Grounds 2 and 3
13 The applicant tendered a report from a clinical psychologist, Mr Gregory Fathers, dated 12 October 2007, two reports from a forensic psychiatrist Dr Stephen Allnutt, dated 29 and 30 January 2008 respectively as well as the report prepared by Mr Borenstein to which I referred earlier. Upon the basis of that material, counsel who appeared for the applicant at the sentence hearing, submitted that his Honour should find that the applicant was not fully aware of the consequences of his actions by reason of the applicant's mental condition: s 21A(3)(i) Crimes (Sentencing Procedure) Act, 1999. In making that submission counsel relied primarily on an opinion expressed by Mr Fathers.
14 The sentencing judge accepted, in accordance with well-established authority, that an offender's mental state may have relevance to the sentencing task in several ways. For example, where it is causally related to the offence, the offender's moral culpability may be reduced. It may also reduce the weight to be given to general deterrence: see generally R v Hemsley [2004] NSWCCA 228.
15 It was in that context that the sentencing judge made the following finding:
The current mental state of the offender and his state at the time of the offences is very difficult to determine with any precision. The psychologist, Mr Fathers, concluded the [applicant's] mental state affected his culpability for his actions by saying this,
However some clemency is suggested. In my opinion Mr Dionnet had an abnormality of mind of sufficient degree to substantially impair his mental responsibility for his acts.
When I first read that I raised with….counsel for [the applicant], what it was in Mr Fathers' report, in the previous pages, which explained such a conclusion. [Counsel], to my recollection,, indicated that there was some difficulty in identifying that matter. The case was therefore adjourned once again in order that Mr Fathers' material could be supplemented, if possible. The matter came before me again today but the only thing [counsel] was able to present was the report of Mr Borenstein for the Victims Compensation Tribunal Proceedings. It remains, therefore, as I see the material before me, simply a matter of Mr Fathers' opinion, unexplained, that the moral culpability of the offender is diminished because of an abnormality of mind.
The psychologist and the psychiatrists who have seen the offender do suggest that there is some problem with his mental state, although it is difficult to determine what that problem is. I prefer the opinion of Dr Allnutt who notes that because the offender denies that he committed these two offences, it is not possible to draw any firm conclusions about any potential relationship between his mental state and the alleged offence, only to state that he reports active symptoms at around that time. Not everyone who is mentally unwell, or who reports symptoms of mental illness, has impaired judgment in the sense that their moral culpability for offences of this kind is reduced. The onus is on the offender to demonstrate that mitigating matter on the balance of probabilities. I am not satisfied that anything in the offender's mental state is such as to diminish his moral culpability for his two offences.
16 It was contended on behalf of the applicant that the sentencing judge erred in reaching the conclusion to which I have just referred. However, the only direct evidence which could have established the necessary causal link arose from the opinion expressed by Mr Fathers. His Honour was quite entitled to reject that opinion given that no basis was advanced by the author to justify it. Nor was any submission advanced in this court to suggest that his Honour had erred in that respect.
17 What was submitted however was that there was other material to which Dr Allnutt referred in his reports, other than the extract to which the sentencing judge referred, which was capable of bearing upon this issue. An examination of those reports makes it clear that the highest Dr Allnutt could put the matter was that the applicant reported active symptoms of psychosis and anxiety at about the relevant time. The other reports which were in evidence simply did not address the present issue. Counsel also sought to rely upon evidence given at the trial concerning the applicant's conduct on the day of the incident. Reference was made to evidence given by the complainant that the applicant stared at her on two occasions and to other evidence that after the assaults took place, rather than running away, the applicant simply returned to his room and went to sleep. It suffices to say in disposing of that submission, that those features of the case apparently did not commend themselves to either the sentencing judge or to counsel then appearing for the applicant because neither of them made any reference to them.
18 It is to be noted that nearly a year elapsed between the jury returning its verdicts and the applicant being sentenced. That delay was occasioned solely by adjournments sought on behalf of the applicant to obtain reports concerning his mental condition. Notwithstanding the latitude which was extended to the applicant, no independent material was adduced which may have shed light upon the applicant's mental condition at, or about the time, of these offences. In summary, given the state of the evidence, it was well open to the sentencing judge to arrive at the conclusion which he reached and no error in that respect has been demonstrated.
19 So far as ground 2 is concerned, it is instructive to refer to this court's decision in Zaharos v R [2008] NSWCCA 336 in which McClellan CJ at CL, with whom Grove and Howie JJ agreed, said:
Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36]. (par 14)
20 There is nothing in the evidence to suggest that the applicant did not understand what he was doing or that he did not understand the gravity of his actions.
21 In Sayin v R [2008] NSWCCA 307, Grove J, with whom McClellan CJ at CL and Howie J agreed, said:
Although there may not be a link between a mental illness harboured by an offender, if such a conditions exists it may be that the offender is unsuitable as a vehicle to exhibit general deterrence and if that be the case, logically, the absence or the reduction of the significance of such an element would operate to reduce the assessment otherwise reached: R v Scognamiglio [12991] 56 A Crim R 81.
However, it does not inevitably follow that the existence of some mental illness must result in a lesser sentence: Courtney v R [2007] A Crim R 371. (pars 24-5)
22 Although those remarks are apposite to the present case, the sentencing judge did nevertheless indicate that he was prepared to have regard to the applicant's mental condition in order to ameliorate the sentence. In that context his Honour said:
However, even if the precise nature of the offender's illness is unclear I am prepared to proceed on the basis that because of his mental state he will do his time in custody harder than would otherwise be the case. [The applicant] appears to have some level of thought disorder and this will inhibit communications with others in gaol and, as I have said, will mean that his conditions of custody will be felt harder by him that would otherwise be the case.
23 In the circumstances, I would reject both Grounds 2 and 3.