Devaney v R

Background 103Her Honour summarised the primary facts relating to the commission of the offences in the following way (ROS p2-6): The facts are not complicated but the circumstances of the offences commence four years prior to the offences actually occurring. A statement of agreed facts was tendered. In summary they disclose that the accused and Ms Graham were involved in a domestic relationship between mid 2001 and August 2004. They lived together for some of that time but were physically separated by August 2004. In November 2003 an apprehended violence order was granted to protect the victim Ms. Graham from the accused. That order expired in February 2005 but the accused breached it during the course of its currency. Both the AVO and the breach of the AVO involved the offender sending harassing and threatening text messages to her often in the context of his drug use but did not involve actual physical violence against her. They caused her concern for her safety. Approximately four years passed without Ms. Graham having received any harassing or threatening communication from the offender. On 25 July 2007 the offender called and asked her to meet him for coffee. She replied "I can't do that, please don't call me anymore, I've actually moved on and I'm engaged. Please take care, best wishes", before terminating the call. On 26 October 2007 the offender was charged with an unrelated assault and stalk intimidate. He was released on bail. On 19 April 2008 he was charged in relation to the common assault of a different acquaintance. On 5 May 2008 the offender was convicted of both the charges in his absence, s.25(2) warrants were issued for his arrest. On 8 May 2008 the events, the subject of these charges, occurred. In November 2006 Ms Graham began working at the Star City Casino gym on Level 5 as a fitness instructor. On 8 May 2008 after returning from holiday she had began her shift at 1 pm and was scheduled to conduct a yoga class at 1:30 pm. The offender was observed on the steps of the Star City Casino at 12:47 pm. He remained in the toilets until 1.41 pm before he requested a swipe card at reception. Some time before 2 pm the offender approached a taxi driver waiting at the Star City Casino rank and handed the driver a $20 note saying "I'm going upstairs for something then I'll come back down". The driver thought the offender seemed normal not nervous or in a rush and speaking normally. The offender re-entered the casino and travelled to the gym on Level 5. Ms. Graham began her class at approximately 1:40pm. After the class began she saw the offender approaching walking straight towards her. She was immediately scared and expected trouble so she asked the sole participant in the class, Ms Sari Busan to leave. As Ms Graham looked toward the offender who was now approximately two or three metres away, she saw him move his right hand from behind his back holding a large grey gun. He came closer held the gun out and pointed it at the middle of her body. Ms. Busan heard the offender say something like "just leave us here" to her. Ms. Busan moved away. Ms. Graham was shocked and scared, she turned to run, although the offender was blocking any escape path. She then felt shock to her body and heard the sound of a gunshot. A bullet entered her body just below the right rib cage and exited just below the left rib cage. The offender then fired a second shot that missed her and travelled through a large glass window into the gymnasium area. The offender turned towards the victim, then pointed the gun down towards the victim's hips and fired a third shot. The bullet from that shot entered her left lower abdomen and exited near the right hip. The three shots were approximately one second apart. The scene within the gym became chaotic with staff running everywhere. The offender presenting as confident and not afraid placed the pistol into his backpack and walked to the far exit door. Also in the gym at the time was Samir Bahan who ran and hid behind some equipment and then watched the offender walk with the gun in his hand and backpack on at a fast pace towards the entrance and he exited. A staff member of the gym, John Barker, administered first aid to the victim and he was joined by a Renee Jones. The victim told Barker and Jones that the male who shot her was the offender, her ex-boyfriend. The offender came through the door into the lounge area of the Chairman's Lounge on Level 4, asked for directions to the elevators and sprinted off in that direction. Security staff located an image of the offender in a lift. Numerous copies were made and distributed to police and security. The offender was seen by Jessica Moss at a business located on the corner of Pyrmont Bridge Road and Pyrmont Street. He ran around the corner to the entrance of that business and rang the intercom, then grabbed the door handle and began shaking it forcefully in an apparent attempt to gain entry. When sirens were heard the offender looked over his shoulder and seemed to become agitated. He de-camped and dropped his dark jacket and pressed himself into the corner of the alcove in an apparent attempt to hide. The offender held his backpack in front of him and ran across the road towards Harris Street where he entered the car park area of a building. Police wearing bullet proof vests established traffic control points at the corner of Pyrmont and Union Streets and surrounds. They conducted a search. Inside a stairwell on the ground floor they located a toilet area where they found a dark coloured backpack in a shower cubicle, the contents of that backpack included a box containing 75 rounds CCI brand .22 calibre ammunition, a black woollen balaclava, a box containing 33 rounds of PMC .45 calibre ammunition, a black wig with Ascot sales tag attached, two bottles of adhesive gum and solvent and two Star City swipe cards. Constable Coffey observed the offender walking down Pyrmont Street towards Pyrmont Bridge Road. The offender was now wearing a fake moustache and beard, was perspiring heavily and appeared to be attempting to avoid police. Constable Coffey asked the offender what his name was and the offender replied "Todd". Constable Coffey immediately apprehended him. A number of other police began to assist, Constable Coffey advised the offender that he was under arrest for the shooting and told him to drop the bag however the offender held it until police removed it from him. Constable Coffey began to place handcuffs on the offender and said, "Where's the gun". The offender said "pocket, front pocket". Another officer removed the back semi automatic Beretta .22 calibre pistol from his pocket. Constable Coffey then again informed the offender that he was under arrest and cautioned him, when asked whether he understood the offender replied "yeah" and nodded. Senior constable Rose checked the pistol and noted that the magazine was loaded although no round was chambered. He searched the bag, inside was a silver and black Phoenix Arms .22 calibre pistol with a loaded magazine and grey silencer attached. He also located a black Norinco .44 calibre pistol with a loaded magazine and another magazine. Also located was a full faced novelty mask with a receipt from Presto Magic Studios dated 26 February 2008. A silver coloured knife was located on the body of the offender. In checking the crime scene and ballistics the following was observed: Inside the gym Star City Casino three .45 calibre colt pistol cartridges casings were located, a glass panel window of the gym was fractured by a bullet hole approximately ninety one centimetres up from the ground. On 18 July 2008 a number of exhibits were examined and they included the .45 calibre automatic self loading pistol with its serial number obliterated, that the firearm was in working order and is a prohibited pistol. Secondly a .22 long rifle calibre Phoenix armed self loading pistol with its serial number obliterated, Senior Constable Shay concluded that the firearm was in working order, can be fitted with a silencer and is a pistol. And thirdly a .22 calibre long rifle calibre Pietro Beretta self loading pistol serial number M21058. The firearm was in working order and is a prohibited pistol. A series of cartridges were examined and found to be suited for use in the firearms examined, testing revealed that the .45 automatic colt pistol calibre rounds had been discharged from that firearm. 104The applicant was convicted of unrelated assault and stalking offences on 5th May 2008, but absconded before sentence, and a warrant had been issued for his arrest. He told Dr. Bruce Westmore, a forensic psychiatrist qualified to give evidence on his behalf for the purpose of the proceedings in the Local Court (Exhibit "C" - Report 6 February 2009), that after his conviction on these offences he refused to return to Court to be sentenced. 105Dr. Rosalie Wilcox, his treating psychiatrist, who gave evidence in report form and orally, recorded that during the court lunch break on 5th May 2008 the prosecutor, in response to Mr. Devaney's inquiry, had told Mr. Devaney that he would be asking the Court to impose a full-time custodial sentence because Mr. Devaney had a "stalk and intimidate" on his prior record. That matter, as her Honour pointed out, related to the victim, Ms. Graham. (Exhibit "A" report 15th June 2010). 106I interpolate, one would think a prior conviction in 1995 for a series of offences relating to armed robbery with a firearm may have been more pertinent. 107Apparently, however, the prosecutor's comment led Mr. Devaney to blame the victim of the shooting for his then predicament. He told Dr. Westmore I thought all the police harassment started with her and her family. In any event, his account to both psychiatrists was to the effect that he returned to his parents' home and got all my guns. He told Dr. Westmore I knew I was going to do something bad but I didn't know what yet. Dr. Wilcox received this version (Exhibit A, pp3-4): He did not want anything illegal found on his father's property and for this reason he took all his pistols from his safe. He knew that he had snapped and was going to do something stupid or bad, although at that stage he was not sure what he was going to do and recalled feeling confused and distressed. Dr. Stephen H. Allnutt, who reported on behalf of the prosecution (5th October 2010, Exhibit 3), was given a slightly different version, but to the same effect. Mr. Devaney told him that he blamed Ms. Graham for his predicament. He confirmed (at p 5): He went home and collected his guns; having left court prematurely he was aware that he was now probably a man with a warrant out for his arrest; he collected his guns because he knew that the Police were going to his home and probably his house and that his guns were illegal. 108As the President has said, all of the psychiatrists agreed that at the time of the occurrence of the offences, Mr. Devaney was suffering the active symptoms of paranoid schizophrenia, previously undiagnosed and, accordingly, untreated. Dr. Wilcox and Dr. Westmore were of the view that had Ms. Graham died, Mr. Devaney's condition was such that he would have had available to him the partial defence of substantial impairment (Dr. Wilcox Exhibit "A" 15th June 2010; Dr. Westmore Exhibit "B" 18th January 2011). That matter is, of course, hypothetical, fortunately, but it is apt to point out that the question of whether Mr. Devaney's impairment was so substantial so as to warrant liability for murder being reduced to manslaughter would not have been a matter for expert opinion: s.23A(2) Crimes Act 1900 (NSW) ("Crimes Act").

General Propositions 109Before dealing specifically with the grounds of appeal, I think it appropriate to acknowledge that the principles governing the exercise by an intermediate appellate court of its powers in sentencing appeals. They are clearly settled and require no elucidation by me. Notwithstanding this I remind myself that the identification of appellable error in this context depends upon the engagement of the well known principles enunciated in House v. The King (1936) 55 CLR 499 at 505: If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 110In Wong v. The Queen (2001) 207 CLR 584 at 605 [58] Gaudron, Gummow and Hayne JJ said: Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. 111Moreover, the statement of the unanimous Court in Lowndes v. The Queen (1999) 195 CLR 665 at 671 - 2 [15] must always be brought to mind: The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established... Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. 112Her Honour, as she was required by law to do, passed sentence on Mr. Devaney for the Part 4 Division 1A offences in conformity with the decision of this Court in R. v. Way (2004) 60 NSWLR 168. 113In written submissions, copies of which were provided to us at the hearing, each party directed her Honour's attention to the need to apply Way's case. 114At ROS 7, her Honour showed that she accepted these submissions in the following way: In assessing the objective seriousness of the offences the court has regard to the facts [and] matters which relate directly to and may explain why the offences were committed, the circumstances of aggravation and of mitigation which are present or which apply to the particular offender as listed in s.21A of the Crimes (Sentencing Procedure) Act. These are matters which the court must take into account as referred to in the case of R. v. Way... Following that statement of approach, her Honour, as the President has observed, embarked upon a careful, detailed, and comprehensive consideration of all the relevant factors which, in her Honour's judgment, bore upon her decision in the particular circumstances of the case before concluding, after a reference to s.3A of the Sentencing Act (ROS 30), as follows: I assess the shooting with intent to murder offence as an offence of slightly above mid range seriousness. 115In Muldrock v. The Queen (2011) 244 CLR 120, a unanimous High Court disapproved of the approach that had been taken to sentencing in standard non-parole period matters in Way in two respects which may be important for the present case. First, (at 132 [27]): The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. Secondly, the Part 4 Division 1A amendments neither require or permit the adoption of a two stage approach to the sentencing of offenders ... commencing with the consideration of whether an offence is within the middle range of objective seriousness by comparison with an hypothesised offence answering that description, and in the event that it does, by inquiring if there are matters justifying a longer or shorter period. Rather, what is required is for the judge: ...to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. (Muldrock, 132 [29]). 116By reference to these considerations, it can be seen that her Honour, by faithfully applying Way, possibly may be said to have, without any "fault" on her part, or the part of the parties, adopted an approach which, strictly, offends the first principle referred to in the immediately preceding paragraph, and which accordingly constitutes an error of principle. 117However, the cases in this Court which have considered claims of "Muldrock error" clearly establish that adherence to the authority of Way does not necessarily bespeak error: e.g. Butler v. R [2012] NSWCCA 23 at 26 per Davies J; Williams v. R. [2012] NSWCCA 172 at [40] - [43] per Price J. (I do not purport to be exhaustive. For a full review of the relevant decisions by R.A. Hulme J writing extra-judicially see (2012) 24 JOB 81). 118It must be said that despite the detailed and careful written and oral argument advanced on behalf of Mr. Devaney, error of principle of this nature is not contended for, except indirectly in relation to ground six. Moreover, to my mind, the full identification by the learned sentencing judge of the facts, matters and circumstances which her Honour concluded bear upon the judgment that she reached about the appropriate sentence demonstrate substantial compliance with the requirements of Muldrock (at 132 [29]). In Wong at 611 [75] Gaudron, Gummow and Hayne JJ described the task of the sentencer in these terms: ... to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. (Footnotes omitted); (See also Markarian v. The Queen (2005) 228 CLR 357 at 378 [51]). 119In my judgment, it follows that to demonstrate appellable error, Mr. Devaney needs to make good, otherwise than by reference to "Muldrock error", one or more of his enumerated grounds of appeal, and even then only if he has demonstrated error in the House v. R sense.

Grounds of appeal Grounds 1, 2, and 3 120The applicant and crown addressed the first three grounds together. These grounds concern how the trial judge dealt with the issue of the applicant's undoubted mental illness. 121It is submitted that it was incorrect for the learned sentencer to state that there was no evidence of the applicant's mental illness at the time of his contact with his victim in 2007, and that this constituted error. 122The applicant submitted that the judge erred in her consideration of the evidence relating to the applicant's mental illness, in particular the questions of when it commenced, and its causal relationship to the offences. It was submitted that these errors resulted in the erroneous conclusion that the objective seriousness of count 1 was slightly above the mid range of seriousness. It was said that this finding was not open to the sentencing judge because of the applicant's mental illness at the time of the offence. 123The applicant further submitted that her Honour's findings with respect to the commencement of the applicant's mental illness are inconsistent with the evidence contained in the psychiatrist's reports, causing an error which clouded the judge's entire opinion of the significance of the applicant's mental illness. 124The Crown submitted that there was no "Muldrock error". The Crown further submitted that although decided in accordance with Way, her Honour's approach was entirely consistent with the instinctive synthesis approach whereby the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and makes a value to judgment as to what is an appropriate sentence given all the factors in the case: Crown submissions page 11 [35]. It was argued that her Honour was fully cognisant of the centrality of the question of Mr. Devaney's mental illness. It was put: It cannot be said that her Honour was not entirely cognisant of the fact that she was involved in the sentencing exercise involving an offender who was acutely psychiatrically ill at the time he committed the offences (18.15T).

Her Honour's findings about the applicant's mental illness 125At ROS 16, her Honour said the following: Mental health issues are dealt with by reports from three psychiatrists, the issues of the offender's mental health are relevant, both to an assessment of moral culpability and to future dangerousness. There is consensus that when the offence was committed, the offender was in a state of psychosis. The cause of that psychosis has now been diagnosed as Paranoid Schizophrenia. This fact reduces the moral culpability of the offender for the offence and can effect the importance of general deterrence as a sentencing consideration [emphasis added]. 126The relevant psychiatric evidence consisted of seven reports; two from Dr Allnut, two from Dr Wilcox and three from Dr Westmore. The trial judge considered these reports and, at ROS 18, said the following: Dr Wilcox and Dr Allnut are both of the opinion that the offender's mental illness resulted in a thought content with paranoid themes directly incorporating [the complainant]. Dr Wilcox is of the view that as a result of his mental illness his capacity to control himself was severely impaired. This is an opinion she confirmed in her oral evidence in court. She is of the view that his then undiagnosed mental illness was a major contributor to the offence. Dr Westmore has observed that notwithstanding his view that the offender was suffering from a substantial impairment his actions after the shooting in attempting to avoid detection are evidence of his awareness of the nature of the actions and an awareness that his actions were wrong. 127At ROS 24-25, the trial judge made the following remarks: The offending behaviour must however be seen in the context of [the appellants] recently diagnosed mental illness, paranoid schizophrenia. An observation of the COPS entries in mid 2007 and the reports from each of the psychiatrists confirm that he was becoming ill for around about six months before the offence was committed and possibly longer. 128Her Honour made several remarks about the commencement of the applicant's mental illness. For example, at ROS 8 her Honour said the following: His [the appellant's] contact [in 2007], when there is no evidence he was suffering from his now diagnosed [mental] illness, is a worrying feature of this case [emphasis added]. 129The following further remarks are relevant to this question: The offender's prior criminal record contains entries for two armed robbery offences in 1995, together with offences relating to possession of firearms, discharge of firearms, and then disguised with intent. It is of concern that, notwithstanding there is no suggestion he was suffering from a mental illness when those offences were committed, he was committing crimes of violence with a firearm. [ROS p10]. In March 2003, he was convicted of two counts of assault occasioning actual bodily harm, and one of carrying a knife. It is observed that these offences were committed before any suggestion of a psychosis or mental illness being relevant to offending. [ROS p11]. 130It is clear to me that the learned sentencing judge appreciated that the salient questions concerning Mr. Devaney's mental illness were complex. She fully appreciated, and I think took the view, that Mr. Devaney's mental illness provided only a partial explanation for his offending on the 8th of May 2008. Other relevant matters, including his antecedent criminal history, were relevant to show: His current offending is far from an aberration, it is simply a more serious form of violent or intimidating behaviour as he has exhibited in the past [ROS p39] But her Honour went on to say: The offending behaviour must however be seen in the context of his recently diagnosed mental illness, paranoid schizophrenia. 131Her Honour pointed out that on her view of the evidence before her, the degree of pre-meditation and planning of the offence was not a manifestation of the underlying disease. At ROS 24 her Honour said: Dr. Wilcox explained that even though the offender was suffering from a psychosis at the time, planning is not thereby excluded. 132I understand this to be a finding that her Honour considered that the degree of careful planning involved in this particular offence was not part and parcel of Mr. Devaney's illness. As her Honour pointed out, Dr. Wilcox expressed the following view in her report of 4th September 2010 (page 2): I note that an individual may suffer from a mental illness and still be able to devise and carry out plans in a relatively organised manner. However when the individual is suffering from prominent delusions (false beliefs) their judgment is impaired and the basis for the planning is irrational and distorted. I have seen individuals who are extremely paranoid yet appear totally calm. 133The following evidence appears at 21.20 - 30T in the proceedings on sentence: Q. So you say that he found out this information about the place where Ms. Graham worked and the times that she worked there before he was at the height of his paranoid schizophrenia? A. No, I think... he was unwell for quite some time but he was - you can still plan things and do things while you're paranoid and suspicious, the two things aren't exclusive with each other. Q. Yes, but finding out when she was going to be there, it has no purpose unless he planned to go there and confront her for some reason does it? A. No, that's right, yes so he was part of - he was planning to do it and he got the information but then he could have got the information and not done anything with the information. [Emphasis added]. Dr. Wilcox made it clear that, in her opinion, Mr. Devaney acted on his plan because of his illness. 134But on the basis of this material, in my judgment, the learned sentencing judge was entitled to find that the mental illness was not the sole cause of Mr. Devaney's offending on this occasion, whether or not others might have taken a different view of the same evidence. 135The learned sentencing judge found that the condition of paranoid schizophrenia manifested itself in or about mid-2007 (ROS 24 - 25; ROS 28). Complaint is made of these findings and in particular the finding at ROS 8 dealing with Mr. Devaney's attempt to contact Ms. Graham on 25th July 2007: His contact, when there is no evidence that he was suffering from his now diagnosed mental illness, is a worrying feature of this case. 136As Allsop P notes in his reasons, and as is discussed below, the mental illness of the offender may present a paradox in sentencing proceedings. One aspect of mental illness may tend towards a longer custodial sentence, another towards a shorter: Veen v. The Queen (No. 2) (1988) 164 CLR 465 at 466-7. To the extent to which a particular aspect of mental illness may favour the offender on a sentencing procedure, he or she carries the onus of proof to the civil standard: R. v. Storey [1998] 1 VR 359 at 369, approved by R. v. Olbrich (1999) 199 CLR 270 at 281 [24] - [27]. In the present case, if it could be shown that Mr. Devaney's disease commenced at an early point in time, that fact would be favourable to him because it would explain certain events such as his contact with Ms. Graham in 2007, more favourably than otherwise. In my judgment, he carried the relevant onus of proof. 137Accordingly, it was not open to Mr. Devaney to raise a "no evidence" point of law concerning that finding: Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D. At the same time, it was not necessary for the argument to rise to that level. Mr. Devaney only had to establish that in this material respect her Honour mistook the facts. 138Mr. Devaney did not give evidence at the proceedings on sentence. The available evidence consisted largely of the reports of the psychiatrists recording the histories provided by Mr. Devaney and expressing opinions in the light of the history received. Additionally, with relevance to this issue, amongst the references tendered as to character and remorse (Exhibit E), there was a letter to her Honour from Mr. Devaney's parents who stated that following an operation in respect of an industrial accident received on 6 June 2006: Todd was very depressed and he spent most of his time on the lounge watching television and increasingly not taking care of himself. He was becoming increasingly anxious and suspected people were hacking into our computer and that the telephone was being bugged. We were very concerned about his behaviour and contacted various organisations including drug rehabilitation (we suspected we may have been on drugs), our doctor and the local medical health unit. We did this anonymously as we were aware that he would get very angry with us if we disclosed who we were. This evidence did not place these events chronologically with precision, except to say they followed the surgery, which inferentially, occurred in 2006. 139The printout of a COPS entry tendered before the learned sentencing judge recorded that Mr. Devaney had attended Penrith Police Station in July 2007 complaining that police were tapping his mobile phone (which they were not). Mr. Devaney apparently asserted that it started around the time of the Cronulla riots. Whilst one may accept, as her Honour obviously did, that Mr Devaney's belief was a paranoid manifestation of his underlying disease, one must question the timing of the onset of it. The court may take judicial notice that the Cronulla riots occurred on 11th December 2005. There is no real suggestion anywhere in the evidence of an onset of Mr. Devaney's illness quite as early as that. The earliest possible manifestation, based on the histories provided to the psychiatrists, is early 2006, before his accident, when he underwent a religious experience while visiting the Great Pyramid. 140As the sentencing judge, her Honour was entitled to discount the observations of Mr. Devaney's parents. As lay-folk, the medical significance of their observations was likely to be worthy of little weight. They frankly acknowledged that their view that Mr. Devaney has been suffering from a mental illness for many years prior to his accident was based on hindsight. Moreover, such weight as their observations of Mr. Devaney following the 2006 industrial accident may otherwise bear is confounded by the circumstance that following that occurrence he developed severe depression for which he received treatment from a psychologist: Dr. Wilcox Exhibit "A" 15th June 2010. For what it is worth, there is no evidence that the psychologist suspected, let alone "diagnosed", a psychotic illness. 141It is accurate to say that each of the psychiatrists, based on the history received from Mr. Devaney, expressed the view that his mental illness had developed over a period of years, rather than months, prior to May 2008. Dr. Allnut said approximately 4 to 5 years; Dr. Wilcox seems to date the onset of symptoms from 2006. Likewise Dr. Westmore (6th February 2009 page 7). Dr. Westmore read some typed pages composed by Mr. Devaney, according to Mr Devaney's own account, some time in 2006. Dr. Westmore considered that their content would suggest a disturbed mental state of unknown aetiology. 