements at interview. However, if it is determined that Mr Davey was psychotic at the time of the index offence, it is my opinion that his illness would have so affected his judgment and grasp on reality, that his sense and composure would have been severely diminished.

I believe that the crux of the matter rests upon whether it is determined that Mr Davey was psychotic at the time of the offence or whether the psychosis arose consequently. I do not possess sufficient evidence to determine this, but note that his longstanding psychotic illness renders it quite likely that he was indeed experiencing persecutory ideas and auditory hallucinations on an ongoing basis, and that, on balance, in my opinion a mental impairment defence is indeed available to Mr Davey. [emphasis added)]

60 The Senadipathy report was also prepared at the request of the defence, specifically for sentencing purposes. It was the shortest report, being some 2½ pages long. It was, therefore, considerably less detailed than the other psychiatric reports.

61 Dr Senadipathy addressed the applicant's condition and treatment during the time he had spent in the St Paul's psychosocial rehabilitation unit at the Port Phillip Prison, being most of the period from October 2004 until the date of the report, namely March 2006.

62 He noted that the applicant had 'a chronic history of mental illness, substance abuse and behavioural disturbance'. He was also 'known to have an unpredictable explosive temper outbursts resulting in violence and previous incarcerations and CBO'. He said the most probable diagnosis was schizophrenia with the possibility of an organic brain disorder co-existing.

63 Dr Senadipathy described the various anti-psychotic medications which had been tried in custody, to most of which the applicant responded poorly.

64 The report concluded that long term management would depend on sentencing. If the applicant was sentenced to imprisonment, he would be at the St Paul's rehabilitation unit until he was well stabilized and suited for mainstream management.

65 Unlike the Sullivan and Wood reports, the Senadipathy report did not address at all the question of the applicant's mental state at or around the time of the offence.

66 The Wood report was prepared at the request of the Crown, and ran for just over 15 pages. It was based on three interviews with the applicant, as well as various psychiatric reports and records. Dr Wood detailed the history of the applicant's mental illness, before stating the following:

In relation to the defence of mental impairment, it is my opinion that Mr Davey certainly satisfies the required criterion of having a mental illness. Whether or not he meets the section 20 CMIA criteria for mental impairment is much less clear, and in my opinion is, on the balance of probabilities, not met for the following reasons:

1. Although there is evidence that Mr Davey was probably suffering some psychotic symptoms after the offence, such as:
   1. In the statement of REINEKER, Mr Davey was noted to be saying 'I love everyone, I love God' and 'Amen' (brief, p71);
   2. In the statement of Martin DAVEY, Mr Davey was described as being 'incoherent, but ... hinting at what had happened' (brief, p 173);
   3. Dr Doug Bell's record of interview at the MAP on 16 July 2004, and notes that Mr Davey referred to himself as the 'The Holy Grail', because he 'was born on Christmas day'. Mr Davey also said 'they are coming after me' because he is The Holy Grail - referring to co-prisoners and described auditory hallucinations swearing at him and making derogatory comments;
   4. His report of voices saying, 'Owen, come on', to Dr Viswanathan on 22 July 2004; and
   5. His statements to Dr Reid (psychiatry registrar) on 12 August 2004 about needing to 'care' for others and his report that others were looking at him 'strangely;' and his odd touching of the television screen prior to the interview;
2. These phenomena are scarce given the overall volume of material, and suggest that although Mr Davey may well have been experiencing some psychotic symptoms after his offence, he was not manifesting symptoms of a florid psychotic episode such as he has previously exhibited when severely unwell (such as in 2001);

1. In my opinion, the bulk of the evidence attesting to Mr Davey's mental state after the offence is more suggestive of him being shocked and scared, including:
   1. Witness REINEKER's statement that Mr Davey appeared to look 'sick' and agitated (brief, p 71);
   2. Witness SCOTT's description of Mr Davey's behaviour, and his reassurances that he was 'OK';
   3. Witness TEMBEY's statement that Mr Davey 'was breathing funny like he was having an anxiety attack' (brief, p 169);
   4. Witness Martin DAVEY's description of Mr Davey being in a 'state', 'incoherent but hinting about what had happened', and 'yelling out that if he goes to hospital then he will go to gaol' (brief, p 173);
   5. Witness COCHRANE's statement that Mr Davey looked upset when he attended the hospital, that he said 'I need help, I need help', and that he appeared agitated (brief, p 66);
   6. Mr Davey's comments of 'Scary. Scary' (Q21, brief p 87); 'I'm scared' (Q32, brief p 88); 'I'm going to jail now ...' (Q55, brief p 90);

This would be consistent with his statements to Ms Muriel Cummins whilst on the AAU, and indeed his presentation throughout this incarceration and during our three interviews for this report.

1. There is evidence from Witnesses REINEKER, COCHRANE and the transcript of the police interview that Mr Davey was angry, at times clearly at the deceased, immediately after the offence:
   1. After Mr Davey entered Witness REINEKER's car, he said 'Drive' in a 'demanding' manner; subsequently, Mr Davey said 'Where are you going and don't lie?' in an 'aggressive tone'; he was subsequently described as 'pushy' and 'demanding', then 'yelling' at REINEKER (brief, pp 69-72);
   2. Owen said; 'I've done bad. I stabbed my girlfriend in the eye five times, the bitch.' When he said 'the bitch' he seemed to have anger in his voice' (COCHRANE, brief p 66);
   3. In the police interview, Mr Davey stated, 'I hurt the person that I love ... But she just - I don't know, she kept on fuckin' shittin' me, mate ... About stuff, saying these things that I never do this - you know' and that this made him feel like 'a fuckin' idiot' (Q 95-99, brief p 94); later he said that 'Everyone want - wants to make me, like, just change into something that I don't want to change into, you know', and that the deceased was doing this 'all the time' (Q 116-117, brief p 96); he said, 'She always didn't let me do what I wanted to do, you know . . It made me angry' (Q 130-131, brief p 97).

In my opinion, the evidence that at the time of the offence Mr Davey was suffering a degree of mental impairment such that he was unable to reason with a moderate degree of sense and composure that the conduct was wrong is weak. It seems much more likely, on the available evidence, that he and the deceased had an argument along the lines of their previous domestic conflicts, and that Mr Davey stabbed her in anger. I have not encountered any evidence that suggests that he harboured psychotic beliefs about her; his comment during the police interview that people were trying to kill him - 'Spiderman' (Q 153-155, brief p 99) - lacks authenticity, and in any case does not suggest that Mr Davey's concerns, if any, rested on the deceased.

67 Defence counsel briefly referred the court to the existence of the three psychiatric reports and submitted that Dr Wood had said the applicant could not run a mental impairment defence, whereas Dr Sullivan had said he could. However, defence counsel also noted that the applicant had taken the decision to abandon that defence and plead guilty.

68 After discussing some of the evidence about the applicant's behaviour after the stabbing, the applicant's counsel said:

Your Honour should accept that this is not a premeditated attack. It is something that is spontaneous, clearly done in a frenzy and something that has arisen whatever it may be that has caused my client to perform this terrible act.

We have seen that there, on any analysis, had been some discussion between the two parties that caused my client to lose control and to go into the frenzy which caused the death of Ms Wust.

69 After referring to the undisputed diagnoses of paranoid schizophrenia, defence counsel then referred to Dr Wood's conclusion that the incident occurred out of the applicant's response to an argument with the victim.

it's my submission that my client because of the assessments of the three psychiatrists and their reports before you qualifies as a prisoner who is suffering from a serious psychiatric illness and as such under the cases of

[Tsiaras[33] and Yaldiz[34]], that general deterrence in considering a person such as my client still operates, but your Honour has to in the phrase 'sensibl[y] moderate' that issue of sentencing that you have to consider.

71 The judge then interposed that it bore on moral culpability as well, to which defence counsel agreed, before submitting that it also bore on specific deterrence and how the applicant would spend his time in custody.

72 Defence counsel acknowledged that the judge was faced with a very difficult sentencing decision:

in that clearly it's a shocking crime for which there is no excuse. And indeed is really only understandable in the context of a consideration of my client's psychiatric history. In any other respect if that wasn't present it would be clearly very difficult to understand why it would've occurred and why he had reacted in such a manner.

73 As far as general principles were concerned, the prosecutor accepted that cases such as Tsiaras required that general deterrence had to be sensibly moderated or muted. But he also said that 'whatever allowances are made by sensibly moderating general deterrence and specific deterrence and taking the prisoner's mental condition into account in considering the moral culpability, there nevertheless has to be a substantial period of imprisonment for his crime'.

74 As far as what caused the applicant to attack the victim, the prosecutor accepted that there was no evidence of premeditation, but characterised it on several occasions as a sustained attack in great anger, relying in particular on Dr Wood's assessment to that effect. At no stage did the learned prosecutor state that he accepted that there was any link between the mental illness and the offending behaviour.

75 In the course of the plea, his Honour said that 'psychiatric evidence coupled with the other matters relating to the accused man's capacity [do] go to questions of moral culpability, and I accept that may effect what is just punishment and what is appropriate in terms of specific deterrence, and to some extent general deterrence ...'

76 The learned sentencing judge expressly recognised that the 'core of the plea' was that the court must give weight to the applicant's history of mental instability and the ongoing consequences of his psychiatric condition.[35] His Honour noted that defence counsel had submitted that the diagnosis of mental illness should be regarded as diminishing the applicant's moral culpability, and as bearing on general and specific deterrence. He also noted the submission that the likely conditions of custody should be taken into account.

I accept that it is clear that you do suffer from schizophrenia and during the 10 years up until the murder you had suffered ongoing and recurrent psychiatric problems. But the consequences of those problems in the present context require careful consideration.

Three psychiatric reports have been tendered to me. In so far as your mental condition at the time of the killing is concerned the relevant considerations are most fully addressed in the report of Dr Debra Wood. Because an assessment of your mental condition at the time of the killing might be regarded as critical to an understanding of your moral culpability I propose to repeat her opinion in some detail. On the whole of the evidence before me I accept this opinion as accurate.

[over 4 pages of text from Dr Wood's report were then reproduced, including the portion reproduced earlier in these reasons]

Your plea acknowledges the fact that you are unable to establish on the balance of probabilities that you were suffering from mental impairment at the time of the killing such as to provide a defence to the offence charged.

Further, the analysis of Dr Wood convincingly demonstrates that the evidence strongly favours the view that you were not psychotic at the time of the killing (this being the crucial question as Dr Sullivan expressly states and Dr Wood's report implicitly acknowledges).

I am prepared to accept that your long standing history of mental illness and substance abuse have in all probability impacted upon your emotional and psychological development to some extent and that this must result in some sensible moderation of your sentence by way of muting it. Nevertheless I must ultimately sentence you not on the basis of the label of schizophrenia or simply by reference to your underlying condition, but in significant part by reference to your state of mind at the time of the offence. I do not accept that the evidence justifies a material reduction in your sentence by reference to considerations of reduced moral culpability, or the inappropriateness of your case for general or specific deterrence. In so far as moral culpability is concerned the evidence simply does not show that you were psychotic or otherwise materially affected by mental illness at the time of the killing. Insofar as general deterrence is concerned, domestic murders of the type carried out by you are a scourge upon our society. They pervert the fundamental fabric of personal relationships and family trust upon which society is founded. It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be the objects of love.[36]

78 The learned sentencing judge's comments in relation to the impact of custody will be considered in the discussion of ground 3.

79 Ground 1 complains that the learned sentencing judge erred in holding that the weight accorded to general deterrence should not be moderated by reason of the applicant's psychiatric illness.

80 Ground 2 complains that the learned sentencing judge erred in holding that the applicant's moral culpability was not reduced because of his psychiatric illness.

81 Both grounds are premised on a misreading of what his Honour actually said. He did not say that the weight accorded to general deterrence should not be moderated, or that the applicant's moral culpability was not reduced. On the contrary, his Honour expressly acknowledged that there should be 'some sensible moderation of [the] sentence by way of muting it'.[37] But, when regard was had to the evidence as to the applicant's state of mind at the time of the offence, his Honour did not accept that it justified a 'material reduction' in the sentence by reference to considerations of reduced moral culpability, or the inappropriateness of the case for general or specific deterrence.

82 Read in the context of his Honour's reasons, it is clear that the word 'material' was intended to be used in a qualitative sense, to be equated with influential or determinative of the outcome. Given the evidence before him, it was certainly open to his Honour to make such a qualitative assessment and, indeed, to arrive at the sentence which he did. The applicant faces the heavy burden of establishing that no reasonable judge, properly directed on the facts, could have reached those conclusions.

