3. The sentences imposed are set aside. In lieu thereof, a sentence of 12 months' imprisonment, to commence on 24 June 1988, is imposed. Execution of that sentence is suspended from and including 29 October 1988 until the expiration thereof, upon the following conditions:-

(a) That the appellant, during the period of three years commencing on the date of his discharge from prison, place himself under the supervision of a Welfare Officer appointed under the Alcohol and Drug Dependency Act 1968 and that he comply with that Officer's lawful directions as to his place of residence, place of employment and his associates .

(b) That he forthwith surrender all firearms and ammunition owned by him or under his control to the Crown Law authorities or the police for disposition on his behalf.

(c) That he at no time during the said period of three years use, have in his possession or acquire a firearm of any description, or reside in any premises in which firearms are usually kept.

(d) That he be of good behaviour during the said period of three years, and in particular, commit no offence involving violence to persons or property during that period.

(e) That he during the said period of three years undertake an assessment by a medical officer at intervals of not more than six months, as directed by his Welfare Officer, of his continuing rehabilitation from alcohol dependency.

1 I agree with the reasons of Cox J in this matter, and agree with the orders he proposes.

2 Application for leave to appeal against the sentence imposed on the appellant in the Criminal Court at Burnie on 30 June 1988 following pleas of guilty to one count (count 1) of being unlawfully armed in public contrary to s78 of the Criminal Code, one count (count 2) of assault contrary to s184 of the Criminal Code and one count (count 3) of unlawfully injuring property contrary to s273 of the Criminal Code. The terms of the sentence were as follows:

"Count 1 Sentenced to 12 months imprisonment.

Count 2 Sentenced to 6 months imprisonment - cumulative upon the sentence imposed on count 1 - but wholly suspended.

Count 3 Sentenced to 12 months imprisonment - cumulative upon count 1 but concurrent with the sentence on count 2 - such sentence being wholly suspended (Counts 2 & 3) for a period of three (3) years upon the following conditions.

1. That he place himself under the supervision of a Welfare Officer appointed under the Alcohol and Drug Dependency Act and that he comply with that Officer's lawful directions as to his place of residence, place of employment and his associates.

2. That he forthwith surrender all firearms and' ammunition now owned by him or under his control to the Crown Law authorities or the police for disposition on his behalf.

3. That at no time during the period of suspension is he to use, have in his possession or acquire a firearm of any description and is not to reside in any premises in which firearms are usually kept.

4. That he be of good behaviour and in particular, commit no offence involving violence to persons or property during the period of suspension."

3 The grounds of the application are the following:

"1. That the learned trial judge erred in fact and in law in failing to give sufficient weight to the appellant's diminished responsibility for his actions.

2. That the learned trial judge erred in law and in fact in failing to give sufficient weight to the fact that the crimes were not committed for any rational motive and did not benefit the appellant in any way.

3. That the sentence was manifestly excessive having regard to all the circumstances of the case."

4 The facts giving rise to the charges are that the applicant and his de facto wife on 5 January 1988 were travelling in a motor vehicle on the Bass Highway between Stanley and Burnie. The applicant was a front seat passenger and the de facto wife was driving. Before the commencement of the journey from Stanley to Burnie the applicant had consumed in excess of two bottles of port.

5 Before the events giving rise to the charges occurred, the applicant had hit his head on the dashboard of the motor vehicle causing him to become irritable and agitated.

6 A short distance from the Stanley turn-off on to the Bass Highway the applicant noticed a car travelling behind the vehicle in which he was a passenger. Believing that this following vehicle was travelling too close behind his vehicle he produced a rifle, leaned out of the front passenger window and pointed the rifle at the following car for a period of approximately two seconds. The applicant denied pointing the rifle directly at the driver of the following vehicle saying "No, I would not have taken aim at him. I wouldn't have taken aim at anyone." From the evidence of the applicant's de facto wife ("Mrs Hurd") the rifle was not loaded at that stage. The applicant claimed that he pointed the rifle at the radiator of the following vehicle. When the driver of the following vehicle saw what was happening he swerved to the left hand side of the road and pulled up.

7 The count of unlawfully injuring property refers to an incident during the journey which occurred near the Burnie High School. A vehicle belonging to Mr S J Allen was travelling in front of the applicant's vehicle when it was struck by a bullet beneath the rear window and above the bootline. The bullet entered the vehicle on the right hand side above the boot and was in direct line with the position where the driver was seated. Both Mr Allen and his passenger Mr Archer were sprayed with upholstery from the rear seat. The projectile was recovered from the rear seat fragments. The driver, Mr Allen, recalled hearing a total of some four shots and he thinks it was the final shot which struck his vehicle. Mr Allen's passenger was of the opinion that there were five shots. At about the time of this incident other witnesses heard shots, up to four or five shots, and some heard two shots and some three shots.

