R v Martin [2007] VSCA 291

Court of Appeal (Vic)|2007-12-11|Before: MAXWELL P, NETTLE and REDLICH JJA

CRIMINAL LAW - Sentencing - Manslaughter - Reckless conduct endangering life - Drug induced psychosis - Whether drug taking aggravated seriousness of offending - Whether applicant foresaw probable consequences of drug taking - Whether psychosis induced by illegal drug taking a mitigatory factor.

CRIMINAL LAW - Sentencing - Manifest excess - Culpable driving.

1 This appeal raises an important question about sentencing for offences committed in a state of drug-induced psychosis. The applicant drove for more than 50 kilometres on the wrong side of the Western Highway, endangering a number of drivers and eventually colliding with a small sedan, instantly killing the driver. At the time, he was floridly psychotic as a result of drug-taking.

2 The applicant was acquitted of murder but convicted of manslaughter, for which he was sentenced to 12 years' imprisonment. He was convicted on four counts of reckless conduct endangering life, for each of which he was sentenced to two years' imprisonment. He was acquitted of six other counts of reckless conduct endangering life. The applicant was also convicted on one count of theft, for which he was sentenced to one year's imprisonment. The sentencing judge ordered that six months of each of the terms of imprisonment imposed on the counts of reckless conduct endangering life be served cumulatively on the sentence imposed for manslaughter, making a total effective sentence of 14 years' imprisonment. A non-parole period of 10 years was fixed.

3 The judge rejected a submission that the applicant's moral culpability was lowered by the fact that he was psychotic at the time he committed the offences. His Honour considered that, to the contrary, the seriousness of the offending was aggravated by

the fact that you voluntarily took illegal drugs such that they caused you to become dangerously psychotic in circumstances where you knew or ought to have known that that was a likely result ...[1]

The appeal primarily concerns the validity of these conclusions.

4 The application for leave to appeal against sentence advances the following grounds:

(a) the individual sentences, the total effective sentence and the non-parole period are manifestly excessive;

(b) the judge erred in rejecting the submission that, because the applicant was psychotic at the time of committing the offences, his moral culpability was lowered;

(c) the judge erred in finding that, because the applicant's psychotic state was self-induced, his mental condition could not mitigate punishment; and

(d) the judge erred in finding that the applicant's voluntarily ingestion of cannabis in the months prior to the offending was, in the circumstances, an aggravating factor upon sentence.

5 We deal first with the grounds concerning the applicant's psychotic state.

The applicant's condition at the time of the offending

6 Before the applicant's trial, he was examined (at the request of the Office of Public Prosecutions) by Dr Andrew Carroll, a consultant forensic psychiatrist.[2] In the event, Dr Carroll was called as a witness for the defence. His opinion was that, at the time of the driving which caused the death, the applicant was

in the grip of an acute psychotic illness, which had essentially been precipitated by and maintained by his ongoing use of cannabis.

... It is clear that his psychotic symptoms were intimately linked in a causal fashion with his ... behaviours.

Dr Carroll explained the causal link in these terms:

... [I]n my opinion his mental state was similar from the time of his first contact with police when walking along the highway, right up until the time of his eventual apprehension. It is clear that at this time he was acutely psychotic, holding various delusional beliefs of a persecutory nature. Whilst their precise content fluctuated somewhat, the core of his delusional system appears to have been that the human race had been replaced by malevolent aliens and this in some way related to the close transit of Mars. This alien invasion also, he believed, had resulted in the likely death of family members and hence he had a strong drive to return to Adelaide. He was also suffering with auditory hallucinations (hearing voices) which he attributed to aliens. In addition his mood was disturbed with episodes of suicidal despair intermingled with anxiety and even elation.

It is not difficult to see how the alleged offences relating to interactions with the police relate to his delusional beliefs that the police were in fact persecuting aliens_. He had the belief that he was in fact interacting with malevolent aliens rather than with police at the relevant time and so did not really know the nature and quality of his conduct, nor was he able to reflect on the wrongfulness of such conduct with any real degree of sense._

With respect to the near collisions with other vehicles and the actual collision with that of the deceased, he admitted in interview with me that he did in fact develop the fluctuating idea that he should deliberately collide with vehicles in order to at least "take out" some of the aliens, even if this resulted in his own death, which at the time he felt was likely. Hence ... it is clear that he did not truly know the nature and conduct (sic) of his actions since from his subjective point of view he was intending to collide with a vehicle driven by an alien rather than one driven by an innocent member of the public. As a result of this delusional belief in my opinion he was unable to reason as to the wrongfulness of such actions with a moderate degree of sense and composure.[3]

8 Dr Carroll pointed out that psychosis does not remove the ability to plan and carry out "goal-directed actions". In the psychotic state of mind

one can be fully orientated to time, fully orientated to place, fully capable of persistent goal-directed action, but nevertheless be working within a frame of reference which is completely abnormal.

Under cross-examination by the Crown prosecutor, Dr Carroll confirmed that

... at all times [the applicant] was aware of the fact that ... a head-on collision with another vehicle may well result in both deaths. ... there's nothing in his psychosis that would have prevented him from knowing the normal knowledge that we all have that ... collisions with vehicles can result in death.

