Ground 4: Her Honour erred in making findings on the respondent's future dangerousness.
154As the well-known passage from Veen (No. 2) set out above demonstrates, subject to the principle of proportionality, that an offender's mental illness may make him a danger to society when he is at large is a factor tending towards a longer custodial sentence. As the Justices in the majority pointed out, to the extent to which mental illness may provide more than one guidepost to the appropriate sentence in a given case, the guideposts often point in different directions. And as Gleeson CJ pointed out in R. v. Engert (1995) 84 A Crim R 67 at 68 ... a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
155At 68 his Honour continued:
... [No] automatic consequences follow from the presence or absence of particular factual circumstances.
And at 71 his Honour re-emphasised the point in this way:
... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public.
156In R. v. Windle [2012] NSWCCA 222 Basten JA closely analysed the judgments in Veen (No. 2) in the context of the need to give effect to the appropriate protection of society as a factor in sentencing at [43] - [50] and at [47]. One must accept, as I think his Honour points out, that except in a case like Veen (No. 2) where an indeterminate, life sentence was appropriate, this factor can be problematic in practice given that the principle of proportionality will operate as a brake on the ability of the court to protect the public absolutely from the dangerously mentally ill. But it is well to bear in mind that for so long as the dangerously mentally ill offender is incarcerated the community is protected from him. And this is a legitimate purpose of sentencing: s.3A(c) Sentencing Act. At [57] his Honour said:
The offender will have to be released sooner or later. The appropriate mechanism for protecting society cannot be found in the criminal law; the need for protection arises from mental illness and it is through mental health legislation that such protection as may be available must be sought.
His Honour made these observations in the context of his factual determination. But in principle, as the unanimous court said in Muldrock at 141 [61]:
The notion that a sentence might be reduced to take into account the existence of a regime outside the criminal law providing for the detention of sex offenders may be thought to have little to commend it as a matter of principle.
In the same passage, their Honours went on to say:
A court may not refrain from imposing a sentence that, within the limits of proportionality, serves to protect the community in a case that calls for it because at some future time the offender may be made the subject of an order under the Sex Offenders Act.
In my judgment this statement applies by parity of reasoning to mental health legislation.
157Accordingly, in the present case, the real question for the learned sentencing judge was whether this was a case which called for a sentence that served to protect the community, and this, intrinsically, was a question of fact.
158In considering the applicant's future dangerousness, the sentencing judge fully considered the psychiatric evidence before her.
159At ROS 19, her Honour quoted the following opinion of Dr Westmore, dated 12 October 2010:
Mr Devaney appears to fall into the small group of mentally ill people who represent an increased risk of dangerousness when compared to the general population of mentally ill people and the general community at large.
This subgroup is usually comprised of younger males who suffer paranoid illness who have in the past demonstrated aggressive behaviour. They are at their greatest risk when acutely ill suffering auditory perceptual disturbances and paranoid thoughts. For his long-term safety and for the safety of others, it would be prudent for this man to be managed as a forensic patient in a longer term (sic).
If on his release he is not supported sufficiently by psychiatric services, his risks to himself in terms of his potential behaviour to others will be significant.
160Her Honour went on at ROS 21 to quote the following opinion from the report of Dr Allnut dated 11th March 2011 (part of Exhibit 3)
...[w]hen he is unwell his risk is increased... However, even taking into account the moderating effects of age, remission of his psychotic symptoms due to treatment, his risk is higher than the average population. The risk depends on whether he remains adherent to his psychiatric treatment and on follow up in the community... It is promising that he is taking his medication while in prison, but this remains untested in the community.
This opinion was obviously influential in the observations her Honour made at ROS 11 as follows:
His history of prior personal violence offending is a feature of aggravation and will be taken into account in assessing future danger to the community. The context in which it will be taken into account will be as a predictor of future conduct and the effectiveness of supervised orders in the past. It will not be used to punish the offender again for offences committed in the past. The record, however, highlights what appears to be a character trait of aggression, intimidation and resort to weapons [ROS 11].