142The learned sentencing judge said more than once that she was not prepared to act upon statements made by Mr. Devaney to psychiatrists. For example, at ROS 12 she said: Any statements made to his psychiatrists are of a self-serving nature, not subject to scrutiny, and said in the knowledge that they would be used in court and in mitigation. The purpose of a psychiatrist interview is different to the fact-finding exercise required to be undertaken by a court. 143The learned sentencing judge closely analysed the content of the account given by Mr. Devaney to the psychiatrists. She did so in a very systematic way when dealing with each of the many factors that she considered relevant to her decision. At ROS 20, her Honour said: He appears to be attempting to manipulate the interviews with the psychiatrists to have potentially favourable information before the Court while avoiding difficult issues such as his past conduct towards Miss Graham. And at ROS 26 - 7 she expressed the view that very considerable caution should be exercised in relying on such statements when an offender does not give any evidence and the matters are in dispute. In my judgment, this approach is unexceptionable and her Honour was entitled to look for, and rely on, objectively demonstrable facts rather than Mr. Devaney's hearsay account as recorded in the psychiatric reports. 144I appreciate the force of the President's view that the expertise of psychiatrists extends to assessment of the significance of a patient's history for the purpose of diagnosis (see [88] hereof). However it seems to me a question may still arise about the reliability of the patient's account without calling into question the expert's reliability or competence. Psychiatrists are not experts in the acceptability of lay evidence: HG v The Queen (1999) 197 CLR 414 at 427 [42]-[44]. 145For my part, I am not persuaded that her Honour's approach to the facts portrays any process error, or otherwise has been shown to be wrong. In my view, her Honour's analysis of the factual matters was cogent and the conclusions she reached were more than open to her. Her Honour gave appropriate weight to the evidence relating to the applicant's acute psychotic disorder at the time of the offences and did not mistake the primary facts relating to it.

Did her Honour fail to correctly apply the principles relevant to sentencing mentally ill offenders to the facts of the present case? 146After considering the evidence regarding the applicant's mental illness, her Honour went on to outline the principles relevant to the impact of mental health issues on sentencing. In this regard, reference was made to a series of cases said to demonstrate the competing considerations the court must take into account (ROS 29). 147Her Honour made reference to the following principles from R v Hemsley [2004] NSWCCA 228 per Sperling J at [33]-[36]: [33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person [36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence [citations omitted]. 148That passage, of course, has been very frequently applied in this court. Some examples only will suffice: Director of Public Prosecutions (Cth) v. De La Rosa (2010) 79 NSWLR 1 at 43 [177] per McClellan CJ at CL; Reberger v R [2011] NSWCCA 132 at [54] - [55] per Campbell JA; Beldon v. R. [2012] NSWCCA 194 per Johnson J; R. v. Bugmy [2012] NSWCCA 223 per Hoeben JA at [44]. 149The sentencing judge also noted the case of Courtney v R [2007] NSWCCA 195 in which Howie J at [83] said: The fact that an offender is mentally ill does not mean that the sentence imposed must be less than that imposed upon a person who commits the same criminal act without any abnormality of mind. It may do so for all the reasons given in R v Israil [2002] NSWCCA 225. In particular the fact that the offender is suffering from a mental illness may reduce the person's culpability. But even that fact does not necessarily result in a lesser sentence. Mr Veen's culpability for the second killing was diminished by reason of his mental illness but it did not mean that the maximum penalty for the offence was not appropriate: Veen v R (No 2) (1988) 164 CLR 465. This was because the protection of the public required that he be sentenced to a period of imprisonment by way of preventative detention because of his danger to society. Provided that the sentence is commensurate with the gravity of the offence viewed objectively, there is no error of principle in imposing a sentence aimed at protecting the community from the offender's recidivism by removing him or her from society. 150Her Honour also made reference to R v Manna [1999] NSWCCA 314, in which Hidden J at [26] said the following: His [mental] condition should be taken into account but, in the circumstances, it cannot afford him any marked measure of leniency. On the other hand, of course, it must not lead to the imposition of a sentence more severe than that which would have been appropriate if he were not suffering from any mental abnormality 151The last sentence was a reference to the principle expressed by the High Court of Australia in Veen v The Queen (No 2). In that case, Mason CJ, Brennan, Dawson and Toohey JJ said the following at 476-77: ...sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality 152There can be no doubt that her Honour correctly identified the relevant principles. The applicant's complaint is she failed to apply them. I would reject this argument. At ROS 16 her Honour said: Mental health issues are dealt with by reports from three psychiatrists, the issues of the offender's mental health are relevant, both to an assessment of moral culpability and to future dangerousness. There is a consensus that when the offence was committed the offender was in a state of psychosis. The cause of that psychosis has now been diagnosed as Paranoid Schizophrenia. This fact reduces the moral culpability of the offender for the offence and can effect the importance of general deterrence as a sentencing consideration. Each case depends on it's individual circumstances as to the ameliorating effect of a mental illness may have (sic) on moral culpability, may have on prospects of rehabilitation and the future danger to the community. 153In the end her Honour considered that the questions of Mr Devaney's prospects of rehabilitation, and future danger to the community, were those most difficult of resolution. With respect, in my judgment, this was the correct approach. The question of the protection of society is the subject of Ground 4 to which I will now turn.

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.

