Ground 3 : Error in :
(a)his Assessment of the Severity of the Applicant's Underlying Depression and Other Symptoms of Bipolar Disorder
(b)in Concluding that it was a Possibility that the Applicant's "Stabilisation of Mood" after Entering Custody may have been Attributable to the Cessation of Alcohol Use.
38The first three grounds of appeal may be dealt with together. The applicant does not allege error on the part of the judge with respect to his Honour's appreciation of the relevance of mental illness to the sentencing exercise. The judge referred to the principles expressed in DPP (Cth) v De La Rosa [2010] NSWCCA 194, R v Israil [2002] NSWCCA 255, Lauritsen v The Queen (2000) 22 WAR 442; 114 A Crim R 333, and Miller v The Queen [1999] WASCA 66. Rather, the applicant complains that the judge's conclusions, which he drew from the evidence and the application of those principles, were "not reasonably open."
39On the hearing of the appeal, the applicant's senior counsel foreshadowed a challenge to the authority of R v O'Donoghue (1988) 34 A Crim R 397 as the basis upon which this Court should determine grounds of appeal alleging error as to fact finding. In that case, Hunt J stressed the nature of the jurisdiction under the Criminal Appeal Act 1912 and confirmed that error in fact-finding is demonstrated "if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself" (at 401). The applicant submits that such a test is too narrow.
40In DPP v JG [2010] NSWCCA 222 ; 220 A Crim R 19 at [21] and again in Aoun v R [2011] NSWCCA 284 at [4], Basten JA queried the sufficiency of Hunt J's formulation of the test for factual errors in both conviction appeals and sentence appeals. The implied criticism of Hunt J's formulation is one of completeness, not that a different test ought to be substituted.
41Aoun was concerned with a relatively straightforward finding of fact concerning whether the offender had the capacity to actually supply a quantity of drugs. Johnson J's judgment (with whom Adams J agreed) on this issue was :-
33.This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108.
34 It is important to keep in mind the limits of the jurisdiction of this Court where a finding of a first-instance Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue at 401:
"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v Merritt & Roso (1985) 19 A Crim R 360 at 372-373; Regina v Kyriakou (1987) 29 A Crim R 50 at 60-61."
35 This statement has been applied in a multitude of cases, including sentence appeals where a finding of fact is challenged on appeal: R v Khouzame [2000] NSWCCA 505 at [38]-[41]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [60]-[61]; Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 at 265 [56]; Camm v R [2009] NSWCCA 141 at [68]-[70]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at 335 [75].
42Ultimately, not only was O'Donoghue applied in Aoun itself and the cases that Johnson J noted, but it has since been applied in R v Choi [2010] NSWCCA 318 at [55] per R A Hulme J (Giles JA and Hislop J agreeing), Furia v Regina [2010] NSWCCA 326 at [35] per R A Hulme J (Giles JA and Hislop J agreeing), Michael v R [2011] NSWCCA 122 per Garling J (Macfarlan JA and Johnson J agreeing) and WW v R [2012] NSWCCA 165 per Hoeben CJ at CL (Johnson and Button JJ agreeing).
43In my view, this argument is misplaced. The judge's "findings" on the issue of his psychiatric condition were not findings of fact such as those addressed in the cases referred to above. With the possible exception of ground 3(b), which takes issue with a qualified finding of fact (namely, the reason for the applicant's improvement after entering custody), these grounds essentially attack the exercise of the judge's sentencing discretion. As Gleeson CJ said in R v Engert (1995) 84 A Crim R 67, at 1, :-
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make sensitive discretionary decisions. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law.
... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
44Accordingly, the basis upon which the judge's exercise of the sentencing discretion with respect to the applicant's mental illness ought be examined is that established by House v The King (1936) 55 CLR 499 at 504 - 505. If it can be demonstrated that the judge acted upon a wrong principle, took into account an irrelevant consideration, failed to take into account a relevant consideration, or that his assessment was unreasonable or plainly unjust, the intervention of this Court may be warranted.
45In any event, the applicant's contention that the judge's findings on this issue were "not reasonably open" mirrors the basis of House v The King error. There is no need to re-visit the application of O'Donoghue in the circumstances of this case.