Critically, however, the applicant's perception was "that the drivers on the freeway were not persons in the normal sense but in fact were either aliens or had been taken over by aliens". As Dr Carroll said:

From Mr Martin's frame of reference, although the people around him were on one level persons they were something quite different as well. They had been taken over on some fundamental level by some malevolent force, and so to call them just persons I think would be an inadequate description of Mr Martin's subjective sense of what they were.

9 A somewhat different view was taken by Dr Alan Jager, who prepared a report for the applicant's solicitors. The relevant part of Dr Jager's report stated:

5. The Cannabis Induced Pyschotic Disorder experienced by the accused at the time of the alleged offence constituted a mental impairment. That impairment affected the accused's sensory perception (he heard voices) and the content of his thought (he held false persecutory beliefs and false beliefs that the world was about to end).

6. In my opinion he understood what he was doing at the time of driving on the wrong side of the road. Did he know it was wrong? It is my opinion that he intellectually knew that driving his car on the wrong side of the road was against the law. That is suggested by his answer to Questions 268, 269 and 270 where he stated "me being stupid. ... irresponsible which is - involves a few of use, yeah, and - but, yeah, I - I - I - I deliberately clipped the driver. ... Well, not deliberately. It was an accident. I - I - I was - I was wrong." And further at Question 458 where he states "Yeah. That's why I tried to just, at stages, snap out of my stupid mental state and - and just get to where I was going. I got caught up in the atmosphere." At a moral level however, he did not know that the conduct was wrong. In answer to Question 459 "Rod, did you hit that car to stop the police from chasing you?" He answered "I threatened that car to try and let people know that I was desperate to get back to see my family. I didn't want to be followed back there. I just needed to get back there."

10 In final address, the prosecutor submitted that the applicant should be convicted of reckless murder.

... He knew that he would kill someone if he hit the [deceased's] car. He was on that side of the road to run these cars off, get them out of the way, to cause chaos to the people following him, and to stop them from stopping him on his journey to Adelaide.

It does not matter ... why he is heading to Adelaide. The fact is he knows that he is going to kill if he crashes that car into those people. And he knew that at the time that he hit [the deceased's] car.

11 Defence counsel argued that the applicant's behaviour "was the product of a delusional belief system generated by psychosis." In consequence, he argued:

the applicant did not perceive that the people around him were real;
the applicant did not intend the act that caused death; and
the applicant's capacity to perceive the probable consequences of his actions was "profoundly disturbed."

12 Defence counsel submitted to the jury that they should acquit the applicant of murder because they could not be satisfied beyond reasonable doubt that he had known or foreseen that his actions would probably cause death or really serious injury.[4] In relation to the alternative count of manslaughter by unlawful and dangerous act, counsel conceded that, because manslaughter did not require the state of mind required for murder, "it might be appropriate to return a verdict of guilty with respect to manslaughter rather than murder."

13 In his charge, the trial judge noted that it was common ground between the Crown and the defence that the applicant was psychotic at the time the events occurred. His Honour then directed the jury that the psychosis was irrelevant to their task, except in relation to the mental element in reckless murder, that is, whether the applicant knew or foresaw that his actions would probably cause death or really serious injury. He specifically directed that the psychosis was not relevant to the question of whether the act was conscious, voluntary and deliberate and therefore could not affect the jury's decision on the issue of manslaughter.

14 The acquittal on the count of reckless murder signifies that the jury were not satisfied that the applicant knew or foresaw that his actions would probably cause death or really serious injury. The conviction on manslaughter, on the other hand, signifies that the jury were satisfied that his conduct was conscious, voluntary and deliberate.[5] The defence concession of manslaughter was doubtless very significant.

Moral culpability distinguished from legal responsibility

15 In R v Tsiaras, this Court said that serious psychiatric illness not amounting to insanity

may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility.[6]

That proposition was reaffirmed in the recent decision in R v Verdins[7] (with the clarification that it can apply in any case of mental disorder or abnormality or impairment of mental function).

16 The Court in Verdins cited the following statement from the New South Wales Court of Criminal Appeal in R v Israil:

To the extent that mental illness explains the offence ... then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. [8]

... [M]oral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence ..., in the sense that the psychiatric condition must have contributed to the commission of the offence.[9]

17 Dr Carroll's unchallenged evidence was that, at the time of the offending, the applicant:

was in the grip of an acute psychotic illness; and
did not appreciate the wrongfulness of his actions,

and that there was a direct causal connection between the psychosis and his offending. (Because it was self-induced psychosis, the applicant could not rely on the defence of mental impairment). [10]

18 The trial judge held that the psychosis was not a mitigating factor at all. His Honour said:

The principle which might permit the mitigation of condign punishment because of serious psychiatric illness at the time of the commission of an offence depends upon that illness being beyond the control of the person being sentenced. Here, the psychosis from which you suffered was induced by your own illegal act. Thus the principle contended for by your counsel has no application. Your moral culpability for the consequences of your actions is not lowered by reason of your having been psychotic at the time you performed them.[11]

19 We respectfully agree with his Honour's conclusion that, in the circumstances of this case, the applicant's moral culpability is not reduced by reason of his psychotic state. We would not, however, endorse the general proposition which underpins this conclusion - that psychosis (or other mental illness) which is drug induced can never be a mitigating factor because it is the result of the offender's own (illegal) act.