83 Notwithstanding the rather narrow way in which grounds 1 and 2 were framed, counsel for the applicant also sought to argue more generally that, based on the evidence and the way the matter was argued below, less weight should have been accorded to general deterrence and the applicant should have been seen as less morally culpable.

84 Before us, counsel for the applicant conceded that it was open to the judge to find that the applicant was not psychotic at the time of the murder, but submitted that it was not open to the judge 'to find that the applicant was unaffected by his psychiatric illness'. Once again, that submission does not accurately reflect his Honour's reasons. His Honour did not find that the applicant was completely unaffected by his psychiatric illness, he found that the evidence simply did not show 'that the applicant was psychotic or otherwise materially affected by mental illness at the time of the killing'.[38]

85 The applicant's counsel had argued below that the nature of the murder itself was really only understandable as a result of mental illness, a submission which was repeated before us. But none of the psychiatric reports supported such a sweeping assertion. Dr Wood's opinion was that the most likely cause of the conduct was that the applicant and the victim 'had an argument along the lines of their previous domestic conflicts, and [the applicant] stabbed her in anger'. Even Dr Sullivan, whose report was the most favourable to the applicant, said that 'There are no details of the index offence specifically suggestive of psychosis'. That is to say, even Dr Sullivan did not suggest that the nature of the murder itself could only be explained because of the schizophrenia.

86 Counsel for the applicant submitted that the Crown had 'effectively conceded', and the judge had apparently accepted, at the plea that 'the applicant was affected by mental illness at the relevant time', and that the entire plea had proceeded on the assumption that there was a real connection between the applicant's psychiatric illness and the murder. Counsel for the Crown disagreed with those contentions as to how the matter had proceeded below. Whatever may actually have been in the minds of counsel and the learned sentencing judge, we are left to determine the matter by reference to the transcript and the reasons for sentencing. As I read the transcript and the reasons, I do not perceive that either the prosecutor or his Honour were proceeding on that basis, even if defence counsel was.

87 As discussed earlier, both the Crown and the judge acknowledged during the course of the plea that the applicant undoubtedly had a mental illness, schizophrenia, such that the principles set out in cases such as Tsiaras and Yaldiz were engaged. But that was only the starting point of the enquiry. It was still appropriate for the sentencing judge to have regard to the role, if any, which that mental condition played in the offending behaviour. And the prosecutor repeatedly argued that it was anger that caused the applicant to stab the victim.

88 The applicant's counsel suggested to us that at the plea it had been argued that the applicant was more likely to become irrationally angry and less able to control himself, because of his paranoid schizophrenia; that is to say, that there was a direct link between his anger and his mental illness. But the transcript references provided to us do not appear to support the suggestion that the matter was argued that way below.

89 Unfortunately, it seems that counsel and the learned sentencing judge may not have been proceeding on the same assumptions.

90 As the party seeking to rely on mental illness as a mitigating circumstance, defence counsel should have provided considerably more assistance to the sentencing judge than he did. Mindful of the fact that the Wood and Sullivan reports had been prepared only for the purpose of a possible mental impairment defence, on 13 February 2006 his Honour had specifically adjourned the plea to enable further reports to be prepared for sentencing purposes. In response, the defence produced nothing more than the brief Senadipathy report, which did not address the relationship between the mental illness and the offending. In oral submissions, defence counsel was brief in his references to the content of the three psychiatric reports; somewhat curiously, the one to which he made most reference, and with apparent approval, was that of Dr Wood. Little was said by defence counsel to establish any link, on the evidence, between the applicant's schizophrenia and the offending.

91 Given the limited way in which experienced defence counsel had argued the matter, I am not surprised by the prosecutor's brief response, or by the sentencing judge's treatment of the matter.

92 I accept that procedural fairness must be upheld for its own sake as well as for its consequences. But I am not persuaded that his Honour denied the applicant procedural fairness, by proceeding in the manner in which he did.