8 When interviewed a few days later the appellant admitted firing what he believed to be two shots at Mr Allen's vehicle. He said he fired at the vehicle because, at an earlier stage, it had been travelling too close behind his vehicle. The appellant claimed that he took aim at the boot of Mr. Allen's vehicle because he did not want to hurt anyone. Asked by the interviewing police officer what his intentions were when he discharged the firearm he replied "Just to hit it, that's all, and slow it down". Later in the interview the appellant was asked what he usually used the rifle for and he replied "I never used it because it was useless". When clarifying the word "useless" he said "When you shot it you didn't hit, it was inaccurate". The weapon was an SKS model 45 semi automatic rifle, a Russian military side-arm firearm.

9 When asked by the police later that day as to why he took the rifle and a quantity of ammunition with him in the car he said "I always carry a firearm in case I break down. They would kill you in Melbourne if you haven't got one."

10 Some additional particulars were given by the Crown in the prosecutor's address of other acts with the rifle during this journey. They were given because of their relevance to the charge in count 1. The additional particulars were:

1 After the assault the subject of count 2, the victim of that assault, Mr. Knight, caught up with the appellant's vehicle again but was careful not to get too close. Once again, he noticed the appellant motioning with the rifle.

2 A vehicle driven by a Mr Cleaver followed the appellant's vehicle at one stage of the journey. Mr Cleaver followed for several kilometres and noticed that the appellant was continually turning around in his seat and looking at him. The appellant once again produced a rifle and started motioning with it in the general direction of Mr Cleaver. At the police interview, the appellant asserted that the reason he produced the rifle on this occasion was because Cleaver was travelling too close behind the appellant's vehicle.

3 While at the BP Service Station on the Bass Highway at Somerset a Mr Gardam noticed the appellant's vehicle drive past. He also noticed the barrel of a rifle pointing out of the passenger's front window.

4 At about the same time a Mr Cumming, who was travelling in the opposite direction to that being travelled by the appellant's vehicle, observed a person leaning out of the window of the appellant's vehicle with a rifle in his hand.

11 After the incident the subject of count 3, the appellant and Mrs Hurd travelled a short distance back to their residence at Cooee and parked the vehicle out the front of the residence. The appellant took the rifle inside and they went to bed. On the following two days some efforts were made to dispose of the rifle and hide the identity of the vehicle. But it is worthwhile noting that on the night of these incidents the vehicle was left parked outside the house.

12 On 9 January, when replying indirectly to a question from a court, the applicant stated that his mother had died in October and he had been drinking far too much and had been stupid.

13 There was one prior conviction only, a charge of assault heard 14 August 1973 when the penalty was "Fined $25 costs $2.60. Placed on a bond of $100 own recognizance to be of good behaviour for 12 months" .

14 In the plea in mitigation Mr Tremayne submitted that the unfortunate series of incidents were the direct result of brain damage which resulted from a lengthy period of alcohol abuse. The brain damage led to quite severe paranoia which supplied the explanation of the appellant's conduct in carrying a rifle. It was submitted that the combination of the brain damage and paranoia were added to and exacerbated on the day of these incidents by the appellant consuming in excess of two bottles of port at a time when he was taking prescribed drugs.

15 Mr Tremayne called a specialist psychiatrist, Dr W C Kerr, to give evidence to the learned judge. In summary that evidence was:-

16 That Dr Kerr had admitted the appellant to the psychiatric ward at the North West General Hospital on 23 January 1988. Dr Kerr had not seen the appellant prior to that occasion.

17 At that time, Dr Kerr was aware of these charges and their nature. He gave the opinion that, at the time of the incidents the appellant was in need of psychiatric care. In the gaol the appellant had undergone a typical delirium tremens, a withdrawal syndrome from alcohol. Dr Kerr said that, by the time they got him, "that was largely altered" and the patient had gone on to participate in the alcohol rehabilitation course - forced abstinence, vitamin replenishment and the usual treatment for an alcohol dependent Person.

18 Dr Kerr said that the appellant was in hospital from 23 January 1988 to 8 February 1988. The treatment was commenced on the appellant's own initiative. Dr Kerr felt that, at the time he gave evidence, 24 June 1988, the active treatment phase was over but there was some need for supervision from time to time.

19 Dr Kerr said that physically the appellant was a good deal better on 24 June 1988 than he was at the time the offences were committed. The appellant felt better and some of the early signs of alcohol damage, the peripheral neuritis things, had disappeared. The appellant had lost some of his emotional incontinence, he was more stable in his moods but he still had some memory problems.