161Dr. Wilcox also referred to this topic in her oral evidence. At 16T.15 - 35 she gave the following evidence:
Q. So providing he continues with his medication and doesn't engage in drug abuse he should be symptom free is that correct?
A. Look you can never sort of say he will always be symptom free, but so long as he is maintained on his medication and the medication is, he hasn't had enough other stressors, because stressors can, even on medication people can become unwell, so not only does he need to be on medication, he needs to be reviewed and monitored and he needs to abstain from all illicit substances.
Q. And once, and if we assume that these symptoms are in control by him doing those things, is it your opinion that his risk of committing similar offences in respect to similar psychotic symptoms is low?
A. Yes I would hope that he won't become psychotic again, you know, because he has an illness which fortunately does respond to medication you know, we have lots of patients who don't respond as well as he does and he does respond well which is a good prognostic sign, you know his medication works for him, it does keep his symptoms at bay so long as he takes the medication ... the symptoms you know will be much less likely to occur.
Then at 30.4 - 31.30T, the following evidence appears:
Q. ... would you agree, doctor, that even on medication this prisoner's risk of dangerousness to the community including Ms. Graham has to be greater than average or the base line?
A. Well... there is a past history of aggression towards to Ms. Graham. In the past the factors that contributed was his substance use, his problems with anger related to his substance abuse and probably towards the end of their relationship he may have even been starting to become unwell. But I think that the risk is reduced with medication and as I said I would believe that he is a different person now, he's an older more mature person and hopefully he has acquired some awareness of the folly of his prior actions.
...
Her Honour:
Q. I am not sure that you have addressed the question though Doctor.
A. Okay, just remind me what was the question?
Q. The question was, do you agree his potential danger is higher than the base?
A. I would agree that ---
Q. You've addressed a whole lot of issues but is it or isn't it?
A. You would have to say it is higher than the base, yes.
Cuneen
Q. Yes, because he's got this interest in guns?
A. Yes.
Q. He's prone to be psychotic when he's on drugs?
A. Yes.
Q. He's got a bad record for violence?
A. Yes.
Q. In fact, he shot someone?
A. Yes, there are all these risk factors, but as I said before a lot of those risk factors have been decreased and can be managed so we accept that he has got a lot of risk factors but we also accept that we can manage a vast majority of those risk factors, yes.
162A further factor which concerned her Honour (ROS 22) was that Mr. Devaney was at one stage, whilst in prison, able to convince authorities to reduce and ultimately stop his medication. This finding was amply justified by the oral evidence given by Dr. Wilcox. At the conclusion of cross-examination by counsel, her Honour asked some questions in clarification of this issue (31.45 - 32.45T).
Q. The last time he was put in the prison population, I understand your evidence being that he complained to doctors about a lot of the side effects of the medication and was successful in convincing them that his medication could be reduced and then ceased?
A. That's correct.
Q. Doesn't that present a risk problem?
A. He is on a different medication now.
...
Q. Right, but when he was on the Risperidone was that managing his paranoia?
A. It was managing his paranoia but it was causing him to feel sedated and tired.
Q. So why wouldn't the doctors simply on his complaint reduce the medication and not perhaps alter the medication or put him back in hospital and stabilised him on a different medication? (sic)
A. I wonder that too.
...
Q. How long did it take him to convince doctors that the Risperidone should be reduced to nil?
A. I think it was over a number of months, yes, it was over a number of months, yes... I think they just phased it out and then no one followed up what was happening --
Q. No one followed it up?
A. Yes, no one followed it up.
Q. Even in a prison population if he's on an injectable medication it was possible for him just not to turn up?
A. It was, yes.
163As her Honour observed at ROS 23 -24 Exhibit 4, records of the Department of Corrective Services indicated relevant breaches of discipline even when Mr Devaney was said to be compliant with his medication. In November 2009, he was reported and punished for intimidation and in May 2010 for participating in, and inciting, a riot. This was relevant evidence. Her Honour was entitled to take it into account in deciding the question of his future dangerousness, if any.