93 I suspect that the way in which the matter proceeded may be referable in part to the fact that the plea was heard before the Court of Appeal's decision in R v Verdins.[39] Although in Verdins, the Court of Appeal said that it was merely restating, albeit in a somewhat revised form, the guiding principles laid down in Tsiaras,[40] the Verdins decision has undoubtedly had the effect of focussing the minds of counsel

and trial judges regarding the need to fully explore all aspects of the offender's mental state, including the extent to which it played any role in the offending.

94 For these reasons, I would dismiss grounds 1 and 2.

95 The final ground asserts that the learned sentencing judge erred in holding that the burden of service of a term of imprisonment was not increased for the applicant by reason of his psychiatric illness.

96 The relevant principles in this area are not in dispute. At the time of sentencing, the most recent authoritative decision on point was the Court of Appeal decision in R v Van Boxtel.[41] Callaway JA, with whom Ormiston and Charles JJA agreed, noted that it was a mitigating circumstance if a sentence of imprisonment would (because of the offender's physical or psychiatric illness or disability) be 'significantly more burdensome' for the offender than for a person in normal health.[42] But, as the Court of Appeal also noted, 'the weight to be given to such mitigating factors is another matter altogether. In some cases, they are of great consequence; in other cases, they make no difference when all the relevant circumstances are taken into account'.[43]

97 In the joint judgment in Verdins,[44] the Court of Appeal said that 'the existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health'.[45] The Court of Appeal also commented, by way of example, that 'self-evidently, a person suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health'.[46] But there is nothing in the joint judgment to suggest that all mental conditions must be presumed to have that effect.

98 Each case must be considered on the particular evidence and arguments before the sentencing judge. In this case, the only way in which the issue had been raised at the plea hearing by the applicant's counsel was as follows:

It also goes to the issue of how my client will spend his time in custody, and as you can see from the report of Dr Senadipathy he will begin where he is at the moment in St Paul's Rehabilitation Unit which is in effect the psychiatric unit at Port Phillip until an assessment is made that he's stabilised and suitable for mainstream management, and there are no time frames but in my submission it's an additional burden of his imprisonment that he will be in that particular unit and clearly be under the care of medical practitioners for some time whilst he's there.[47]

99 That is to say, the applicant's counsel did not argue that imprisonment would be more burdensome for the applicant than for a person in normal health. Rather, the argument was that being in the prison psychiatric unit would be more burdensome on the applicant than being in the mainstream prison.

100 His Honour considered and rejected that submission, in the following manner:

I do not, however, accept that the circumstances in which you will be held will mean that you will suffer in custody unduly as a result of your mental condition. To the contrary, Dr Senadipathy's report demonstrates that you are being well cared for and professionally treated.[48]

101 That is a factual finding which was certainly open to his Honour to make on the evidence before him. Given the very limited way in which the 'burdensome' issue was raised, it is not surprising that his Honour dealt with it in such a limited manner. As this Court has observed on several occasions, 'where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied upon by counsel'.[49]

102 For these reasons, I would also reject ground 3.

103 Given the way in which the matter proceeded below, including the apparent misunderstandings between counsel and the learned sentencing judge, and the importance of the issue to the applicant's sentence, this Court decided to permit the parties to each file a further expert report directed to the following matters:

(a) the contribution of the applicant's mental condition (if any) to his commission of the offence;

(b) the applicant's current mental condition and whether it will make imprisonment more burdensome to him; and

(c) the applicant's prognosis:

(1) within the prison environment; and

(2) in the outside community, as to the risk of further manifestation of his psychosis, its likely severity, the danger he poses to the public and his risk of re-offending.

104 The Court reserved the question of whether or not it would allow any such material to be received either as fresh evidence,[50] or on a re-sentencing (if error was established), until it had seen the reports and received further submissions.

105 The report filed by the Crown was dated 18 January 2010 and prepared by Dr Kate Roberts, a consultant psychiatrist working for the Victorian Institute of Forensic Mental Heath at Melbourne Assessment Prison. Based on, among other documents, the three psychological reports tendered at the plea and her consultation with the applicant on 2 December 2009, Dr Roberts expressed the following opinions:

I was unable to acquire any additional evidence to suggest that Mr Davey was convincingly psychotic at the time of the offence. It does however seem that there is clear evidence that he became psychotic following being incarcerated and several symptoms indicative of this are noted in the reports within the brief of evidence.