20 Asked "What degree of rational judgment did Mr Hurd have available to him at the time the offences were committed?", Dr Kerr replied "Well, I think his ability to judge the situation sensibly was seriously impaired because of paranoia, high irritability and a diminished sense of self restraint related to the brain damage caused by alcohol. And there was also the additional factor of intoxication from valium and alcohol." Asked "Are you able to say Dr Kerr, what of those factors was the primary cause for the loss of self control or the inability to control?" he replied "I think undoubtedly the brain damage, which was quite significant and confirmed on psychological testing, had been present for a long time and it's the brain damage that's responsible for the paranoia, the diminished sense of being able to control yourself and the irritability."

21 Dr Kerr said that the paranoia was a consequence of the brain damage. The paranoia and the brain damage had been present for several years and he thought that the appellant felt for quite a few years that he was at risk in a city situation or something could happen to him in which he would have to defend himself.

22 Asked "Dr Kerr, was Mr Hurd at that time able to weigh the potential advantages and disadvantages of his behaviour when he committed the offences?" he replied "Well, to some extent I think he was but I think he became overwhelmed by his feeling that he was in mortal danger and the moment had finally come when they had come to get him, sort of thing". Asked "Are you able to say what influenced him to go armed in public on that day?" he replied "I think it was a habit that had been established for some years and he felt that he was at risk that if anything happened to his car or if someone took a fancy to having a go at him". Asked "In your opinion, was he able to control his behaviour on the day he committed the offences?" he replied "His behaviour then wasn't completely automatic, it wasn't completely out of control and there was a degree of control in as much as he didn't try, as far as I know, to kill a person. He tried to scare the person and he didn't fire the total magazine or anything like that. There was a sense of restraint present, there was some modification of his behaviour that he could still accept." Asked "Are you able to pass an opinion as to the extent of that self control?" he replied "Well, as I say, he wasn't totally out of control and yet he had no ability at that time to assess the situation in sensible or practical terms".

23 Dr Kerr expressed the opinion that it was highly unlikely that the appellant would ever behave in this way again, as long as he refrains from the use of alcohol or drugs. He was satisfied that the appellant had abstained from alcohol and drugs from the time of these incidents and was completely convinced on the need for abstinence.

24 Read in the light of Dr Kerr's evidence Dr Reynolds' reports are valuable. Dr Reynolds reported on 1 February last that he was first asked to see the appellant by the police in the Burnie Police Station on 11 January 1988 as the appellant was delirious and hallucinating. The appellant was in custody on remand following his arrest on these charges. On examination of the appellant Dr. Reynolds found that the appellant was markedly anxious, was trembling and had hallucinations in that he thought he could hear music coming from the ventilation grills in his cell. He also felt that insects were crawling over him. He was refusing to sleep in his bed and was generally in a distraught condition.

25 The appellant admitted to Dr. Reynolds that he had consumed alcohol heavily for most of his adult life and, in particular, during the previous three months following the death of his mother.

26 Dr Reynolds felt that the appellant was suffering from alcohol withdrawal syndrome, i.e. delirium tremens brought on by his cessation of heavy drinking following his arrest. Dr Reynolds prescribed valium, a sedative, to control his symptoms during the withdrawal period.

27 Dr Reynolds saw the appellant again on 20 January immediately after his release on bail. At that time the appellant's mental state was much improved although he was still requiring valium to help him sleep and also during the day occasionally to calm his anxiety. Dr Reynolds referred him to Dr Kerr.

28 Dr Reynolds found the appellant horrified at the magnitude of his actions and the possible harm that may have occurred. This realisation of the seriousness of his alcohol condition has prompted him to seek professional help, to join Alcoholics Anonymous and to be admitted as a voluntary patient to the psychiatric ward of the North West General Hospital.

29 Dr Reynolds reported further on 21 June 1988. He advised that he had continued to see Mr. Hurd regularly. He found that the appellant had made remarkable progress. He had abstained from alcohol completely following his arrest. He attended the meetings of Alcoholics Anonymous on a regular basis. His acute alcohol withdrawal symptoms settled quickly and he was not on medication on 21 June 1988.

30 Dr Reynolds felt that the appellant's prognosis was good provided he remained off the alcohol permanently. He felt that the appellant understood the importance of total and permanent abstention and was well motivated. Dr Reynolds felt that a custodial sentence would be detrimental to him as it would destroy the self esteem and confidence he had managed to build up in the five months following his arrest. Dr Reynolds found that the appellant's personality, when not affected by alcohol, was very inoffensive and benign and he was unlikely to be involved in any trouble while he remained off alcohol.