20 Cases can be imagined where the offender's psychotic state is drug-induced but is nevertheless treated as lessening the offender's culpability. For example, the offender might have had no awareness - because of a lack of prior knowledge or experience - that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. Again - as in the case of Sebalj[12] - the psychosis might occur in the course of the offender's attempts to withdraw from the use of the drug which was, nevertheless, the cause of the psychosis. In Sebalj, the drug-induced psychosis was seen as substantially reducing the offender's level of culpability for what he did while under the influence of paranoid delusions.

21 As these examples illustrate, the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. There is an obvious parallel in this respect with sentencing for offences committed while under the influence of alcohol, where the concept of "reckless intoxication" has been developed.

22 One of the leading authorities is Coleman,[13] in which Hunt CJ at CL said:

The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication [ie at the time of the offending] would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character.

Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate.[14]

23 Applying this analysis in Fletcher-Jones the New South Wales Court of Criminal Appeal concluded that it was not out of character for the offender to have become intoxicated

as he admitted he had a drinking problem and he knew what effect alcohol could have on him. [15]

In addition, he had deliberately set out to get drunk, and continued drinking even when asked by his wife to desist. In those circumstances, McInerney J said, the voluntary ingestion of alcohol should be regarded as an aggravating factor rather than a mitigating factor. In the event, however, the accused's intoxication was not treated as an aggravating factor because he had ceased drinking for a period of about six months before the subject offending.[16]

24 In Redenbach,[17] the applicant had pleaded guilty to murder. On appeal he argued that the sentencing judge had not sufficiently taken into account that, at the time of the killing he was suffering from what was referred to as "amphetamine psychosis". The Court of Criminal Appeal said:

Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence. Where the perpetrator of a drunken assault set up his drunkenness in mitigation, the Court said:

But the day is long past when somebody can come along and say 'I know I have committed these offences, but I was full of drink'. If the drink is induced by himself, then there is no answer at all.[18]

And an assailant who claimed to have been in a state of drug intoxication was told that his self-ingestion of drugs did not mitigate his offences: DPP v Tucker and Lewis.[19] Where, on the other hand, the court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered.[20] So it may be said that drug addiction which contributed to an offence but which itself resulted from the medicinal use of drugs goes in mitigation.[21]

25 In The Queen v Walker, the applicant had pleaded guilty to aggravated burglary and recklessly causing serious injury. Complaint was made about the following statement by the sentencing judge:

It was put that your being affected by alcohol was mitigatory in the context that the crime was out of character for both of you and unlikely to be repeated. That principle would not seem to be applicable in the case of people who habitually drink to excess, as appears to have been the case with both of you at least prior to the commission of the offences and who have prior convictions, albeit for less serious offences. The effect of the alcohol would have been to render the attacks even more frightening to the victims than if you had been sober.[22]

26 By majority, the Court of Appeal rejected the complaint, holding that there was

no support in the authorities for a proposition that intoxication is a matter which will generally go in mitigation, let alone a proposition that it will always do so ...[23]

Smith AJA, in dissent, cited the following passage from Fox and Freiberg:

Alcohol is well known as a disinhibitor. Where its intake has led to a diminution of self-control, its contribution to the crime will be regarded as mitigatory provided that the court is satisfied that the behaviour is out of character and unlikely to be repeated. The maximum mitigatory effect of such a plea will usually occur where the offender otherwise has a blameless character and has no prior convictions. A lack of premeditation is, of course, a mitigatory factor in its own right. Though intoxication per se is no defence, like mental abnormality it may be regarded as affecting the degree of culpability for the purpose of sentencing.[24]

Having referred to the passage from Coleman set out above,[25] Smith AJA said:

Thus intoxication may be an aggravating consideration where, for example, a man became recklessly drunk in the sense that he became drunk well aware that he was likely to become violent if drunk.[26]

27 In Wright,[27] the concept of reckless intoxication was applied to drug-induced psychosis. The offender had pleaded guilty to armed robbery, committed while he was in a psychotic state caused by his failure to take medication, combined with the effects of marijuana and amphetamines. The Court of Criminal Appeal held that the sentencing judge had erred in treating the existence of the psychotic state as a mitigating factor. Hunt CJ at CL said that the offender had

quite deliberately ... left home and his pills behind him and had either deliberately or recklessly become intoxicated by drugs, thereby bringing on the psychotic state which the doctors had diagnosed. He had been addicted to drugs for some years.