Mr Davey's mental state appeared stable. Despite only being able to access limited detail from Mr Davey himself, his recent psychiatric review suggested at least that there was no indication of acute mental illness. I therefore believe his schizophrenia is essentially in remission. I believe this is attributable to his compliance with medication, despite only partial insight as well as abstinence from poly substances. I do not therefore have overt concerns about the burden of incarceration.

With regard to his prognosis I would be fairly guarded. Mr Davey has a reasonable chance of remaining well in custody as he can more easily avoid any destabilising factors such as drugs and alcohol and is more likely to remain compliant with psychotropic medication.

His insight is poor and he will require assertive psychiatric follow up should he be give a non-custodial disposition. This is largely in the context of his desire to cease medication and likely return to substances. Should he become non-compliant with medication and return to substance use, his risk of relapse and risk of violence are increased. It is difficult to predict the severity of relapse or the level of danger he may pose with certainty, however.

Mr Davey should be managed on a Community Treatment Order when he is released from custody in order to mitigate the risk of relapse.

106 Dr Sullivan provided a further report, dated 25 March 2010, which was filed on behalf of the applicant. He also gave oral evidence before us, by way of elaboration of his further report. The further report was based on a number of other reports as well as a further consultation with the applicant on 15 January 2010. Dr Sullivan expressed the following opinions in his further report:

Since his incarceration Mr Davey has been more settled and has engaged in employment. He has been considered sufficiently stable to be transferred to a dispersal prison with lower levels of specialist mental health input.

Mr Davey has an established diagnosis of paranoid schizophrenia. This diagnosis was considered to have a substantial association with persistent polysubstance abuse including cannabis and amphetamines. He has not engaged in substance use since his incarceration, according to the information available. His mental state remains somewhat difficult to access [sic]. He has reported occasional tactile hallucinations but there are no other positive symptoms (delusions or hallucinations) evident in recent months.

Mr Davey remains affected by significant negative symptoms. His speech is impoverished in content and lacks flow and spontaneity. His mood is blunted and he [is] unemotional. He forms limited rapport and is socially withdrawn and apathetic. His manner is awkward and minimising, and he remains quite impaired in insight into his mental illness.

Negative symptoms have been recurrently noted since the late 1990s. These constitute a marker of the severity of illness, along with psychosocial functioning. Negative symptoms are more subtle than positive symptoms and are easily overlooked or attributed to motivational or other issues.

In considering the contribution of his mental disorder to the offence, I note that although it could not be demonstrated that Mr Davey met the test for mental impairment, his mental disorder was established, chronic and severe. Any doubts that he had schizophrenia (rather than recurrent drug-induced psychosis and personality disorder) are dispelled by his progress in prison and the persistence of significant negative symptoms of schizophrenia. Such symptoms are generally not evident in drug-induced psychotic disorders.

At the time of the alleged offence, there was no evidence of overt causative contribution of positive symptoms such as delusions or hallucinations. However given the longitudinal course of his issues, I think it likely that deficits in judgement and impaired executive functioning related to chronic schizophrenia may have been associated with his limited ability to manage the demands of a relationship and to exercise appropriate behavioural self- control, and were thus likely associated with the offence. Also noted are the cryptic comments of Dr Senadipathy related to abnormal magnetic resonance imaging (MRI) scans scan [sic] findings, which are not otherwise adverted, but which may warrant follow-up. Schizophrenia is frequently associated with cognitive impairment which especially affects executive functioning.

I would not regard his imprisonment as more burdensome because of mental illness, and note that Mr Davey is coping adequately, engaged in employment and in a mainstream location.

The ongoing presence of negative symptoms however constitutes a significant disability and renders his prognosis bleaker. Mr Davey is managing adequately in a sheltered environment and while on high doses of medication, above the recommended maximum. Despite this he is noted to have 'residual symptoms'. He has persistently requested reduction in medication dosages and appears insightless as to his previous positive symptoms or the benefits of medication.

Thus while his prognosis within the prison system is one of containment, compliance with medication and reduced exposure to substance use, he would face extra difficulties in the community and would be at increased risk of relapse.

I would recommend that upon Mr Davey's return to the community he be maintained in staffed and supported accommodation, linked indefinitely to local mental health services, abstinent from all substance use (with monitoring), and mandated to comply with antipsychotic medication. His previous level of psychosocial disability and past history of psychiatric service usage suggests that he would otherwise be prone to psychotic relapse.