31 There was evidence that the appellant joined Alcoholics Anonymous on his own initiative, was a very cooperative member of it and had attended meetings regularly.

32 There were references which testified to the fact that these crimes were out of character.

33 A probation and parole officer reported as follows:

"Supervision is not seen as necessary to minimise the danger of further offences nor would it be effective in achieving that aim as Mr. Hurd's future performance as far as observance of the law is concerned would appear to be entirely dependent on his adherence to the determination to seek treatment for alcoholism and the effectiveness of such treatment. . . . . On balance it would therefore seem that Hurd is more properly a case for supervision by an officer of the Mental Health Service. "

34 In his plea in mitigation Mr Tremayne submitted that the appellant's condition at the time the crimes were committed did not satisfy the test in O'Neill v R [1977] HCA 24; (1977) 141 CLR 496 and, therefore, it was not a case where it would have been appropriate for a finding in a trial of not guilty by reason of insanity. He submitted that it was more like the situation of Gilchrist, CCA, 82/1982, that is, suffering from mental disease which substantially reduced his capacity to control his actions.

35 Mr Tremayne submitted in his plea in mitigation that the appellant was 51 years of age, born in Queenstown, one of seven children. He was brought up on the West Coast of Tasmania where he completed his secondary education. He completed an apprenticeship as a tinsmith and worked for ten years as a tradesman tinsmith. He then obtained a welding certificate and worked as a welder for nine years. In 1973 he purchased a taxi and operated that in Queenstown for a period of six years. Then he returned to his welding work at Mr Lyell. At about this time he guaranteed the purchase of an expensive motor car for his son. The car was subsequently repossessed and the guarantee was enforced forcing the sale of the appellant's home.

36 The appellant then left Tasmania and went to Melbourne where he worked for two years as a welder. Thinking that welding was affecting his eyes he took up cleaning work and lived in a caravan at Brighton in Victoria while he did that work. He returned to Tasmania in May 1987 and had been unemployed since that time.

37 Of the seven members of the appellant's family two were alcoholic and both died of alcohol related diseases.

38 The appellant was 21 years of age when he married. He had five children whose ages ranged from 26 years to 15 years. The marriage ended in divorce after 15 years.

39 At the time of the hearing the appellant was residing in Burnie with his de facto wife of thirteen years standing. Two sons were residing with him, one son still being dependent on him. The relationship with his de facto wife was described as a supportive one.

40 The appellant's alcohol consumption gradually increased over the years until about 1980 when he resorted to drink after losing his father, a brother and his house in the space of two years. In 1982 a second brother died of alcohol related problems. From 1980 onwards his alcohol consumption increased dramatically until the stage was reached where he was consuming between two and three bottles of cheap fortified port each day. After he returned to Burnie he did not have a job.

41 Mr Tremayne's instructions were that, after his release from custody, the appellant abstained completely from consumption of alcoholic liquor.

42 Mr Tremayne submitted to the learned sentencing judge that rehabilitation should be the aim of the sentencing process and he relied on the reasons for judgment of Everett J in Gilchrist (supra) and the reasons for judgment of the Chief Justice and Lush in Mooney (below).

43 Grounds 1 and 2 of the application should be upheld.

44 On a plea of guilty a sentencing judge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime for which he has pleaded guilty. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which often should be given very little weight (D A Thomas, Sentencing the Mentally Disturbed Offender [1965] Crim L R 685; Gilchrist (supra) per Everett J; R v Anderson [1981] VicRp 17; [1981] V R 155; Mooney [1978] 2 Crim L J 351; Thiele (1985) 19 A Crim R 105). That is because such an offender is not an appropriate medium for making an example to others (Mooney (supra)). In the same case it was said "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. Others suffering from the same or similar mental disorder would be unlikely to be deterred by the knowledge of a custodial sentence imposed on the appellant (Thiele (supra) , p110).

45 It is clear that, at the time these offences were committed, the appellant's true level of culpability was low. Considerations of general deterrence and retribution cannot justify this sentence. There was clear evidence of remorse. There was clear evidence that the crimes were out of character. There was clear evidence that an appropriate course of treatment had been voluntarily undertaken and was proving successful. That being so, the evidence not indicating a need to protect society from the appellant, the punitive and deterrent aspects of the sentencing process should not have been allowed to prevail so as to possibly destroy the results of that rehabilitation (cf Duncan v R (1983) 47 ALR 746). With respect, the sentence was unnecessarily punitive and, hence, wrong. Appropriate treatment was all that the public interest required, and, in all the circumstances, all that justice indicated.

46 For these reasons there should be the following orders:

4 There shall be an order that the appellant be of good behaviour for a period of three years and during that period:

(a) place himself under the supervision of a welfare officer appointed under the Alcohol and Drug Dependency Act and that he comply with that officer's lawful directions;

(b) that at no time is he to use, have in his possession or acquire a firearm of any description and is not to reside in any premises in which firearms are usually kept.

47 The applicant pleaded guilty to one count of being unlawfully armed in public contrary to s.78 of the Criminal Code, to one count of assault contrary to s. 184 thereof and to one count of unlawfully injuring property contrary to s273 of the Code. The learned trial judge sentenced him to a total period of two years' imprisonment, but suspended the execution of the last 12 months of the sentences he imposed on a number of conditions specially tailored to the circumstances of the case. He achieved this result by a somewhat circuitous process for he was precluded by s386 of the Criminal Code from suspending a proportion only of a single sentence in excess of 12 months' duration. What his Honour did was to sentence the applicant to 12 months' imprisonment on the first count, in respect of count 2 to six months' imprisonment cumulative upon the last mentioned sentence but wholly suspended on the conditions which hereafter appear and on the third count to 12 months' imprisonment cumulative upon that imposed on count 1 but concurrent with that imposed on count 2 and likewise wholly suspended on the same conditions. Those conditions were:

"1. That he place himself under the supervision of a Welfare Officer appointed under the Alcohol and Drug Dependency Act and that he comply with that Officer's lawful directions as to his place of residence, place of employment and his associates.

2. That he forthwith surrender all firearms and ammunition now owned by him or under his control to the Crown Law authorities or the police for disposition on his behalf.

3. That at no time during the period of suspension is he to use, have in his possession or acquire a firearm of any description and is not to reside in any premises in which firearms are usually kept.

4. That he be of good behaviour and in particular, commit no offence involving violence to persons or property during the period of suspension."

48 The facts giving rise to the charges are that the applicant and his de facto wife were on the 5 January this year motoring on the Bass Highway between Stanley and Burnie. The applicant's de facto wife was driving the motor vehicle and the applicant was a front seat passenger. Prior to the commencement of the trip from Stanley to Burnie the applicant had consumed in excess of two bottles of port. He had hit his head on the dashboard of the motor car causing him to become irritable and agitated.

49 A short distance from the Stanley turn-off onto the Bass Highway the applicant noticed a car travelling behind the motor vehicle in which he was a passenger. Believing that vehicle was travelling too closely behind his vehicle, he produced a rifle, leaned out the front passenger window and pointed the rifle at the following car for a period of approximately two seconds. The applicant denied pointing the rifle directly at the driver of the vehicle saying, "No I would not have taken aim at him. I wouldn't have taken aim at anyone." From the evidence of Mrs Hurd, the applicant's de facto wife, the rifle at that stage was not loaded. The applicant claimed that he pointed the rifle at the radiator.

50 The third count of unlawfully injuring property involved the applicant firing a number of shots, one of which struck a vehicle being driven by a Mr. Knight. The applicant's motor vehicle had travelled from the Stanley turn-off to the outskirts of Burnie where that vehicle came up behind it. That vehicle subsequently passed the applicant's vehicle and travelled immediately in front of it. The applicant, believing that the vehicle had been travelling too close behind his vehicle, leaned out of the passenger's window and fired a number of shots, one of which struck the vehicle in front. The applicant told police that he fired at the vehicle's boot as he did not want to hurt anyone.

"1. That the learned trial judge erred in fact and in law in failing to give sufficient weight to the appellant's diminished responsibility for his actions.

2. That the learned trial judge erred in law and in fact in failing to give sufficient weight to the fact that the crimes were not committed for any rational motive and did not benefit the appellant in any way.

3. That the sentence was manifestly excessive having regard to all the circumstances of the case. "

52 The learned trial judge heard evidence adduced by the applicant from a psychiatrist, Dr. W.C. Kerr. In substance he said without challenge from the prosecutor that the applicant suffered from organic brain damage caused by chronic alcoholism and that this damage in turn had induced a state of paranoia. Asked what degree of rational judgment the applicant had available to him at the time of the offence Dr. Kerr replied, "Well I think his ability to judge the situation sensibly was seriously impaired because of paranoia, high irritability and a diminished sense of self restraint related to the brain damage caused by alcohol. And there was also the additional factor of intoxication from Valium and alcohol." His evidence continued:

"Are you able to say, Doctor Kerr, what of those factors was the primary cause for the loss of self control or the inability to control?.... I think undoubtedly the brain damage, which was quite significant and confirmed on psychological testing, had been present for a long time and it's the brain damage that's responsible for the paranoia, the diminished sense of being able to control yourself and the irritability.