Ground 5: Her Honour erred in failing to give any or sufficient weight to the evidence of remorse. 169Her Honour carefully considered the question of remorse at ROS 26-27. Mr. Devaney complains in particular of the following statement at the end of that passage: His psychiatrist gave the opinion that he was well enough to plead and well enough to be in the general prison population, he was obviously then well enough to give evidence but chose not to do so. That is his right, however he cannot have the benefit of a finding of credibility in relation to the information he gave to psychiatrists in those circumstances. [Emphasis in the applicant's written submissions]. To emphasise the clause underlined is to take it out of context. Her Honour was not stating a proposition of law. Rather, she was expressing a conclusion of fact that she made in those circumstances, having regard to the reasons that she had already given by way of analysis of the issue and the evidence. Those matters were also dealt with at ROS 15 and 16 to 17. In these passages, her Honour gave cogent reasons for not accepting the statements of remorse recorded by the psychiatrists at face value. Her reasons included that Mr Devaney in his account to Dr. Westmore maintained that Ms. Graham was the cause of his difficulties, and blamed the victim for most of what had gone wrong. Statements of this nature tended to undermine the bare expressions of remorse. 170Acceptance by the psychiatrists of the genuineness of the remorse did not advance the applicant's case. That topic was not a matter for expert evidence: HG at 427 [41]. As her Honour acknowledged at ROS 27, a psychiatrist may be able to state as a matter of expertise that paranoid schizophrenia does not militate against Mr. Devaney telling the truth. But the point is that the question of whether he was telling the truth when he expressed remorse is entirely a question of fact for the trial judge, and the reasons expressed by her Honour for not accepting his out of court expressions of remorse were in my opinion open. 171Counsel were in agreement about the relevant law. Section 21A(3) of the Sentencing Act provides that the mitigating factors to be taken into account in determining the appropriate sentence includes: (1)the remorse shown by the offender for the offence, but only if: (i)the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 172This Court has held that, on its proper construction, the statutory precondition to reliance on remorse as a mitigating factor is the requirement under s21A(3) for an offender to provide evidence that he or she has accepted responsibility for his or her actions, has acknowledged any injury, loss or damage caused by his or her actions, and of any reparation for such injury, loss or damage, or of any of those matters: Butters v R [2010] NSWCCA 1 per Fullerton J at [17], (with whom McClellan CJ at CL and McCallum J agreed). This requirement does not equate with a requirement that the offender give evidence personally, either of remorse generally or of the matters set out in the section, before remorse can be taken into account in the calculation of sentence: Butters at [16] - [17]. 173Fullerton J in Butters went on to say the following at [18]: ...his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 69 and TS v R [2007] NSWCCA 194 at [30]. 174And in Pfizner v R [2010] NSWCCA 314, McClellan CJ at CL said at [33]: In Butters the court made plain that s 21A(3)(1) of the Crime (Sentencing Procedure) Act does not require an offender to give evidence before a finding of remorse is available. However, it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made. It is one matter for an offender to express remorse to a psychologist and a psychiatrist or even when interviewed by the police and quite another matter to give sworn evidence and be cross-examined about the issue. When interviewed by the police or by a psychiatrist or psychologist it is unlikely that the offender's response will be challenged. It may be otherwise when the offender gives evidence. Furthermore, an issue of remorse may be susceptible to evaluation by consideration of an offender's demeanour, an opportunity which will be denied the sentencing judge unless the offender gives evidence. Her Honour's decision on this factor was in my view open to her.

Ground 6: The total sentence and the standard non-parole period for count 1 was manifestly excessive 175Although formulated as a "manifest excess" ground, the argument advanced on behalf of Mr. Devaney raised specified errors of principle. This is a curiosity: Wong at 605 [58]. The errors specified included an asserted Muldrock error and, by reference to Muldrock, a reiteration of factors relevant to grounds 1 - 4. 176The applicant submitted that her Honour, in a manner contrary to Muldrock, impermissibly used the standard non-parole period either as a starting point for the determination of an appropriate sentence, or by giving it 'determinative significance' in fixing the sentence: submissions at 82 and 83. 177The applicant further submitted that the moral culpability of the applicant, the significance of general deterrence, the need to make the applicant accountable for his actions and the denunciatory purposes of sentencing are all of much less significance in this case (submissions 83). In support of this submission, Muldrock at [53] and [54] is relied upon: [53] ...One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this [R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160]: "General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." In the same case, Lush J explained the reason for the principle in this way [at 160-161]: "[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community." [54] The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. 178With respect to the second of these arguments, the Crown submitted that the degree to which a sentencing judge is obliged to moderate the significance of general deterrence in any case is essentially a matter of discretion, taking into account all the relevant factors on sentence when making a value judgment as to what is considered to be an appropriate sentence in all of the circumstances. Reference is made to Veen v The Queen (No. 2) at 476-477. 179The Crown also relies on R v Wright (1997) 93 A Crim R 48 at [51] as authority for the proposition that where a mentally ill offender acts with knowledge of what he or she is doing and with knowledge of the gravity of the actions, the moderation by reason of general deterrence need not be great. The gravity of the criminal conduct is also an important consideration: R v Wiskich [2000] SASC 64 at [62]; cited with approval in R v Z [2006] NSWCCA 342. It was further submitted that by his guilty plea the applicant has accepted criminal responsibility for intent to kill the victim, and acted with knowledge of what was being done and with knowledge of the gravity of his criminal conduct. On this basis the Crown submitted that, having regard to the criminality involved, and notwithstanding his mental health, the sentencing judge was entitled to determine that the overlapping purposes of sentencing required a sentence in accordance with that which was given. 