46It must first be acknowledged that the judge's reasons extend over 49 pages of careful and detailed analysis of the circumstances of the offence (pages 1 - 8), the applicant's account provided to three psychiatrists (pages 8 - 16), the clinical observations of the applicant's mental state by Justice Health and by Dr Westmore since his arrest (pages 16 - 18), the evidence of the applicant's estranged wife (pages 18 - 19), the various psychiatric opinions regarding the applicant's mental state at the time of offending (pages 20 - 23), the motive for the offending and its relationship to the psychiatric opinions (pages 25 - 35), whether the applicant's mental state operated to reduce the applicant's moral culpability (pages 36 - 41), an assessment of the objective gravity of the offence (pages 42 - 44), and the applicant's subjective case (pages 44 - 47).
47With respect to the first ground of appeal, the applicant points out that the psychiatric diagnoses of the applicant were consistent, insofar as it was generally agreed that the applicant suffered an alcohol abuse disorder and a bipolar II affective disorder including a major depressive disorder and mood changes. The applicant also noted on the hearing of the appeal that the essential difference in the diagnoses of Dr Allnutt and Dr Westmore was one of degree. The applicant acknowledges that his Honour referred to this consistent psychiatric opinion.
48The finding which is said to underpin his Honour's error appears in the following passage :-
It has not been shown on the balance of probabilities that the offender's underlying mental disorders significantly impacted upon his judgment so as to reduce the moral culpability of the offender or is such that it would have any significant impact on ordinary principles of general deterrence. I am not satisfied that the underlying mental disorder affected his ability to understand the wrongfulness of his actions or to make reasonable judgments. The offender entered a house armed and disguised. He found the young girl on her own and vulnerable. At the time of placing the device he had prepared around the neck of the victim he would have appreciated the enormity of what he was doing and the terrible effect and consequence of his conduct upon the victim. He proceeded regardless. The underlying mental conditions do little to reduce the offender's moral culpability for such heinous acts.
49The applicant submits that, whilst no issue is taken with the rejection by the judge of the applicant's account of his offending to the various psychiatrists, nor with the judge's finding that the applicant's motive was the extortion of money, nonetheless the trial judge focused "so closely" on the applicant's un-creditworthy account that he "failed to properly consider the powerful and unanimous evidence linking the offending conduct to the applicant's mental health problems."
50That "powerful and unanimous evidence" derives from the evidence of Dr Westmore and Dr Phillips, the evidence of Ms Peters and objective features of the offence that are described in the applicant's submissions as "bizarre" and "strange".
51It is not necessary to recount the evidence to which the applicant refers for the purpose of dealing with this ground of appeal. There was no failure on the part of the trial judge to properly consider the evidence linking the offending conduct to the applicant's mental illness. The judge recounted that evidence in considerable detail in the course of his remarks on sentence.
52The assessment of the relevance of the applicant's mental illness begins at p 24 of the judge's remarks. Over the following 17 pages, the judge undertook a painstaking analysis of the evidence relating to the applicant's account of his offending to the various psychiatrists, the applicant's record of interview with police, objective features of the offending and the various psychiatric opinions. That analysis resulted in :-
(1)a finding, based on the applicant's record of interview with police, that the applicant's cognitive functioning at the time of the interview was not significantly impaired.
(2)a rejection of the applicant's case that his offending was designed to lead to his detection and treatment and that the applicant's behaviour related to the offending was "clumsy and amateurish".
(3)a finding beyond reasonable doubt that the applicant set in train a plan to extort money, that the offending involved significant planning over a period of time, and that the terms of the document were clearly of an extortionist nature designed to place the victim in substantial fear that she would be killed if the demand was not met.
(4)a finding that the offending was not the product of a psychotic state or the consequence of the offender assuming a character in his book.
(5)reference to a number of factors providing guidance in assessing the severity of the applicant's underlying depression and bipolar disorder at the time of the offending, namely,
(i)That there was no real basis for concluding that the applicant's answers and appearance in the record of interview were indicative of thought disorder.
(ii)That the Justice Health medical notes in the period soon after his entry into custody do not document thought disorder.
(iii)That the offender's stabilisation of mood after entering custody might, to a significant extent, be attributable to the cessation of alcohol use, on the basis that Dr Westmore noted in his report of 2 March 2012 that the applicant told him that his mental state had settled as a result of cessation of alcohol use.
(iv)That the applicant's marked change in response to medication after entering custody did not necessarily provide proof of a previous underlying psychosis.
53It is at this point that the judge arrives at a final assessment of the applicant's moral culpability having regard to the consistent psychiatric opinion of bipolar II affective disorder and alcohol abuse disorder. The passage set out above upon which the applicant relies occurs in the following context :-
It is reasonable to conclude, based upon the evidence of Mrs Debra Peters, to which I have referred, that the offender was experiencing symptoms of depression at the material time of the offending and was suffering mood changes. I have referred to the evidence concerning the severity of the symptoms experienced, particularly the evidence of Mrs Debra Peters; clinical observations of the offender since he entered into custody and the opinions of psychiatrists as to the manifestations of those symptoms prior, at the time of and the period following the offending. Having considered the evidence I cannot be satisfied that the severity of the conditions significantly impaired the offender's judgment at the time of the offending. To the extent that the underlying conditions impaired his judgment, in my view, that impairment does not significantly reduce the moral culpability of the offending. It has not been shown that the underlying conditions contributed to the offending in a material way.
[The judge then refers to the absence of evidence from the applicant to explain the offending. The passage set out at [48] immediately follows.]
The offender would have been aware that after he left the victim she would have experienced considerable trauma before it was determined that the device did not contain explosives. He would have understood, at that time, in the many hours that followed she was in fear she would be killed. The photographs of the young girl with a device around her neck conveyed the terror she experienced.
It would be artificial to totally remove consideration of the offender's depressive state when setting the sentence. I propose to allow some moderation to the sentence because of the offender's depression, however the moderation is minimal. In the circumstances here, whilst the offender's depression provides some background to his offending it does not significantly reduce the weight to be given to deterrence.
54Ultimately, the judge determined that the applicant had not discharged his onus of establishing a significant link between the offending behaviour and his psychiatric condition. In particular, his Honour was not persuaded that the applicant's mental illness significantly impacted upon his judgment so as to reduce his moral culpability, principally for the reason that the enormity of his criminality must have been appreciated by him at the time of the offence, yet he proceeded nonetheless.
55His Honour was entitled to make an evaluative judgment in the terms that he did. It is not the case that he drew the conclusion that the applicant's psychiatric condition was not causally related to his offending conduct. Rather, his Honour drew the conclusion that it was not significantly causally related to the offending conduct.
56None of the findings set out at [52] are challenged by the applicant, with the exception of (5)(iii) (ground 3(b)). I return to that matter below. The applicant does, however, place particular emphasis upon the findings at (4) and 5(iv) in support of his submission that the judge erred in his approach to the issue of mental illness. It was never the applicant's case that he was psychotic. The applicant argues that, in effect, his Honour dismissed the diagnosis of bipolar disorder and depression by discounting a diagnosis of psychosis.
57I do not accept that submission. His Honour was, in his usual careful and thorough manner, addressing the opinion of Dr Phillips, who was "the only psychiatrist who .. made a clinical observation of psychosis". Dr Phillips observed that during his clinical consultations with the applicant, the applicant "lapsed into a psychotic state when referring to the book". This aspect of his Honour's remarks occupies half a dozen paragraphs in the context of a discussion about the relationship, if any, between the offending and the authorship of the book. There is no indication that the judge placed undue weight upon the absence of psychosis in order to reach the ultimate conclusion. A reference to the opinion of one psychiatrist which was at odds with an otherwise uniform diagnosis was justifiable in the interests of completeness.
58It is uncontroversial that general and specific deterrence may be given less weight when sentencing a mentally ill offender because "the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his .. cognitive facilities or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments." : R v Henry & Ors. [1999] NSWCCA 111 at [254] per Wood CJ at CL. This statement is not confined to the existence of a mental disorder at the time of offending. It has been confirmed on a number of occasions since then that it also applies at the time of sentence : R v Israil [2002] NSWCCA 255 at [21] ; Courtney v R [2007] NSWCCA 195 at [14] - [16] ; Leach v R [2008] NSWCCA 73 at [10] and [11] ; Devaney v R [2012] NSWCCA 285 at [81].
59The applicant's second ground of appeal is inextricably linked to the first ground, in that it relies upon error in the judge's assessment of the causative link between the offending and the applicant's psychiatric disorder. The applicant has apparently been successfully treated since entering custody. There was no sound basis upon which the judge could conclude that the psychiatric disorder was likely to persist or was resistant to treatment and therefore no sound basis upon which his Honour was required to reduce emphasis on general and specific deterrence because of a mental illness at the time of sentence : see Carlton v R [2008] NSWCCA 244 per Basten JA at [101].
60With respect to ground 3(a), the applicant contends that the existence or otherwise of a causal link between a psychiatric condition and an offence is separate and distinct from the question whether general deterrence should be moderated or eliminated. The applicant then maintains that the judge erred in failing to consider "the issue of the appropriateness of applying principles of general deterrence separately from his conclusion that the offender's moral culpability was not reduced by reason of his mental illness."
61This submission tends to ignore the policy reasons underlying a decreased emphasis on general deterrence, explained succinctly by Wood CJ at CL in Henry and set out at [58] above. Moral culpability for an offence is attenuated because some (albeit not all) psychiatric illnesses compromise an offender's ability to make rational decisions. It is that reduced moral culpability that correspondingly impacts upon the weight to be given to general deterrence. In addition, there is an inevitable interplay of the various factors. To the extent that there is no, or very little, causal link between a mental illness and an offence, the mental illness may nonetheless be important to considerations of community protection, rehabilitation or the need for treatment in the community : Engert at 8 ; R v Israil per Spigelman CJ at [24], agreeing with Malcolm CJ in Lauritsen v R at [48].
62It is not clear how, assuming that the judge did not err in his assessment of the causative link between the applicant's bipolar disorder and the offending, any reduced weight on general deterrence arose because of that (successfully treated) condition at the time of sentence. As for the applicant's prospects of rehabilitation, that is addressed under ground 5.
63I reject the submission that his Honour did not appreciate the severity of the applicant's symptoms of his bipolar disorder. His Honour said :-
It is reasonable to conclude, based upon consistent threads in the psychiatric opinion, that the offender suffered an Alcohol Abuse Disorder and Bipolar I (sic) Affective Disorder including a Major Depressive Disorder and mood changes. Bipolar I Disorder (sic) and Major Depression are serious mental disturbances. (italics not in original)
64The relevant and critical question was how, and to what extent, did those mental disturbances explain the applicant's offending, extending as it did from the purchase of the gun safe in the week prior to 30 May 2011, the creation of the "dirkstraun" email account while the applicant was on route to Australia from Chicago on 30 May, through to the alteration of the gun safe in June, the purchase of the balaclava and baseball bat on 16 July and culminating in the offence itself on 3 August. The explanation advanced through the medium of the psychiatric opinions, supported by the untested assertions of the applicant, was that the applicant's behaviour was unmotivated by anything other than a need for treatment, in other words, "a cry for help". The judge was entitled to reject that explanation and the applicant does not contend otherwise. Having done so, there was only the objective evidence of the applicant's planning and execution of a very daring and serious attempt at extortion. The fact that it was daring, or even deserving of the description "bizarre", does not establish the relevant causal link.
65The applicant's submission that the judge erred in finding that it was possible that his mood stabilised after entering custody because of cessation of alcohol use is qualified by this observation in the written submissions : "If this conclusion was to the effect that the improvement observed by Dr Westmore in the applicant's mental health by September 2012 was brought about by nothing more than a period of abstinence from alcohol abuse, then the finding is erroneous."
66The judge's reasons do not support that construction. The finding was that the applicant's stabilisation of mood may, to a significant extent, be attributable to cessation of alcohol use. There are a number of references throughout the judge's reasons to the marked improvement in the applicant's mental health after commencement of the appropriate medication (Risperidone) in custody. This was no more than an observation which was supported by the applicant's own statement to Dr Westmore.
67In summary, the applicant has not demonstrated that the sentencing discretion has miscarried. The judge's findings with respect to the causative link between the applicant's bipolar II disorder and the offending were reasonably open. There is no merit in grounds 1, 2 or 3.