The paranoia, did that have any relationship to the brain damage? .... Yes, the paranoia is really a consequence of the brain damage.

And did the paranoia have any relationship to the carrying of the rifle?.... I think so. I think the paranoia and the brain damage had been present for several years and I think he had felt for quite a few years that he was at risk in a city situation or something could happen to him in which he would have to defend himself.

Doctor Kerr, was Mr. Hurd at that time able to weigh the potential advantages and disadvantages of his behaviour when he committed the offences? .... Well, to some extent I think he was but I think he became overwhelmed by his feeling that he was in mortal danger and the moment had finally come when they had come to get him, sort of thing.

Are you able to say what influenced him to go armed in public on that day? . . . . I think it was a habit that had been established for some years and he felt that he was at risk that if anything happened to his car or if some one took a fancy to having a go at him.

In your opinion, was he able to control his behaviour on the day he committed the offences?.... His behaviour then wasn't completely automatic, it wasn't completely out of control and there was a degree of control in as much as he didn't try, as far as I know, to kill a person. He tried to scare the person and he didn't fire the total magazine or anything like that. There was a sense of restraint present, there was some modification of his behaviour that he could still accept.

Are you able to pass an opinion as to the extent of that self control?....Well, as I say, he wasn't totally out of control and yet he had no ability at that time to assess the situation in sensible or practical terms.

Doctor, are you able to pass an opinion now as to the likelihood of this type of incident recurring?.... I think it's highly unlikely that he would ever behave in this way again, as long as he refrains from the use of alcohol or drugs.

Are you satisfied that he has remained free of those two things you mention since treatment? .... Yes, I am satisfied that he has.

Doctor Kerr, from your knowledge of Hurd, are you able to pass an opinion as to the effect on the prisoner of a term of actual imprisonment? .... I don't think it would make any difference to his subsequent way of conducting himself. I think he is completely convinced on the need for abstinence. I don't think there would be anything to gain by imprisonment."

53 Dr Kerr's evidence may well have been sufficient to satisfy a jury that the applicant was insane within the meaning of s16(1)(a)(ii) of the Criminal Code inasmuch as it demonstrated that "through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure (and in consequence that) it (might) be said that he could not know that what he was doing was wrong" (per Dixon J in The King v Porter [1933] HCA 1; (1933) 55 CLR 182, at 189 - 190). In the event of such finding the law would require that he be dealt with as a mentally disordered person who has become subject to the criminal process (s382 ibid). His further disposition would be beyond the control of the court. However, he did not seek a finding of insanity and it fell to the learned trial judge to impose an appropriate punishment for the offences committed by him and for which the law holds him responsible.

54 In R v Anderson [1981] VicRp 17; [1981] V R 155, Young C J and Jenkinson J in a joint judgment cited with approval a number of observations made in an earlier unreported decision of R v Mooney delivered on the 21 June 1978. At p160 their Honours set out the following statements in that case made by the Chief Justice:

"'It is well established that when a trial judge turns to the task of passing sentence upon an offender convicted by a jury, he is obliged to take "his own view of the facts and to decide how serious the crime is that has been committed, and how severely or leniently he should deal with the offender". See R. v. Harris, [1961] VicRp 36; [1961] V.R. 236. But he must not act upon a view of the facts that is inconsistent with the verdict of the jury. On a plea of guilty a sentencing judge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime to which he has pleaded guilty.

'How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence?

'In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. (Cf. Sentencing the Mentally Disturbed Offender by D.A. Thomas [1965] Crim. L.R. 685. Reference may also be made to an article by Dr. Glanville Williams in [1963] Crim.L.R. 730, at p.742, although in any reference to practices in other jurisdictions the sentencing alternatives available must be kept in mind. See also and cf. R. v. Gascoigne, [1964] Qd.R. 539; R. v. Kocan, [1966] 2 N.S.W.R. 565). 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. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced.'"

They also cited these words from the judgment of Lush J. in the same case:

"The sentencing court, however, must proceed upon the basis that the offender has accepted legal responsibility for his offence, either by a plea or verdict. His mental condition, and in particular the possibility that his mental condition in the future may be different from that existing at the time of the offence, remain significant in the determination of what is an appropriate course to be adopted in relation to him as an individual and to the protection of the community from him and from those who might be disposed to imitate him." (At p161).

