On the basis of this material, Mr Boyce for the appellant submitted that evidence may be received by this Court of an illness suffered by a person who has been sentenced when such illness has become known only after the time of sentence so long as it can reasonably be concluded that the illness was in existence, albeit perhaps in a dormant state, prior to imposition of sentence. He relied on Bailey[1] and Eliasen[2]. Secondly, evidence of a relevant, pre-existing state of affairs may be admissible on appeal in order to avoid a miscarriage of justice even where an appellant (and the appellant's legal advisers) knew of the existence of the illness but did not raise it on the plea; see Knights[3] and R. v. Maniades[4].
12 On the basis of Dr Vine's two reports, Mr Boyce submits that the appellant continues to suffer from persecutory beliefs, believing that his life and lives of his family are at risk. He is currently prescribed an antipsychotic drug olanzapine, for his psychotic symptoms. It is argued that it appears that the offences occurred during a period when the appellant believed that he was under surveillance from others including the police. His beliefs are clearly delusional, although sincerely held by him. His current presentation is consistent with a delusional disorder that is one of the functional psychoses, although not as extreme as schizophrenia. Finally it is put that it is certainly possible that the appellant was experiencing some symptoms of a delusional disorder at the time of the commission of the offences.
13 On this basis, and supported by some further material from Dr Vine which was conveyed to us by counsel, Mr Southey for the Crown did not seek to contest that, at the time of sentence, the condition from which it is now clear that the appellant is suffering was present, but latent, at the time of sentencing.
14 It is apparent that the condition from which the appellant now suffers only truly manifested itself or came to the attention of health professionals since the date of sentence. There was in fact no reference to his suffering a delusional disorder on the plea, nor was there any reference to it in the report of Dr Christopher Wong which was tendered on the plea. It is argued that the appellant's condition, while not as extreme as schizophrenia, may still be relevant, in a general mitigatory sense, to the imposition of sentence; see R. v. Boxtel[5]; R. v. Smith[6]. Mr Boyce submitted that Dr Vine's reports provided evidence which was admissible and relevant in a mitigatory sense to the imposition of the appellant's sentence, and accordingly argued that the sentencing discretion was re-opened and that the appellant should be re-sentenced.
15 Mr Southey properly did not seek to challenge the view that the evidence was shown to be admissible, and also that the evidence established that service of a prison sentence was now shown to be more burdensome to the appellant, matters which were not within the knowledge of the sentencing judge at the time of sentence.
16 The evidence establishes that the appellant was indeed suffering from a delusional disorder in existence, but latent, when he was sentenced on 17 December. His beliefs, as explained by Dr Vine, are fixed and apparently unchallengeable, and involve a range of police, custodial and health staff, and are of such strength that he would prefer to starve rather than share his concerns, and would prefer to serve his entire sentence rather than expose these beliefs to scrutiny by a court. Dr Vine's view was that it is unlikely that he will be able to be returned to the prison in the foreseeable future, presumably, therefore, being required to be held in the Argyle Unit at the Thomas Embling Hospital. According to Dr Vine's last report, since his re-admission to the hospital on 31 August, he had continued to decline any food prepared or offered by staff at the Thomas Embling Hospital and his family continue to bring him food on a daily basis. We were informed in court this morning by Mr Boyce that the appellant maintains the view, and that he was expressly instructed to inform the Court of this, that the staff at the hospital are still attempting to kill the appellant.
17 It follows in my view in these circumstances that the delusional disorder suffered by the appellant is of such a nature that imprisonment will be a greater burden upon him, and that there is a risk of imprisonment having a significantly adverse effect on his health. The burden of serving a sentence is thus increased by reason of his disorder. It follows that the evidence of Dr Vine has been shown to be admissible[7] and that the sentencing discretion is reopened.
18 The question now becomes what sentence this Court should impose on the appellant. It is necessary to say at once that no error of any kind was said to have been present in the judge's sentencing reasons. The judge dealt with the appellant most sympathetically, accepting that in many respects the appellant's was a very sad case. There can be no conceivable claim of manifest excess, all matters relevant to mitigation of penalty were mentioned by the judge, and the sentence imposed by his Honour was both moderate and compassionate both in relation to head sentence and non-parole period. The judge was however particularly concerned that it was not possible to be particularly optimistic about rehabilitation, having regard to the appellant's past criminal history. His drug problem was known to be long-standing and he had been given many opportunities by courts in the past, all of which had come to nothing. The seriousness of the offences for which the appellant was sentenced was high and the impact on the victims of the three armed robberies and the robbery had to be given serious consideration.
19 As Callaway, J.A. pointed out in R. v. Izzard[8], mental illness is not solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion, is also a greater danger to the community.[9] In the present case, I am not persuaded that this Court should vary in any respect the individual sentences imposed on the 12 counts on 17 December 2004, nor the orders for cumulation. Accordingly, I would leave standing the head sentence of six years imposed by the judge. In so far as the non-parole period is concerned, notwithstanding that imprisonment will be a greater burden for the appellant by reason of his delusional disorder, protection of the community remains a serious and continuing concern in re-sentencing by this Court, having regard to the seriousness of the offences for which the appellant was sentenced, his prior criminal history, and the judge's reservations as to the appellant's potential for rehabilitation, which seems to me entirely justified. In the circumstances, the only variation I would now make to the sentence originally imposed by the judge would be to fix a non-parole period of three years, in place of the period fixed by the sentencing judge.
20 I would accordingly allow the appeal, solely for the purpose of reducing the non-parole period to three years.