Rather than mitigation, this conduct was really a matter in aggravation, but it is unnecessary to determine whether it was. It certainly was not a matter in mitigation. The judge was, in my view, in error in treating the psychotic state and the intoxication at the time of the offence as a matter which did go to mitigation. The circumstances of this crime, together with the respondent's criminal history, also demonstrated that, by his recklessness in bringing on these psychotic episodes, he is a continuing danger to the community, a matter which would in any event reduce - if not eradicate - the mitigation which would otherwise be given for the respondent's mental condition.[28]

28 The New South Wales Court of Criminal Appeal addressed this issue again in R v Gagalowicz.[29] The offender was convicted of manslaughter. He was a long-term user of amphetamines, which caused him to have paranoid and delusional experiences. In the months preceding the killing, the offender was detained as an involuntary patient under the mental health legislation, on the ground that he was suffering from a severe mental disturbance with auditory hallucinations. He was likewise in a drug-induced psychotic state when he killed the deceased. The trial judge concluded that the psychosis

substantially impaired his capacity to understand events, his judgment about the rightness or wrongness of what he was doing and his ability to control himself.[30]

29 The Court of Criminal Appeal noted that, following the offender's release from the psychiatric hospital, he had had insight into the effect of amphetamine use upon him. He did not, however, take full advantage of the opportunity to address his addiction. The Court said:

We accept that his Honour was entitled to find that, notwithstanding the respondent was aware that his use of amphetamine could result in psychosis, he did not appreciate that it might lead to an act of violence to any person. But such a finding was not mitigatory of the respondent's culpability for the killing. Had the respondent the realisation that one of the effects of his use of drugs might have been that he would act violently toward some other person, this would have been a matter of serious aggravation.[31]

30 Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.

The applicant's history of drug taking and psychosis

31 At the plea hearing, the prosecutor tendered, without objection, a written opinion from Dr Brian McKenny, a specialist in emergency psychiatry.[32] Dr McKenny had previously been employed as a staff specialist in Brentwood Ward, a psychiatric intensive care facility at Glenside Hospital, and had been responsible for the applicant's care when he was in that ward.

32 In his written report, Dr McKenny noted that the applicant had been admitted to Glenside Hospital on 15 separate occasions. In the late 1990s the applicant had been

brought to the psychiatric intensive care ward because of difficulties in managing his aggressive and agitated behaviour and the co-existent risk of suicide and self harm. It is noteworthy in this period that Mr Martin would improve significantly in his mental state over 4-7 days when abstinent from marijuana and/or amphetamines.

In my period as Consultant Psychiatrist at the Intensive Care Ward (November 1999-May 2002), Mr Martin was interviewed by me on multiple occasions. The admissions were again precipitated by substance induced psychosis. It was difficult clinically to disentangle the respective roles of cannabis and amphetamines as aetiological agents. His behaviour prior to hospitalisation often drew the attention of police who would take him to hospital for assessment and treatment. At times Mr Martin would self present in an agitated and suicidal state whilst psychotic.

Mr Martin's behaviour in hospital intensive care was memorable for the irritability and hostility he displayed towards medical and nursing staff. He was often secluded and placed in isolation due to his aggressive, antisocial and unpleasant interactions with staff. In interviews with Mr Martin, I clearly recall his menacing, contemptuous manner to me and my staff. In particular, when [I] explained on multiple occasions the necessity for him to stop using illicit substances he was uniformly dismissive.[33]

33 Dr McKenny emphasised the applicant's resistance to such warnings:

I personally informed Mr Martin on multiple occasions as did my staff that his continued use of illicit substances were (sic) initiating and perpetuating these episodes of mental illness and that he did not have an underlying diagnosis of a schizophrenia or bipolar disorder. My memory of these conversations is that Mr Martin arrogantly dismissed this advice and gave me no impression that he would change his behaviour.

Dr McKenny was not cross-examined. Defence counsel conceded the accuracy of Dr McKenny's account of his conversations with the applicant.

What is unusual in the case of Mr Martin is the absence of any mental illness unless he abused substances. What is also extraordinary is the number of admissions that Mr Martin had to hospital often requiring intensive care services under the influence of these illicit substances. He was advised, counselled and given treatment for his temporary illnesses yet he continued to return to these behaviours despite the obvious risks both to himself and others. The seriousness of his behaviour was explained to Mr Martin, yet he displayed a reckless disregard for the repeated unambiguous medical advice made to him.[34]

35 By November 2001 Dr McKenny and the treating team were -

seriously concerned about the recurrent admissions by Mr Martin to our hospital, often with preceding history of danger to himself ... or to others (violent threatening behaviour requiring seclusion in hospital).

As a result, Dr McKenny took the unprecedented step of writing to the South Australian Coroners Department. He did so because of the applicant's "lack of willingness to take personal responsibility in addressing his problem", and because he believed that the applicant "posed a significant risk to the community at large". The letter said:

We have significant concern about Mr Martin's long term safety and the risk that he poses to the community at large. At the time of discharge there was no evidence of mental illness other than a chronic personality structure of being 'antisocial'. Should Mr Martin use further illicit drugs, particularly amphetamines, then he is extremely likely to become psychotic and at such times poses a significant risk to himself and others.

We do not foresee an immediate danger and feel that ongoing depot antipsychotic will reduce the risk of further psychotic episodes.