164Her Honour directed herself by reference to R v Harrison (1997) 93 A Crim R 314, in which Hunt CJ at CL, Newman and Ireland JJ emphasised at page 319 that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown. That passage was applied In R v Robinson [2002] NSWCCA 359, with Giles JA, Dunford and James JJ adding at [49] that the likelihood must be a real likelihood, but certainty of re-offending can never be found. In my view, this was the correct approach.
165Her Honour carefully reviewed the evidence, and relevant considerations, before concluding at ROS 25:
For these reasons I assess his risk of re-offending and his risk to the community as being high. While he is in a secure setting well managed by medication and not challenged he is at his best. If the risk factors referred to by the psychiatrists who have assessed him come to fruition then his risk of future danger to the community is high.
In my judgment, this finding was well open to her Honour on the evidence to which I have referred and for the reasons that she expressed. The question to be decided by the learned sentencing judge involved the complex interplay of a number of competing considerations. That others may have assessed them differently is not to the point.
166The applicant submitted that her Honour's findings with respect to future dangerousness were based upon findings of fact not open to her on the evidence. The applicant put his submission in the following terms:
First, it was not open for her Honour to find at [52] that the decision by medical practitioners to reduce his medication was made for anything other than for good clinical reason (the first finding). Secondly, it was not open to her Honour to find at [52] that the decision to 'release [the applicant] into the general prison population' in November 2008 was made as a result of manipulation by the applicant because he knew that the supervision of his medication would be less strict (the second finding). Thirdly, it was not open for her Honour to find [at 50, 53] that there was no evidence at the time of sentence that the applicant accepted the need to be medicated for the foreseeable future (the third finding). Fourthly, it was not open for her Honour to find [at 53] that at the time of sentence, he did not accept his medical condition (the fourth finding). Fifthly, it was not open for her Honour to find that even when he was medicated appropriately his behaviour was not calm and compliant (the fifth finding).
For the reasons I have expressed, I reject this submission. I might add that the verbal formulation adopted - that it was not open for her Honour to make certain findings - to some extent misconceives the nature of the task facing an applicant on a sentence appeal. Moreover, although the question of whether there was a real likelihood of a risk of re-offending was a matter upon which the Crown bore the onus, it was not necessary for the Crown to prove every relevant primary fact to the criminal standard. But importantly, it was for Mr. Devaney to prove on the balance of probabilities that his former dangerousness had been ameliorated by successful treatment. There was evidence to that effect, which her Honour did weigh and assess with the competing evidence in the process of arriving at her conclusion - a conclusion which in my judgment was well open to her.
167In my judgment, the Crown correctly submitted that these findings of primary fact may only be interfered with if it is demonstrated that there is no evidence to support a particular finding on which the Crown bore the onus, or the evidence is all one way, or the judge has misdirected him or herself: R v O'Donoghue (1968) 34 A Crim R 397 per Hunt J (as his Honour then was); R v Warfield (1994) 34 NSWLR 200 at 209. Mr. Devaney has failed in this endeavour.
168The Crown submitted that the onus of establishing future dangerousness as a mitigating factor rested with the applicant on the balance of probabilities (The Queen v Olbrich (1999) 199 CLR 270) and that in the absence of direct evidence from the applicant the issue with respect to this ground is the weight to be afforded to the evidence presented. I reject this part of the Crown submission. Certainly, as I have already observed, Mr. Devaney bore the onus of establishing facts arising out of his mental illness which were favourable to him to the extent to which they were tendered to ameliorate the severity of the sentence that might otherwise be called for. But in my view, her Honour correctly found at ROS 16 that the facts that increase the assessment of level of danger [to the community] are to be proven to the criminal standard and by the prosecution.