Mr Davey does not have a significant of [sic] entrenched history of violent offending and has only a couple of other charges related to violence. He is not obviously prone to carrying weapons and has not been behaviourally disturbed in prison. His risk of further violent offending is low if the above conditions ... are maintained. The risk would increase if off medication, abusing substances or unsupported. In addition it appears that the demands of an intimate relationship would pose a significant stressor to Mr Davey. He might pose a risk to intimates or friends if his mental state was deteriorated but I would not regard him as posing any significant risk to the public at large.

107 The defence could have adduced the further Sullivan report when the judge specifically granted an adjournment to enable the defence to produce whatever further reports it wanted to; no satisfactory explanation has been given for not obtaining such a report prior to sentencing. As a matter of principle, it is highly undesirable to encourage parties to do anything other than to obtain comprehensive psychiatric reports at the time of the plea.

108 Even if this Court was persuaded that any of the grounds of appeal had been made out, and regard was had to the further psychiatric evidence, I would not impose a different sentence on the applicant by way of re-sentence. The nature and gravity of the offence, the applicant's previous history of violence, and the risks of re-offending, would have led me to impose the same sentence.

109 It follows that the application for leave to appeal against sentence should be dismissed.

[1] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 ('Tsiaras').

[2] R v Yaldiz [1998] 2 VR 376.

[3] Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[4] [2000] VSCA 59; (2000) 112 A Crim R 307.

[5] R v Davey [2006] VSC 173 ('Reasons'), [19].

[6] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400_; R v Yaldiz_ [1998] 2 VR 376, 383.

[8] [2006] VSCA 184.

[10] [1996] VicRp 26; [1996] 1 VR 398.

[11] [1998] 2 VR 376.

[12] [2007] VSCA 102; (2007) 16 VR 269.

[13] R v Tait (1979) 46 FLR 386, 389 (Brennan, Deane and Gallop JJ); DPP v Waack [2001] VSCA 108; (2001) 3 VR 194, 200 (Phillips JA).

[14] DPP v Waack [2001] VSCA 108; (2001) 3 VR 194, 200 (Phillips JA).

[15] [1996] VicRp 26; [1996] 1 VR 398.

[16] [1998] 2 VR 376.

[17] [1996] VicRp 26; [1996] 1 VR 398, 400 (Charles, Callaway JJA and Vincent AJA) (emphasis added).

[18] The same reasoning applies if, as Hollingworth AJA suggests, his Honour made a qualitative assessment and gave it little weight.

[19] See for example R v Humphries [2010] VSCA 161, [10]; R v Fisher [2009] VSCA 100; (2009) 22 VR 343.

[20] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 509.

[22] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; R v Healey [2008] VSCA 132, [42].

[23] See the discussion of Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 and Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514-521.

[24] R v Nguyen [2006] VSCA 184, [36]; R v Eliasen (1991) 53 A Crim R 391, 394; R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 101; R v McLachlan [2004] VSCA 87; (2004) 8 VR 403, [10].

[25] R v Nguyen [2006] VSCA 184, [36]; Knights v The Queen (1993) 70 A Crim R 105, 109-110; R v Ahmed [2005] VSCA 279, [11].

[26] R v Nguyen [2006] VSCA 184, [36] (v) and (vi).

[29] Under r 2.08(2) of the Supreme Court (Criminal Procedure) Rules 1998.

[30] [2006] VSC 173 ('Reasons'), [6], [7].

[33] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 ('Tsiaras').

[34] R v Yaldiz [1998] 2 VR 376 ('Yaldiz').

[39] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[40] [1996] VicRp 26; [1996] 1 VR 398, [2].

[41] [2005] VSCA 175; (2005) 11 VR 258.

[44] [2007] VSCA 102; (2007) 16 VR 269.

[49] R v Zander [2009] VSCA 10, [36] (Nettle JA); quoted with approval in R v White [2009] VSCA 177, [16] (Lasry AJA, with whom Buchanan and Dodds-Streeton JJA agreed).

[50] In accordance with the principles summarised by Redlich JA in R v Nguyen [2006] VSCA 184, [36].