The appellant's submission
(i) Effect of illness on moral culpability
17 Counsel for the appellant, Mr Boyce, did not rely on a direct causal link between Mr Ahmed's mental state and the offences for which he was sentenced. This was inevitable, in light of the expert evidence. He contended, however, that his Honour had not given sufficient weight to the broad effect of Mr Ahmed's damaging experiences in Somalia, and to his consequent mental condition, in reducing his moral culpability.
18 I do not accept that submission. His Honour referred to the fact that Mr Ahmed came from a country that was severely affected by civil war, that he was separated from his family, that he saw members of his family shot and joined rebel forces when he was very young and that he had been found by his family in a refugee camp, where he was ill with malaria. His Honour also discussed Mr Ahmed's symptoms and referred to Mr Joblin's diagnosis that Mr Ahmed was suffering from a serious and chronic case of post-traumatic stress disorder. Although his Honour did not explicitly state that these matters were relevant in assessing Mr Ahmed's moral culpability, I am satisfied that he took them into account, in a general way, as mitigating factors.
(ii) General and specific deterrence and the burden of imprisonment
19 Counsel for the appellant submitted that his Honour gave no or insufficient weight to the third, fourth and fifth principles in Tsiaras.[2] In particular it was said that his Honour did not take account of the extent to which the appellant's mental illness made his imprisonment more burdensome than would otherwise have been the case, consistently with R. v. Van Boxtel.[3] Nor did he consider whether the appellant's mental condition required that less weight be given to the sentencing objectives of general and specific deterrence. The appellant's counsel contended that his Honour had not considered these matters because he had treated Mr Ahmed's mental condition as "a reaction to his imprisonment" rather than as a pre-existing and severe post-traumatic stress disorder caused by his experiences as a young boy in Somalia.
20 It was submitted that this finding was not open to his Honour, in light of Mr Joblin's expert evidence about the nature of Mr Ahmed's mental condition. The appellant's counsel said that his Honour had erred by giving too much weight to the evidence of Mr Ahmed's sister. This evidence was to the effect that Mr Ahmed did not have any mental problems when he returned to Australia in 2004, although he sometimes had nightmares during which he screamed and jumped out of bed.
21 In response to this contention, counsel for the Crown submitted that his Honour's statement that Mr Ahmed's mental condition was "a reaction to his imprisonment" should be read in light of the preceding and following material in the sentencing remarks. The preceding material referred to the difficulties of managing Mr Ahmed's behaviour in prison. The statement that the offender's mental condition was "a reaction to his imprisonment" was simply a preface to the proposition that it did not cause him to commit the relevant offences, a conclusion supported by Mr Joblin's report. Counsel for the Crown also submitted that his Honour was justified in taking the view that Mr Ahmed's mental condition was largely the result of his imprisonment, in light of his sister's evidence that since his return from England he had been a responsible citizen who had lived with his family without causing any trouble.
Did the sentencing judge take insufficient account of the appellant's mental illness?
22 In his sentencing remarks his Honour made specific reference to Mr Joblin's report that Mr Ahmed was suffering from "severe and chronic post-traumatic stress disorder"; to the problems which prison authorities had had in managing him; to his attempted self-harm; to his need for hospital and psychiatric care and to the fact that he sometimes had aural hallucinations. However his Honour did not explicitly refer to the relevance of general or specific deterrence in sentencing a person suffering from a psychiatric condition, or to the burden of imprisonment upon him. In my view it would have been preferable for his Honour to explain precisely how he took account of the third, fourth and fifth principles in R. v. Tsiaras.[4]
23 Although his Honour failed to mention these matters, I am not convinced that that he failed to consider them, or gave them insufficient weight in sentencing the appellant, in light of the attention he paid to Mr Ahmed's mental condition and his sad history in Somalia. In the context in which it appears, I do not regard his statement that Mr Ahmed's mental condition was "a reaction to his imprisonment" as inconsistent with his Honour taking his mental condition into account in considering these matters. I also think that his Honour was entitled to give some weight to the evidence of Mr Ahmed's sister about the absence of symptoms other than nightmares, before Mr Ahmed was imprisoned. It would have been open to the defence to call Mr Joblin, so that this matter could be further explored. Although the case is close to the line, in my view there is a sufficient basis for inferring that Mr Ahmed's psychiatric condition was appropriately taken into account by his Honour, in reaching his instinctive synthesis as to the sentence to be imposed on the offender.
24 If I am wrong, however, it would be necessary to consider the sentence which this Court would impose if the sentence were to be vitiated by error, and the sentencing discretion re-opened.[5] That sentence must reflect the harsh and brutal nature of the false imprisonment and rape and the effect of these offences on the victim, which is described in his Honour's sentencing remarks. Mitigating factors include the appellant's guilty plea, the fact that he has not offended since these offences were committed, and the effect of his terrible experiences as a child in a war-torn country on his moral culpability.
25 The Court must also take account of the extent and nature of Mr Ahmed's current psychiatric condition, the extent to which that condition should affect the objectives of general and specific deterrence and the burden which imprisonment will impose upon him because of his mental state.
26 Mr Ahmed's mental state is discussed in a report prepared by Dr Ryan for the purpose of these proceedings. Despite Mr Ahmed having some anxiety about these proceedings, the report says that there is nothing to suggest that he has a major mood disorder, though "he has nothing to look forward to" and "feels empty". It says that he has features "consistent with post-traumatic stress disorder, past poly-substance abuse and significant disturbance of affect regulation and impulse control". It cautions that he will need regular psychiatric assessment of "his mood and self-harm ideation" in prison.
27 The report does not support the proposition that specific deterrence should be given little weight because of Mr Ahmed's condition. It should be given some weight in this case because of the offender's poor impulse control, particularly when he has consumed alcohol.
28 Nor is this a case, in my view, where an offender's psychiatric condition makes it inappropriate to give some weight to the objective of general deterrence. In R. v. Yaldiz, Batt, J.A. commented that: