11 In oral argument, Counsel for the appellant abandoned any reliance on these international instruments. He correctly conceded that none of the material which related to the general state of mental health facilities, national guidelines or international standards enlarged the appellant's common law rights. That is to say, it was accepted that the sentencing court's powers at common law enabled it to take into account the burden of imprisonment on a particular offender having regard to his or her personal circumstances and any relevant circumstances which prevailed within the correctional institution where the offender was detained. When considering the burden of imprisonment on an offender who requires psychiatric care, allowance may be made for the limited nature and quality of treatment available within our correctional institutions.[2] Ultimately, counsel for the appellant sought the admission into evidence only of material which specifically concerned the appellant.
12 Counsel argued that the new evidence was admissible in two ways. First, it was contended that the evidence should be considered by the Court in re-sentencing the offender because the original discretion was vitiated by error. Alternatively, it was submitted that the new material constitutes fresh evidence which shows the true significance of facts which were in existence at the time of sentence.[3]
Grounds alleging error
13 In an outline of argument filed by the appellant, ground 3 was abandoned. No oral or written submissions were advanced in support of ground 4. Accordingly, it is only necessary to deal with grounds 1, 2 and 2.1.
Ground 2.1
14 It is convenient to consider this ground first. In order to do so it is necessary to refer briefly to the conduct of the proceedings in the court below. The appellant's plea was conducted over two days. During the hearing on the first day, 17 June 2005, the appellant's mental condition was discussed at length. Psychiatric reports tendered on the appellant's behalf indicated that he had been diagnosed with paranoid schizophrenia, one report also assessed the appellant as suffering from polysubstance abuse and an anti-social personality disorder. The learned sentencing judge was evidently concerned about the appellant's mental health, and although neither party submitted that his Honour should do so, he requested that the appellant be assessed pursuant to section 90 of the Sentencing Act 1991 ('the Act') in order to ascertain his suitability for an order under section 93 of that Act.[4]
15 An assessment report dated 5 August 2005, by Dr Kate Roberts, was supplied to the court, and the hearing of the appellant's plea recommenced on 9 September 2005. Dr Robert's report stated, incorrectly, that it was requested 'pursuant to s.96 of the Sentencing Act.' The report did not expressly address the matters to which s.90 of the Act is directed and recommended, somewhat ambiguously, that the appellant required "a structured management plan with a containing environment where he can gain attention in various ways."
16 In a written outline of argument, the appellant sought to argue that the trial judge's sentencing discretion had been vitiated by the fact that he had not obtained the type of assessment report which he had ordered.[5] In oral argument, counsel for the appellant did not seek to press the point. It was not contended before this Court (nor was it contended on the plea) that an order under section 93 of the Act should have been made with respect to the appellant. That being so, the sentencing discretion of the learned sentencing judge could not have miscarried as a result of the failure of Dr Robert's report to comply with section 90 of the Act.
17 Further, by the time the report was provided to the Court the learned sentencing judge had decided that it was no longer needed. As it happens, another report pursuant to s 90 was ordered, when leave to appeal was granted in this matter on 24 February 2006. That report, prepared by Dr Debra Wood and filed with this Court on 14 June 2005, concluded that the appellant was not an appropriate candidate for an order under section 93 of the Act.
Grounds 1 and 2
18 Given the appellant's mental condition, the sentence imposed upon him was arguably a stern one in light of the applicable principles summarised in R v Tsiaras.[6] Of course, it does not follow that the sentence is manifestly excessive.[7] In my view, given the gravity of the appellant's offending, particularly the kidnapping and armed robbery of Mrs Lever, the sentences imposed by the learned trial judge cannot be said to be obviously excessive. Accordingly, ground 1 cannot be sustained.
19 In support of ground 2, the appellant submitted that the failure of the learned sentencing judge to give adequate weight to Tsiaras principles could be inferred simply from the length of the individual sentences, the non-parole period and the total effective sentence imposed. This submission should be rejected. In light of the gravity of the offending and its effect on the victims, the length of the sentences imposed on the appellant do not support the inference that general and specific deterrence were insufficiently moderated. In his reasons for sentence, the learned sentencing judge made it clear that, but for the need to moderate general deterrence, the appellant could have expected to serve a much longer period of incarceration.
20 No error has been demonstrated in the sentencing of the appellant in the court below. Accordingly, the appeal turns on whether the fresh evidence is otherwise admissible and, if so, whether that evidence indicates that a different sentence should now be passed.
The fresh evidence
21 The principles governing the admission of fresh evidence on an appeal against sentence were recently summarised in R v Duy Duc Nguyen as follows:[8]