Ground 1
i. The sentencing judge erred in failing to properly take into account the evidence of the applicant's mental illness in the determination of the sentence.
ii. The sentencing judge erred by finding that it was appropriate to reflect general deterrence .
46 Before he was sentenced the applicant had been seen by two psychiatrists, Dr Canaris who made a report dated 19 May 2008 and Dr Westmore who made three reports dated 8 October 2008, 4 December 2008 and 11 May 2009. The main purpose of Dr Canaris' report and Dr Westmore's first report was to provide expert opinion on whether the applicant was fit to stand trial. Both psychiatrists found that the applicant was fit to be tried. In his report Dr Canaris said that the applicant might be suffering from depression and an anxiety disorder and possibly morbid jealousy.
47 In his report of 8 October 2008 Dr Westmore made the following diagnosis:-
""Probable post-traumatic stress disorder - this diagnosis to be confirmed would require me to have extensive contact with Mr Mercael but if his brief account of his experiences in Iraq are true and correct ones, then it is likely those experiences have had a significant and detrimental effect on his mental state.
Depression - my provisional diagnosis is that this man suffers a moderate to severe adjustment disorder with depressed and agitated mood. The differential diagnosis would include a major depressive illness.
I note that Dr Canaris has raised the possibility of morbid jealousy and that condition does need to be considered. At this time however I am of the view that his attitudes towards his wife, his marriage and the break up of his relationship are generated by his cultural background and personality factors rather than a mental illness such as morbid jealousy."
48 Dr Westmore concluded this report by saying:-
"At this time I believe Mr Mercael to be fit to be tried. He does not have a metal illness defence to the charges but the court might take into account his very difficult background history and his likely severely depressed mood at the time the incident occurred by way of mitigation."
49 In this report Dr Westmore said that access to the applicant's Justice Health file might shed more light on his mental state shortly after he was detained and at other times.
50 In his report of 4 December 2008 Dr Westmore reviewed the Justice Health records of the applicant to which he had been given access. Dr Westmore expressed the following opinions:-
"The additional material indicates that Mr Mercael's overall presentation was that of an anxious, depressed man. He demonstrated a range of behavioural disturbances and he expressed various ideas of a social and cultural nature which probably reflect his background. Those ideas appear to have brought him into conflict with the views of the Australian community and caused him to become agitated and at times persecuted in his thought content.
…………
He is obviously a very troubled man, he appears to have been very unhappy in Australia and he may have had difficulties adjusting to the social and cultural values which he reports are so different from those of his upbringing."
51 Dr Westmore said in his report of 4 December 2008 that the diagnostic opinions he had offered in his previous report remained unaltered.
52 In his last report Dr Westmore said:-
"There has obviously been some progress in Mr Mercael's legal case since I last assessed him and I believe some progress in his mental state as well. While he remains depressed, he is less agitated and certainly less angry. He has stopped a hunger strike and while his insight into the wrongness of his actions still appears to be compromised he was able to acknowledge that he was sorry for what he had done."
53 In his remarks on sentence the sentencing judge said that he accepted that at the time of the offences the applicant had been suffering from a major depressive illness. The sentencing judge said that he also accepted that the applicant had had difficulty in adjusting to changes in his life.
54 The sentencing judge quoted the parts of Dr Westmore's second report which I have quoted. His Honour observed that the summary of the Justice Health records in Dr Westmore's second report tended to support a tentative opinion Dr Westmore had expressed in his first report that the applicant might have a narcissistic personality trait.
55 The sentencing judge said that he accepted Dr Westmore's opinion "that this is not a case of morbid jealousy". His Honour continued:-
"It (the Court) also accepts that, at the time of the offence, the offender was experiencing a significant level of depression and having difficulties adjusting to the separation from his wife, having to care for three sons and the Dutch authorities rejection of his migration application."
56 The sentencing judge also said in his remarks:-
"The premeditation, his inquiry to the police about his wife and the abandonment of the vehicle so far away from the scene of the stabbing satisfies the court that, at the time of the stabbing, he knew what he was doing, that it was wrong and its consequences. The history of domestic violence deprives him of any claim that this assault was an isolated aberration."
57 In his remarks the sentencing judge noted the submission which had been made by counsel for the applicant in the proceedings on sentence that the applicant's culpability was diminished because of the state of his mental health at the time of the offences. Counsel had referred to the conclusion to Dr Westmore's first report which I have already quoted. Counsel had submitted that in this part of his report Dr Westmore had expressed an opinion that there was a causal connection, a "link", between the two matters referred to, and particularly the applicant's "likely severely depressed mood at the time the incident occurred", and the commission of the offence.
58 The sentencing judge rejected these submissions. In doing so his Honour referred to the decision of the Court of Criminal Appeal in Wilmot v R [2007] NSWCCA 278.
59 Dr Westmore had also provided evidence in the proceedings for the sentencing of the offender in Wilmot. In that case Dr Westmore had expressed the opinion that the offender "was mentally ill at the time of the offending behaviour and it is probable that his mental illness played an immediate or direct role in his offending behaviour".
60 In Wilmot the sentencing judge accepted that the offender had been suffering from a mental illness and took that into account as a subjective factor. However, notwithstanding Dr Westmore's opinion, the sentencing judge declined to find that the applicant's mental illness had played a role in the commission of the offence.
61 The Court of Criminal Appeal rejected a submission made on behalf of Wilmot that the sentencing judge had erred in not finding a connection between the mental illness and the commission of the offence. The leading judgment of the Court of Criminal Appeal was delivered by Hidden J. In par 32 of his judgment his Honour said:-
"I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant's mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 . It was open to his Honour to find that the connection had not been established."
62 In the present case Judge Sides noted that the decision of the Court of Criminal Appeal in Wilmot had been handed down on 28 September 2007, that is before Dr Westmore made any of his three reports about the present applicant. His Honour further noted that Dr Westmore had not in his later reports expanded or added to any opinion expressed in the conclusion to his first report.
63 It would seem to be implicit in Judge Sides' remarks on sentence that it can be inferred that Dr Westmore, as a leading forensic psychiatrist, would have soon become aware of the judgments of the Court of Criminal Appeal in Wilmot, including the remarks by Hidden J about his own evidence, and in the present case could be taken to have acted advisedly in expressing himself as he had in the conclusion to his first report and in not expanding or adding to that conclusion in his subsequent reports. This was an inference that it was open to his Honour to draw.
64 The sentencing judge concluded:-
"In the Court's view, as in the case of Wilmot and for the reasons given therein, the passage quoted above (the conclusion to Dr Westmore's first report) was "wholly inadequate to establish that link." In addition, in this case, the court is satisfied that the offender wanted to punish the victim because he was angry with her. In the court's view, that anger goes a long way to explaining his crimes but, in the absence of evidence of a causal connection between it and his depression and adjustment problems, does not provide an excuse for them. Although his levels of anger appear to have subsided since he has been taking his medication, Dr Westmore does not identify a causal connection between his depression and his anger. His anger may have arisen entirely because of his displeasure that his wife had not behaved in Australia and/or during the break up in accordance with cultural norms that the offender still adhered to and was not in any way a symptom of his depression."
65 Elsewhere in his remarks his Honour said:-
"The court considered whether, because of his depression and adjustment problems at the time of the offences, the offender is an appropriate vehicle to be used to deter others. The court has found that, out of anger, the offender decided to punish the victim and took the knife with him to achieve that end. It also found no causal connection between his mental illness issues and his crimes. In the court's view, it is appropriate to reflect general deterrence in this case. In light of his failure to alter his ways in response to the criminal justice system's earlier interventions, it is also appropriate to reflect personal deterrence in the sentences."
66 On this application it was submitted that "his Honour took a selectively angled view in dismissing any causal connection between the applicant's depression and the commission of the offences". It was submitted that it had not been reasonably open to the sentencing judge to find that the applicant's mental condition was of no relevance in the sentencing process.
67 I do not consider that Counsel for the applicant's submissions should be accepted.
68 In Engert v R (1995) 84 A Crim R 67 Gleeson CJ said at 71:-
"The existence of such a causal relationship (between the mental disorder and the commission of the offence) 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."
69 However, the existence of such a causal relationship will often be a matter of some mitigation of penalty and in the present case the principal contention made on behalf of the applicant was that the sentencing judge had erred in not finding such a causal relationship.
70 As the existence of such a causal connection or relationship would be a matter of mitigation, the onus is on an offender to prove, on the balance of probabilities, that such a causal connection existed and, at least ordinarily, expert evidence will be required to prove the connection (see Wilmot at [26] and [32] per Hidden J).
71 In the present case the sentencing judge held that the evidence sought to be relied on in the conclusion to Dr Westmore's first report was inadequate to establish the connection and the sentencing judge observed that Dr Westmore had not supplemented that evidence in his subsequent reports.
72 In the conclusion to his first report Dr Westmore had said that a court might take into account the applicant's likely severely depressed mood at the time the offences were committed by way of mitigation.
73 It is unclear whether this statement by Dr Westmore amounted to expressing an opinion that there was a causal connection between the applicant's depressed mood and the commission of the offences. The statement fell short of the clear opinion expressed by Dr Westmore in Wilmot that it was probable that the offender's mental illness had played an immediate or direct role in the offending behaviour.
74 However, even if Dr Westmore should be taken as having expressed in his first report an opinion that there was a causal connection between the applicant's depression and his offending, a bare assertion of a connection, without elaboration, would be inadequate to establish such a connection. See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 especially at 743-744.
75 The sentencing judge's finding that no connection or link had been established was a finding as to a matter of fact and this Court is bound by such a finding unless it was not open on the evidence or unless error is demonstrated within House v The King (1936) 55 CLR 499 at 504-505. See for example Kalemusic v R [2009] NSWCCA 178 at [27].
76 In the present case I consider that the sentencing judge's finding, for the reasons given by him, was open on the facts and no error has been established.
77 In the absence of the applicant establishing a causal connection between his mental illness and the commission of the offence, there was no error in the sentencing judge's treatment of the evidence of the applicant's mental illness. It is not correct to say that the sentencing judge held that the applicant's mental condition was of no relevance in the sentencing process. His Honour did take into account, in the applicant's favour, that his mental illness would make imprisonment more onerous for him.
78 It not having been established that there was any causal connection between the applicant's mental illness and the offending, there was no error in his Honour's finding that the applicant was an appropriate vehicle for a sentence to be imposed which would give effect to the sentencing purpose of general deterrence.
79 I would reject the first ground of appeal.