55 Finally, they noted that Jenkinson J in Mooney had agreed in what had been said by the Chief Justice and by Lush J., but subject to the observation that "an evaluation of the offender's moral responsibility for his crime is always required in the exercise of the sentencing discretion". (Also at p161). The third member of the court in Anderson, Murphy J, said that he accepted that "the law on the subject of sentencing persons of abnormal intelligence is as laid down in R v Mooney (unreported, 21 June 1978) and R v Bardek (unreported, 15 November 1978), the former of which is referred to in the judgment of the Chief Justice and Jenkinson, J." (at p164). I respectfully agree with the substance of their Honours' remarks, while sharing the reservation expressed by Jenkinson J which I have set out.

56 The dilemma in a case like this is to determine how much responsibility the mentally disordered applicant should bear. Ex hypothesi he is responsible for his actions - he has not reached that state where he is afflicted with mental disease to such an extent as to render him incapable of knowing that his act is one which he ought not to do and his acts are voluntary and intentional. In respect of the third count his plea acknowledged that they were in addition wilful. Nevertheless, the medical evidence clearly demonstrates that he had far less perception of the wrongness of his actions and less capacity to control his behaviour generally than a person unafflicted with any kind of mental disease. For that reason he should have been treated as far less morally responsible and deserving of less punishment.

57 The applicant is a man of 51 years with only one previous conviction, one so old indeed that the learned trial judge said that it might for all practical purposes be left out of account. He has throughout most of his life been engaged in regular employment, first as a tinsmith and subsequently as a welder and then as a taxi driver. He moved to Melbourne about seven years ago and worked again as a welder for two years, but finding it too hard on his eyes worked for four years as a cleaner before returning to Tasmania in May 1987 since when he has been unemployed. His first marriage broke up after 15 years and for the last 13 years he has lived in a very stable de facto relationship with another woman together with two of his sons. By the time he went to Melbourne he had acquired a drinking problem which arose out of financial troubles and the deaths of his father and brother. His drinking escalated and on his return to Burnie from Melbourne he drank even more because he was unoccupied and his mother had died about three months prior to the commission of the offences. It was by now his habit to drink between two and three bottles of cheap fortified port each day. Notwithstanding this degeneration into chronic alcoholism, he was able to produce references from a number of responsible citizens who spoke highly of him .

58 Following his arrest he was held in custody for about a fortnight and exhibited classic signs of alcohol withdrawal, including delirium and hallucinations. On his release on bail he was voluntarily admitted to the Spencer Division of the North West General Hospital under Dr Kerr's supervision. By the time he appeared in the Supreme Court to plead his general practitioner, Dr Reynolds, reported that he had made remarkable progress. He had abstained from alcohol completely since his arrest. He had joined Alcoholics Anonymous and attended their meetings regularly and his acute alcohol withdrawal symptoms had settled quickly, requiring at first Valium for sedation, but by then he was not in receipt of any medication. Dr Reynolds further expressed the view that his personality when not affected by alcohol is very inoffensive and benign and that he was unlikely to be involved in any trouble while he abstains from alcohol. Other factors in mitigation put were that the crimes were not premeditated and there was no rational motive for them and that, as the learned trial judge accepted, the applicant was genuinely remorseful for his actions and had pleaded guilty at the first opportunity.

59 On the material placed before the learned trial judge action under the Mental Health Act 1963 by way of a hospital order or a guardianship order was not appropriate. Before either order can be made it must be shown that the applicant is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality and that the mental disorder is of a nature or degree that warrants his detention in an institution for medical treatment or his reception into guardianship (as the case may be) (s51(1) (a)).

60 Dr Kerr's evidence was that the applicant had received inpatient treatment at the Spencer Division until the 8 February 1988 and that in late June, so far as treatment was concerned, he considered the applicant "probably should have supervision from time to time, but the actual active treatment phase is completed". He continued:

"Physically he is a good deal better. He feels better and some of the early signs of alcohol damage have disappeared in terms of peculiar feelings of his feet and so on, the peripheral neuritis things. He has lost some of his emotional incontinence. He is more stable in his moods but he still has some memory problems."

"Q. Doctor did your psychological testing show any evidence of organic brain damage?

A. Yes.

Q. And is that damage reversible?

A. The strange thing is about alcoholic brain damage that some people with quite extensive damage do recover after a period of a year or 18 months of complete abstinence. They make a partial recovery at least.

Q. And in your opinion had Mr. Hurd commenced to make a partial recovery?

A. I think he has, yes.

Q. This paranoia that you said he suffered from, in your opinion is he still suffering from that?

A. No.

Q. And is it likely to re-occur if he abstains from alcohol?

A. If he abstains it won't recur. If he starts drinking again there's a high likelihood that it would.

Q. And so in your opinion whatever order the court makes a period of supervision would be desirable?

62 In these circumstances it seems to me doubtful that the applicant could be said, at the time of sentence being passed, to be either suffering from a mental illness or psychopathic disorder or that his detention in an institution for medical treatment or his reception into guardianship was warranted. Some form of supervision such as his Honour imposed as a condition of the suspension of the execution of part of the sentence could be achieved without recourse to that Act.

63 Nothing in the learned trial judge's comments on passing sentence specifically demonstrates to my mind any failure on his part to appreciate the diminished degree of the applicant's responsibility for his criminal actions. He perceived nevertheless a need to deter the applicant from any repetition of these offences and endeavoured to achieve that by the suspension of the execution of a substantial part of the overall sentence. By directing that a part of that sentence should in fact be served his Honour anticipated with some confidence that this would reinforce the applicant's resolve to give up alcohol altogether, a process already well in hand. His Honour was entitled to anticipate that the prospect of being liable to serve the balance of the sentence should he fail to observe the conditions upon which its execution had been suspended would likewise reinforce that resolve.

64 In my respectful opinion the imposition of a partly suspended sentence of imprisonment was an appropriate response to the difficult problem in hand. While it is clear that in the case of an offender suffering at the time of his crime from a mental disorder or abnormality, general deterrence is a factor which should usually be given little weight and the emphasis should be given to rehabilitation, the latter factor and that of personal deterrence are not mutually exclusive. The suspension of the whole or part of a sentence of imprisonment is intended to act as a deterrent to future misbehaviour through threat of the consequences of breach of any condition and at the same time to aid in the rehabilitation of the offender. In some cases an actual sentence of imprisonment may have a rehabilitative effect. In the present case the learned trial judge said that he did not disregard the impressive and apparently so far effective steps the applicant had taken to combat his alcoholism. His Honour continued:

"I am told that he is now a teetotaller and that he has responded extremely well to rehabilitative treatment that he had undergone. To further encourage this process it seems to me to be entirely appropriate, particularly taking into account the views expressed in the Court of Criminal Appeal in Gilchrist's case, No. 821982, that a substantial part of the sentence imposed upon the prisoner should be suspended. In many cases this is not an appropriate course, even for a mentally disturbed offender, because the process of rehabilitation is still continuing at the time of the sentence and this process can sometimes best be achieved by a period in prison. In the present case however, whilst it is premature to say that rehabilitation is complete, it is plain that the initial difficult steps have been undertaken successfully and that the prisoner is now in effect upon a self regulated maintenance programme."

65 The learned trial judge was entitled to form the view that the process of rehabilitating the applicant would be enhanced by serving part of a sentence of imprisonment and being made liable to serve the balance if he failed to abide by the conditions of its further execution being suspended. The applicant is not an unintelligent man, he is quite capable of appreciating the threatened punishment of the law and the wrongness of voluntarily putting himself, through abuse of alcohol, in a position where he might re-offend. He is capable of being held in check by the prospect of punishment (cf the remarks of Dixon J in R v Porter (supra) at p187). It may be that the regimen for controlling his abuse of alcohol would succeed without a partially suspended sentence of imprisonment, but in my view the learned trial judge was entitled to be dubious of that and, in the exercise of his discretion, to impose such a sentence partly to reinforce the applicant's resolve and partly to assist him in a practical way by removing the temptation to consume alcohol by his incarceration. However, I am not persuaded that a total sentence of two years' imprisonment, half of which was suspended, sufficiently recognised the diminished responsibility of the applicant. An actual sentence of that duration might well be appropriate in the case of an offender without the applicant's mental problems, even in the case of one who like him had no previous convictions. But any greater sentence might well, in my respectful view, be difficult to justify. A comparison of the objective circumstances of this case with those considered by the Court of Criminal Appeal in R v Solberg (4787) would tend to support this view. Having regard to the applicant's mental state and to his otherwise exemplary background I am persuaded that the sentences imposed, taken in the aggregate, were in all the circumstances manifestly excessive, notwithstanding the suspension of the execution of a large proportion of them, and that his Honour could not have given sufficient weight to the applicant's diminished responsibility for his actions.

66 I would accordingly grant the application and allow the appeal. In my respectful view an appropriate sentence would be one of 12 months' imprisonment with the execution of a substantial proportion thereof being suspended on the conditions imposed by the learned trial judge. As the applicant has been in custody since 24 June this year, I would order such sentence to commence on that date and suspend the execution of the balance thereof on the conditions I have mentioned together with the further condition:

"That the applicant during the said period of three years undertake an assessment by a medical officer at intervals of not more than six months, as directed by his welfare officer, of his continuing rehabilitation from alcohol dependency."