180It will be apparent that many of these arguments reiterate what was ventilated in relation to grounds 3 and 4. To that extent I am not satisfied that this ground is made out for the reasons I have already expressed. 181The Crown submitted that the sentence imposed on count 1 was wholly warranted in law on the given facts, and that when regard is had to the two legislative guideposts of the maximum sentence of 25 years, on the one hand, and the standard non-parole period of 10 years, on the other, a non-parole period of 10 years 1 month with an additional term of three years is not unreasonable or plainly unjust. 182As I have already stated, her Honour passed sentence on Mr. Devaney at a time when Way held sway. But, as I have said already, it does not follow that the decision is affected by Muldrock error. It is more than evident from her Honour's careful approach that she did not commence by asking whether there are reasons for imposing the standard non-parole period nor did the learned sentencing judge proceed to an assessment of whether the offence is within the mid range of objective seriousness and thereafter make additions, or subtractions, according to aggravating, or mitigating, factors found. Rather in my judgment, her Honour, consistently with Muldrock at 131 [26], adopted an approach to sentencing which accords with the judgment of McHugh J in Markarian. 183Her Honour identified all of the factors relevant to the sentence, discussed their significance, and made a value judgment as to the appropriate sentence given all the factors of the case. On a careful and fair reading of her Honour's remarks as a whole, there is no hint or flavour of any adoption of any impermissible two-stage approach. Among the factors considered and fully discussed by her Honour were the following: (a) Injuries to, and consequences for, the victim; (b) The aspect of domestic violence and other circumstances of the offence; (c) Premeditation as a circumstance of the offence; (d) Commission of the offence causing potential risk to others; (b)The history of prior offences in response to supervision in the past; (c)An argument (inconsistent with the plea) that Mr. Devaney desisted in his intent to murder; (d)Mr. Devaney's personal and subjective circumstances and in particular the significance of his mental illness; (e)Future danger to the community or any specific person; (f)Remorse and contrition. Of all these factors, her Honour fully appreciated the centrality of the issue of mental illness in the particular circumstances of this case. 184In my judgment, her Honour did identify fully the facts, matters and circumstances which the judge conclude[d] [bore] upon the judgment that [her Honour] reached about the appropriate sentence to be imposed: Muldrock at 132 [29]. I would regard her Honour's conclusion at ROS 30 that the shooting with intent to murder was an offence which was slightly above mid-range seriousness as a product of instinctive synthesis. Bearing in mind that: This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence, like the one under discussion, balances many different and conflicting features (Wong at 611 [75]). 185Moreover, I accept the force of the Crown argument that the degree to which mental illness will bear upon the significance of each relevant conflicting factor affected by it is a matter of weight for the trial judge. Questions of weight are a barren field for a party aggrieved by a sentence. In my judgment, the sentence is neither unreasonable nor plainly unjust. I respectfully disagree with the President that the sentence is manifestly excessive.

Ground 7: Her Honour erred in failing to find special circumstances and impose a non-parole period less than three-quarters of the total sentence. 186As Mr. Devaney acknowledges in submissions, the learned sentencing judge found that the need for accumulation was a special circumstance. Having regard to it, her Honour adjusted the statutory ratio fixed by s.44(2) Sentencing Act downwards, according to my reckoning, by a period of five months. Mr. Devaney describes this adjustment as very minor (AWS [89]). This may be so. It is also argued that his need for an extended period of conditional release subject to supervision on parole to ensure compliance with necessary treatment regimes was a consideration that cried out for a finding of special circumstances further reducing the s44(2) ratio (AWS [91]). 187In support of this argument, reference was made to Phelan v R (1993) 66 A Crim R 446 at 449-450. The applicant submitted that her Honour failed to consider the evidence of Dr Westmore and Dr Allnut and the implications of that evidence, which are said to be that the critical factor in ensuring that the applicant no longer poses a danger to the community on release will be his supervision on parole and his adherence to any medication regime or any other safety provisions that will be considered by experts who will provide reports closer to his release. 188The Crown submitted that the decision as to the finding of special circumstances is essentially a matter within the trial judge's discretion: R v Cramp [2004] NSWCCA 264 at [29] - [37] per Spigelman CJ. 189In R. v. Simpson (2001) 53 NSWLR 704 at 719 - 20 [73] Spigelman CJ (with whom the other members of the five bench court relevantly agreed) said: There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequately or manifestly excessive. 190Findings relating to special circumstances are questions of discretion par excellence. It is difficult for a court of criminal appeal to find appellable error justifying an appeal, let alone re-exercise the sentencing discretion, on that ground alone. 191In R. v. Sutton [2004] NSWCCA 225 at [30] Howie J said: His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in jail. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for "extended supervision and counselling". I believe that the non-parole period should be four years. It should be pointed out that those observations were made after his Honour had found appellable error on other grounds and had proceeded to re-exercise the sentencing discretion. The comments in no way constitute any statement of principle, and do not assist Mr. Devaney in the present case. 192Her Honour did not find that the matter constituted special circumstances in the present case. The evidence supporting such a need related Mr. Devaney's mental illness. But the mental illness itself, and its consequences and ramifications, was taken into account in a variety of different ways as her Honour considered the various factors relevant to the determination of the appropriate sentence. To have taken the matter into account again at this point may well have been to double count it's effect. Leaving that question to one side, I am of the view that her discretion did not miscarry by reason of a failure to make a finding of special circumstances on account of a need for extended supervision on release. By then he will have been under supervision and treatment for some years. The additional term fixed, in any event, is not a short period of supervision. Accordingly, I would reject ground 7.

Additional Ground 193During the course of oral argument, the Court raised with counsel the question of whether, for sentencing purposes, there was an analogy between the circumstances of Mr. Devaney's offence and an offence of murder reduced to manslaughter by reason of a substantial impairment by abnormality of mind within the meaning of s.23A Crimes Act. After all, at least at one level, had Mr. Devaney's murderous intent been fully fulfilled, on the evidence I have recounted, that question would have been a live issue had Mr. Devaney stood trial for murder. If the analogy is a true one, then the pattern of sentencing, if any, and subject to legal constraints, may have been a consideration relevant to Mr. Devaney's manifest excess ground. 194The legal constraints to which I have referred include some of the principles discussed in Wong (at 606 [59]) and Hili v. The Queen; Jones v. The Queen (2010) 242 CLR 520. Both relate to sentencing principles for federal offences, but the relevant principle is equally applicable to State law, subject to statute. In Wong Gaudron, Gummow and Hayne JJ said: Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unified principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the Judge who is about to pass sentence on the offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. (Emphasis in original) 195One may accept, of course, that the concept of consistency should be included amongst the list of established principles to which the exercise of the sentencing discretion is subject: cf Muldrock at 128 [18]; Wong at 591 [6]. 196As the plurality of six justices of the High Court of Australia pointed out in Hili, consistency is not demonstrated by numerical equivalence. The requirement relates to consistency in the application of relevant legal principle: Hili at 535 [48] - [49]. Although it is legitimate for sentencing judges to have regard to what has been done in other cases (Hili 536 [53]) regard to the outcome of comparable cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal (Wong at 606 [59]). 197It is important to emphasise that the plurality in Hili specifically approved of the following statement of principle by Simpson J in De La Rosa at 70 [303] - 71 [305] (Hili at 537 [54]). A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong v The Queen (at [59]). In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character andantecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character. (Emphasis added). 198Given the provisions of s.8 Judicial Officers Act 1986 (NSW), it needs to be borne in mind, as I have said, that Wong, Hili and De La Rosa involve expositions of Federal law. The information and reports disseminated by the Judicial Commission in relation to sentencing must be regarded as relevant considerations to be taken into account in the interests of consistency. However, the statements which I have quoted may be taken to extend beyond Federal jurisdiction's curtilage. They represent a statement of principle derived from the general law in the Federal context. 199As the plurality pointed out in Hili at 539 [60], what reveals manifest excess, or inadequacy, of sentence is a consideration of all the matters that are relevant to fixing the sentence by the appellate court. The detection of manifest error is not fundamentally intuitive. 200In compliance with the direction made by the Court, the parties lodged with the Registry an additional submission concerning this ground. As it transpires, the statistics maintained by the Judicial Commission do not separately compile and collate sentences in cases to which s.23A Crimes Act applied, nor does the Director of Public Prosecutions. The Public Defender's Office does maintain a record on its website, a printout of which was provided to the Court together with similar information in regard to three additional cases provided by the DPP. In total, 47 cases were provided between 1999 and 2011. The schedule also records that s.23A was amended with effect from 3rd April 1998 to replace the former provision that dealt with the partial defence of diminished responsibility. 201Mr. Devaney argued that the material provided was relevant because it would create an anomaly if the applicant's sentence was not proportionate to the sentence that might have been expected had the victim died and the applicant faced a sentence for an offence of manslaughter [reduced from murder on the basis of substantial impairment]. It is argued that such proportionality calls for a significantly lower sentence in the present case. 202The Crown argued that any attempt at comparison is unproductive and contrary to principle. That approach would require the Court to speculate about what a jury might have found about the question of whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: s.23A(1)(b) Crimes Act. I would accept Mr. Devaney's argument that this question is a matter which the sentencing court was qualified to decide had the question arisen for it's determination. 203This highlights a difficulty. Because the question was raised by the Court in the course of the hearing of the application for leave to appeal, the question was not agitated below, although some evidence relevant to it was led in the form of psychiatric evidence, but the Judge was not called upon to consider the matter. 204Given the principles established in relation to the proper use of comparative sentences, in my judgment, it is not appropriate to seek to identify any "tariff" from the raw material provided, much less to undertake the exercise of individually examining all the circumstances of each of the 47 cases involved in an attempt to deduce from a close examination of all the factors considered relevant to the sentence actually passed, principles which may be applied to achieve a sentence in the present case reasonably consistent with all of the sentences in the other 47 cases. Because of the limited utility of information of the type under consideration, in my judgment the relevant principle does not require the Court to explore each of these cases in detail. 205The results provided by the parties range from a suspended term of imprisonment of two years (R. v. Mathers [2011] NSWSC 339) to a term of imprisonment of fourteen years with a non-parole period of eight years (R. v. Heatley [2006] NSWSC 1199). In Heatley the manslaughter sentence was ordered to be served cumulatively with a four year fixed term for an unrelated armed robbery. The total effective term of imprisonment was eighteen years with a non-parole period of twelve years. 206But, as Simpson J pointed out in De La Rosa, the only true range is that fixed by parliament. And in the present case, that range is from zero to twenty-five years: s.29 Crimes Act. It should also be borne in mind that Veen (No. 2) involved an offence under the former s.23A. In the circumstances of that case, the appropriate sentence was an indeterminate, life term. 207In Heatley the offender, in gaol on remand at the time of the homicide of a new cell-mate, had said: I didn't want to kill him man, I didn't even know him. I'm not schizo but I do have a mental problem. I'm homicidal, I have told them that for days. Then they tell me this morning that they're putting this guy with me and I begged them not to but they said they were going to. I told them I'll kill him but they just said "you're full of shit". So about 11:30 they put us together and by 12:30 he's dead. I didn't want to do it, I know he's got a mum and dad and his mum is probably crying now. I know what it's like to lose someone. I lost my dad. (Heatley at [9]). The offender also had said that the deceased had done nothing to provoke him, and that he had kicked the deceased to death. It is difficult to draw any comparison of principle useful to the present case. 208Except to say that the results in these cases show that a very wide range of sentences have in fact been imposed in the past for crimes under s.23A Crimes Act, in my judgment, they do not provide any guidance given that the Court does not have the whole of the circumstances that have given rise to the sentence in each of those individual cases (De La Rosa at 70 [304]). I agree with what the President has written at [94]. 209As the Crown have argued it is also well to bear in mind that an offence under s.29 Crimes Act is one of specific intent. By his plea Mr. Devaney admitted that he had the specific intent to commit murder. That specific intention is one, but only one, of the significant factors in the case. The intent to kill rises above other aspects of mens rea sufficient to support a conviction for murder. 210I express my appreciation to the parties for providing the additional information requested. But it does not cause me to alter the view I have formed in relation to Grounds 1 to 7. 211I would have disposed of the appeal as follows: (1) Leave to appeal granted. (2)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2012