There is however significant concern for the safety of Mr Martin, the general public and staff involved in his care should he continue to use amphetamines. This has been explained to Mr Martin and he understands the potential consequences to his health and others safety should he continue to use illicit drugs. [35]

36 The psychiatric history attached to the letter recorded successive admissions to hospital:

in March 1996, where the applicant was noted to be "aggressive/ threatening". The record noted: "Substance abuse - THC/ amphetamines".
in July 1997, where he was noted to be depressed, suicidal and aggressive. The record noted: "Substance use - THC/ amphetamines".
in May 2000, where he was noted as displaying "marked irritability" and "threatening behaviour" and "frequent hostility." The record noted 'polysubstance abuse'.
later in May 2000, when he was "increasingly agitated and irritable" and was "consuming THC" in hospital;
in the period March - May 2001, where the record notes:

Command hallucinations to kill people, paranoia re being pursued by drug dealers. Had been carrying a knife and axe.

The most likely explanation for Roderick's longitudinal psychiatric picture is:

Substance Induced Psychotic Disorder (Amphetamines) with Hallucinations: onset during intoxication.
Schizoaffective Disorder cannot be completely excluded - however all of Roderick's presentations have been in the context of recent amphetamine use and have ceased within days of abstinence.
Antisocial Personality Disorder.

It can be anticipated that if Roderick uses amphetamines again he will become psychotic and will require inpatient treatment.[36]

38 In relation to the period leading up to the offending, Dr McKenny noted (by reference to a report by Dr Sundram, prepared for the defence): [37]

Mr Martin lived on the streets for much of 2003 using cannabis although the usage was not heavy and there are conflicting reports on his amphetamine use at that time. Dr Sundram goes on to report that Mr Martin presented at the Royal Adelaide Hospital with paranoid persecutory ideation at this time and that he had a variety of psychotic symptoms prior to his move to Melbourne in July 2003. I believe that it is highly improbable that Mr Martin was floridly psychotic for that long duration from March 2003-July 2003 because his acute psychosis would have drawn him to the attention of police or others in the community. Therefore it is likely that he had fluctuating episodes of psychotic symptoms with intermittent periods of being free of psychosis. This is consistent with his history over many months and years.

Dr McKenny then expressed the following opinion about the applicant's degree of insight into the effect which marijuana had on him:

[H]e would have been well aware of his psychotic symptoms fluctuating as he dosed himself with marijuana throughout this period. It is also important to note that he would have had many opportunities not to take further cannabis. Cannabis is not a highly addictive substance compared to other illicit substances and people commonly vary their dose according to circumstance.

It is reasonable in my view to presume that Mr Martin was aware of what he was doing when ingesting repeated doses of cannabis. I believe that Mr Martin had the insight and intellectual functioning to be aware that what he was consuming had a high degree of likelihood of further behavioural disturbance and therefore risk to himself and to the community.[38]

As we have pointed out, Dr McKenny was not cross-examined.

39 Of the critical period leading up to the fatal driving, Dr Carroll reported:

For at least several months leading up to July 2003 he describes having vague persecutory ideas such as having a sense that other people knew what he was thinking. He also describes intermittently hearing voices of people talking about him. He said that he even stopped attending day centres for showers because of these paranoid beliefs and hallucinations. Throughout this time he was continuing to use cannabis most days and amphetamine on an intermittent basis.

He says that in April 2003 he ended up in an intensive care unit after taking an overdose of the antipsychotic quetiapine. He says that following this admission the hallucinations went away but that they returned almost immediately as soon as he started smoking cannabis after discharge.[39]

40 The applicant gave Dr Jager a similar account of the period March - July 2003. According to Dr Jager's report the applicant said

that he last used amphetamines on 11/03/03, on the day of the funeral of a friend. Two days later he overdosed on Quetiapine, another antipsychotic medication he had been prescribed. He was admitted to hospital and discharged three days later. By that time his psychosis had resolved. He resumed smoking marijuana and resumed hearing voices and at times thoughts of people trying to get him. He continued using marijuana daily and experienced voices saying things such as "What's he doing now? Shall we follow him?" Sometimes he thought that street people were plotting to get him. In the past these persecutory delusions led him to going to bed with knives taped to his hands.[40]

41 The judge referred to this history in his sentencing reasons, and continued:

The fact that you have been psychosis-free since shortly after your arrest in July 2003 confirms the opinion of Dr McKenny as to the aetiology of your problem and demonstrates beyond doubt that had you not ingested illegal drugs shortly prior to committing these offences they would not have occurred and, in particular, Mr Turner would still be alive.[41]

His Honour proceeded to explain why he considered the self-induced psychosis to be an aggravating factor:

Whilst you were undoubtedly psychotic at the time you committed these offences that psychosis was induced by your voluntary ingestion of illegal drugs. Further, as the evidence of Dr McKenny demonstrates, you were well aware that your behaviour in taking those drugs exposed you to a risk of becoming psychotic such that you would be a danger to yourself or others. Your conduct was not only predictable but was, in effect, predicted by those treating you in Adelaide two or more years before these events occurred. Your failure to heed the warnings given to you so that you persisted in illegal drug taking, was a direct cause of your committing these offences. As such, the effect of that drug-taking namely your psychosis cannot be relied upon by you as a factor which ought to mitigate your punishment. Rather, in the circumstances of this case, the fact that you voluntarily took illegal drugs such that they caused you to become dangerously psychotic in circumstances where you knew or ought to have known that that was a likely result is an aggravating factor.[42]

the consequences of cannabis use were not predictable as they might have been in the case of amphetamine abuse. Indeed the psychiatric opinion is that what occurred was atypical ...

The expert evidence before the Court provided some support for this submission. For example, Dr Carroll rejected a suggestion that the persecutory beliefs which the applicant had at the time of the offending were no different from anything which was recorded as having happened to him in the previous 10 years. Dr Carroll said, 'the psychopathology that he describes is quite different.' What made the difference, according to Dr Carroll, was

a sudden crystallisation of a ... complex delusional system ... involving alien invasion.

What's not appeared before is the more bizarre delusional beliefs.

43 There had been no reference to aliens in any of the records of earlier psychotic episodes. When asked by the trial judge whether this was a matter of any significance, Dr Carroll made two points:

First of all psychosis is not such a simple illness that we can expect it to present in an identical fashion each time a person relapses or has an episode. The second relevant point is that most of the admissions in Adelaide seem to be fuelled by amphetamines, and amphetamine intoxication psychoses are generally characterised by irritability, persecutory ideas and hearing voices, which is exactly the pattern. It seemed that with respect to the psychosis in July 2003 this was a more protracted episode essentially triggered by and maintained by cannabis usage, and so although both were linked with illicit drug use, the actual drug involved was different, and it's not terribly surprising that the psychopathological manifestations differed somewhat.[43]

When pressed, Dr Carroll acknowledged that the applicant had been a chronic cannabis user in Adelaide as well, so "it was a mixture of the two".[44]

44 Associate Professor Sundram had prepared a report at the request of the applicant's solicitors. Dr Sundram said he was "at a loss" to understand the aetiology of the psychotic episode

... as it is not typical or consistent with cannabis induced psychotic disorders. It is also completely atypical of Mr Martin's experience with cannabis. Namely, no previous unambiguous purely cannabis induced psychotic episodes including minimal unpleasant experiences and no significant increase in dose or change in route of administration.

Dr Sundram considered that the psychotic phenomenology described by the applicant were 'much more consistent with an amphetamine induced psychosis.'

45 In a report prepared at the request of the sentencing judge, Dr Debra Wood of Forensicare[45] said that she shared Associate Professor Sundram's concerns

about the atypicality of the reported relationship between Mr Martin's psychotic symptoms and his use of amphetamines and cannabis. It is unclear to me whether or not Mr Martin actually used amphetamines between March 2003 and July 2003 (as reported by Dr Carroll); certainly he did not report any such use to me.[46] Thus, either Mr Martin did use amphetamines during that period but this information has been lost in the mists of time, or alternatively his prior amphetamine use may have had a 'priming' effect, such that quantities of cannabis alone could subsequently precipitate and maintain psychotic symptoms. I am similarly at a loss to explain the fulminant nature of Mr Martin's psychosis given the absence of a reported change in the type, amount, or frequency of his cannabis consumption in the lead-up to his offence.

46 Under cross-examination at the trial, the applicant acknowledged having been told on one occasion that his drug-taking was causing psychosis. He said that, at the time, he had not believed what the psychiatrist said. He said:

I was never warned that if I smoked marijuana I would have voices. I was warned that if I was taking illicit drugs [such] as amphetamines I would have voices, and I remember that on one definite occasion. Never with marijuana.

It was put to the applicant that he had presented at hospital on at least one occasion with marijuana as the source of his delusions, but he denied it.

47 Under cross-examination, the applicant maintained that the delusions which he experienced on this occasion were not the same as those he had experienced before some of his earlier hospital admissions. It was pointed out to him that, on previous occasions when he had had such feelings, he had been able to admit himself to hospital, and he was asked why he had not done so on this occasion:

I wasn't looking at the familiarity of - of "Look, I've been through this before", you don't have those thoughts when you're having psychosis, "Oh this is what's happening and I know why it's happening". You just don't question it. It's taking over your mind and it's consuming you. You don't sit back and go, "Oh hang on, I've experienced this last week, or two months ago or a year ago; I remember having these exact same thoughts." You just do not have that. If you had that ability this wouldn't have taken place. I would have been able to stop and say, "Oh look, this - you know, I've gone through this before, I should understand this." You do not question it. You can't question it.

When Dr Carroll was cross-examined, he confirmed that, at the time of the offending, the applicant was at

a point in the severity of [the] psychotic episode where insight is completely lost and the ... subjective notion of being ill simply isn't present.

48 It may be accepted that the delusions which the applicant was experiencing from the time of his first encounter with the police until the fatal collision were different in content and severity from any which he had previously experienced. The expert evidence also indicates that his psychotic state was atypical for cannabis-induced psychotic disorder. Importantly, however, Dr Wood said that his prior amphetamine use may have had a "priming" effect. The applicant told Dr Sundram that

a pattern of heavy daily intravenous amphetamine [use] was established in 1999/2000 and continued until his friend's death in March 2003. Mr Martin stated to me that it was the introduction of amphetamines that resulted in a multiplicity of psychotic symptoms, including auditory hallucinations, paranoid persecutory delusions and ideas of reference.

49 As a result of the applicant's multiple experiences of drug-induced psychosis, he was well aware by 2003 that, when he took drugs, he experienced delusions and hallucinations, often of a paranoid and persecutory nature. The decision to resume drug-taking after each successive episode had subsided was a choice the applicant made, in the knowledge that so doing was likely to produce - once again - a delusional state. He knew, in other words, that he was likely to lose rational control over what he was doing. On this view, accepting that he had not previously experienced delusions of such a nature and severity, his conduct in bringing on further psychosis by renewed drug taking was reckless - reckless as to the consequences of the loss of rational control, however serious they might be. It hardly avails the applicant in these circumstances to plead, "This was a different type of madness from anything which my drug-taking had previously precipitated".

50 Moreover, the applicant had been warned, repeatedly, that if he consumed illicit drugs he was likely to become psychotic, and would then be a danger to himself and to others. Given the frequency of the psychotic episodes described in the psychiatric history, the applicant could not have failed to appreciate - at least once the psychosis abated following each successive hospitalisation - that this was so. To continue to consume any of the drugs which he had been taking during the period of the earlier psychoses was an act of recklessness, done in the knowledge likelihood that there was a real risk that by so doing he would become psychotic and dangerous.

51 The accounts which the applicant himself gave to the psychiatrists of the period March - July 2003 serve only to reinforce these views. Thus:

after release from hospital in March (or April) 2003, he "resumed smoking marijuana and resumed hearing voices and at times thought of people trying to get him";[47]
for several months up to July, he was using cannabis most days and amphetamine on an intermittent basis, and was experiencing "paranoid beliefs and hallucinations" and "persecutory ideas";[48]
when he presented to the Royal Adelaide Hospital in early July, seeking treatment for a hernia, he was "experiencing paranoid persecutory ideation ... relating to most people within his environment."[49]

52 As Dr McKenny says, the applicant would have been "well aware of his psychotic symptoms fluctuating as he dosed himself with marijuana throughout this period." It is highly significant that, as Dr McKenny points out, cannabis is not highly addictive and the applicant "would have had many opportunities not to take further cannabis." Given Dr McKenny's first-hand knowledge of the applicant and his psychotic episodes over a number of years, the judge was entitled to give great weight to Dr McKenny's unchallenged opinion that the applicant

had the insight and intellectual functioning to be aware that what he was consuming had a high degree of likelihood of further behavioural disturbance and therefore risk to himself and to the community.

53 For these reasons, we agree with the sentencing judge that the applicant's drug-induced psychosis was an aggravating factor. The contention that his self-induced psychotic state was a mitigating factor cannot be sustained. His moral culpability is the greater because of his foreknowledge of the likely consequences of his continued drug-taking, and his decision to continue doing so, even when he was experiencing paranoid delusions. In this sense, there is an important element of deliberateness or premeditation about the course of conduct on which the applicant embarked, which ultimately caused the death of an innocent man.

54 In support of the submission that the sentence imposed was manifestly excessive, counsel for the applicant drew attention to four relevant decisions, each concerned with sentencing for culpable driving where the driver, under the influence of alcohol, drove on the wrong side of the road and caused a fatality. Counsel for the respondent conceded that it would be useful to undertake such a comparison. Reference is made to s 318(2)(a) of the Crimes Act, under which a person drives a motor vehicle culpably if he/she drives the motor vehicle

recklessly, that is to say, if he/she consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his/her driving ...

The offender drove on the wrong side of the freeway for 4.5 kilometres at speeds of up to 100 kilometres an hour. His blood alcohol concentration was 0.177. He had prior convictions for alcohol-related violence. He was sentenced to seven years' imprisonment on the count of culpable driving; three years on each of 10 counts of reckless conduct endangering life; three years on each of two counts of recklessly causing serious injury; and one year on each of five counts of recklessly causing injury. With cumulation, the total effective sentence was nine years, and the non-parole period was fixed at seven years.

The offender had a blood alcohol concentration of .243. Having entered the freeway the wrong way, he drove for 5.6 kilometres after first encountering oncoming vehicles, before the fatal collision. He was sentenced to five and a half years' imprisonment on the count of culpable driving; two and a half years on a count of recklessly causing serious injury; and six months on each of two counts of reckless conduct endangering life. With cumulation, the total effective sentence was seven and a half years, and the non-parole period was fixed at five years.

The offender drove the wrong way down the Eastern Freeway. His blood alcohol concentration was 0.181. He was aware before he drove that he was likely to become unfit to drive because of the alcohol he was drinking. He had, and knew that he had, an alcohol problem. He had three previous convictions for driving with excessive alcohol in his blood (respectively .088, .104 and .095). Vincent JA described his culpability as "extremely high". The trial judge had sentenced him to seven years for culpable driving; two years for reckless conduct endangering life; and one and a half years for negligently causing serious injury. The total effective sentence was seven and a half years, with a non-parole period of five years. On appeal, and making a discount for double jeopardy, the Court of Appeal imposed a total effective sentence of eight and a half years, with a non-parole period of six and a half years.

The offender drove with a blood alcohol concentration of between .086 and .133. He had two prior convictions for exceeding the blood alcohol limit. The most significant mitigating factor was that he himself became a paraplegic as a result of the accident, such that imprisonment was a particular burden to him. He was sentenced to four years' imprisonment for culpable driving and one year for negligently causing serious injury. The total effective sentence was four years and four months, with a non-parole period of one year and six months. The Court of Appeal rejected his submission that the sentence was manifestly excessive.

56 To this list we would add two further instances of culpable driving, as follows:

The appellant lost control of the car he was driving and struck a light pole. One of the passengers was killed. The two other passengers received serious injuries. The appellant had a blood alcohol reading of .252 per cent. He had three prior convictions for driving with excess alcohol in his blood (respectively, .049 per cent while a probationary driver; .150 per cent; and, less than two years earlier, .173 per cent). The appellant pleaded guilty and there was evidence of remorse and of rehabilitation. The trial judge sentenced him to seven years for culpable driving; and three years for each of two counts of negligently causing serious injury. The total effective sentence was eight and a half years, with a non-parole period of six years.

On appeal, the Court of Appeal held that the judge had made a specific error in the application of s 318 of the Crimes Act. In re-sentencing, the appellant was sentenced to six years and six months for culpable driving; and the total effective sentence was seven and a half years, with a non-parole period of five years. Charles JA described the appellant's drink-driving history as appalling. "The fact that he drove at all, after a day of drinking, made it a particularly serious example of an offence under s 318(2)(c)".[55]

The appellant drove his car at a speed of at least 136 kmh. He had a blood alcohol concentration of .171 per cent. He lost control of the vehicle, which became airborne and overturned. His eldest son was killed. The other son suffered serious injuries. The sentencing judge found that the offending conduct was out of character and that the offender was deeply remorseful. He was sentenced to eight years on the count of culpable driving and two years on the count of negligently causing serious injury. With cumulation, the total effective sentence was nine years' imprisonment, with a minimum term of seven years. The Court of Appeal dismissed his appeal against the sentence. Buchanan JA said that the consequences of culpable driving were "terrible and irreversible. ... The offence is essentially one against public safety. General deterrence is the principal objective in sentencing for the offence."[57]

57 In our view, these cases provide an appropriate yardstick for considering the sentence in this case. Even with the aggravating features to which we have referred, it is difficult to justify treating the applicant's conduct - in causing death by reckless driving - as significantly more culpable than the conduct of these alcohol-affected drivers. Unlike the applicant, none of these drivers was in a state of psychotic delusion at the time of the accident; none could have failed to appreciate the true nature of what he was doing. On that basis, we would uphold the applicant's contention that the total effective sentence of 14 years was outside the range reasonably open to the sentencing judge.

58 It follows that the sentencing discretion is re-opened. We take into account, as the sentencing judge did, the applicant's remorse; his early offer to plead guilty to manslaughter; the serious impact on the victims and on the family of the deceased man; and the need to protect the community, in view of the applicant's history of self-induced, dangerous, psychosis. We observe that it was rightly conceded on the applicant's behalf that the sentences imposed on the counts of reckless endangerment, and the orders for cumulation, were appropriate.

59 In our opinion the applicant should be re-sentenced as follows. On the manslaughter count he should be sentenced to nine years' imprisonment. On each of the counts of reckless conduct endangering life, he should be sentenced to two years' imprisonment and, on the count of theft, to one year's imprisonment. We would order that six months of each of the sentences for reckless conduct endangering life be served cumulatively on each other and on the sentence for manslaughter, making a total effective sentence of 11 years. We would direct that the applicant serve a period of eight years before being eligible for parole.

[1] R v Martin [2005] VSC 497 [23].

[2] At the time Dr Carroll was the Assistant Clinical Director (Community Operations) of the Victorian Institute of Forensic Mental Health.

[7] 2007 VSCA 102, [23]-[26].

[9] Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, 396 [53]. See and contrast Benitez v The Queen [2006] NSWCCA 21; (2006) 160 A Crim R 166, 174 [36]-[37].

[10] The position in New South Wales is different: see R v Jennings [2005] NSWSC 789; R v Kawasaki [2005] NSWSC 1298.

[17] (1991) 52 A Crim R 95 (Young CJ, Brooking and Marks JJ).

[19] Unreported, Court of Criminal Appeal, 22 September 1989.

[20] Kevich , Unreported, Court of Criminal Appeal, 25 November 1977.

[22] Unreported, Court of Appeal (Hayne JA, Southwell and Smith AJJA) 31 May 1996.

[25] (1990) 47 A Crim R 306, 327; See also Gordon (1994) 71 A Crim R 459, 467.

[31] Ibid [36] (Studdert, Whealey and Howie JJA) (emphasis added).

[32] Dr McKenny held the position of senior visiting psychiatrist to the Rural and Remote Mental Health Service in South Australia.

[37] See [44] below.

[45] Victorian Institute of Forensic Mental Health.

[46] The applicant told Associate Professor Sundram that he did not use amphetamines in this period.

[51] Unreported, County Court, Judge Nicholson, 5 September 2003.

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