R v Richards [1999] WASCA 105

R v Richards [1999] WASCA 105 - WASCA 1999 case summary — Zoe

[30]

20 The first report to which I shall refer is an undated report from Dr Cass. She said that the respondent presented as a man of low average intelligence. He was co-operative but emotionally upset and concerned with the effect of his offending behaviour on his family. He seemed desperate to find an explanation for his behaviour and expressed shame at his actions. Dr Cass said that while the respondent recognised that his stepdaughter must have been devastated by what he did to her, there was a lack of deep feelings of empathy for her situation. The emotional distress expressed as he described what took place appeared to derive largely from the disruption of family life for him and his fears that his wife would reject him. The respondent described to Dr Cass how he had put on the balaclava with gauze sewn by him and returned home on the date of his offence knowing his stepdaughter was still in the house. He said that he had previously planned an elaborate idea of procuring his stepdaughter to sexually pose for him whilst he took photos of her. He said that prior to his entering the house he apparently had no specific idea of what he was going to do. He told Dr Cass that he had obtained some of his ideas from reading pornographic material found at a rubbish dump. He said that although he thought about different schemes over several weeks, it was only four days prior to the assault that he "firmed up" any plans. He told Dr Cass that he was divided into "a good self and an evil one at the time". He said that it was the latter that plotted the incident while the former was horrified at what was being considered. Dr Cass referred to the fact that the respondent had not been involved with the law prior to this charge. She said that despite this history and a moral capacity to judge his actions to be wrong, he was able to plan the assault and carry it out. Dr Cass considered that the description of events suggested that he was in a dissociative state at the time of planning and executing the assault. She explained this by saying he was experiencing a mental disorder, which saw him dissociate his actions from his moral reasoning. The disorder also saw him have no control over his actions. She said that he appeared to have been in a depersonalised state, a characteristic of the dissociative order. Dr Cass said that the dissociative mental disorder appears to have been temporary, brought on by stressful events occurring several months prior to the incident of assault. She said that after he was charged the respondent returned to his previous mental state, that is, without the division of himself into good and evil. She said that it was only then that he could apparently think through what had been happening and recognised the role that the "good" and "evil" parts of himself had played.

[32]

22 The next report to which I shall refer is the first report of Dr Skerritt. He interviewed the respondent in prison on 31 October 1998. He also viewed the videotape interview between the respondent and the investigating officers. He said in his report dated 2 November 1998 that he could not find any evidence of the sort of mental disorder which may have made him eligible for such defences as insanity or automatism. However, he expressed the opinion that his uncharacteristic behaviour was a result of mental illness which perhaps might be considered in mitigation of his offences. He outlined the difficulties to which I have previous referred. He described how the respondent was worrying over his financial affairs which he felt represented a recurrence of a depressive illness which had commenced in England. He said his symptoms worsened markedly in the two or three weeks before the offence. When clearing away rubbish he took a professional interest in what was being thrown out and noticed that pornographic magazines figured prominently. He had a pre-occupation with them and commenced to collect them. This resulted in a formulation in his mind of a sexual assault on his stepdaughter involving the taking of photographs. He found himself collecting the equipment for the assault, including the balaclava in which he sewed the gauze over the eyes. He arranged to take a day off from his work in order to carry out the assault. Dr Skerritt considered that the respondent had suffered intermittently from a depressive disorder which could probably be classified as a dysthymic disorder. The typical depressive features included low moods, low energy and a change in sleep pattern. He said that the thought processes of depressed people particularly run to two themes. They are guilty of self-deprecatory thoughts and pessimism. When these are added together, suicide often seems reasonable to a depressed person, and indeed is the commonest diagnosis found in successful suicide. Dr Skerritt considered an interesting feature was the separation in the respondent's mind of good and bad thoughts. He said this was an example of a classic mental mechanism known as dissociation where the brain manages to separate different aspects of mental functioning from each other. He considered that the illness is potentially treatable.

[66]

43 The remaining factors to consider are the factors that were affecting the respondent's mind. This is an important matter to consider. As was said by Brennan J (as he then was) in Neal v R [1982] HCA 55; [1982] 149 CLR 305 at 324: "Emotional stress which accounts for criminal conduct is always material to the consideration of an appropiate sentence, though its mitigatory effect can be outweighed by a countervailing factor..." I would see the law in this State as being that the mere presence of a psychiatric condition is not of itself mitigation unless it is shown that there is a connection between the psychiatric condition and the commission of the offence so as to justify a reduction of the sentence imposed. It must be shown that the condition contributed to the commission of the offence or was a factor to lessen the moral culpability of the offender. The law was recently stated by Steytler J in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. In that case the applicant had committed three offences of sexual penetration without consent and had unlawfully detained a 19 year old complainant. He had offered the complainant a lift home in his car. He drove her to a place she did not want to go and committed the offences with a degree of physical violence. He was a 35 year old self employed businessman, who, at the time was severely depressed as a result of family problems. There was before the sentencing Judge a psychiatric report that the applicant was suffering from a severe psychiatric disorder in the form of major depression. He had received treatment and the psychiatrist was of the opinion 'with reasonable medical certainty' that the applicant was unlikely to re-offend. Steytler J, in reasons with which the other members of the court agreed said that the court was referred, so far as the applicant's psychiatric illness was concerned, to two cases which have touched upon the effect of psychiatric disorders on the sentencing process. His Honour said:

[72]

44 The case of R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 referred to five possible ways in which serious psychiatric illness not amounting to insanity is relevant to sentencing. First it may reduce the moral culpability of the offence as distinct from the offender's legal responsibility. I do not consider that a depression, even a severe one, would reduce the moral culpability of an attack of the type carried out by a stepfather on a stepdaughter. Denunciation of this type of conduct is still most relevant to the sentencing objective. The second factor referred to is that the illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. A depression would not come into this category. The third factor referred to is that a person suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. This last proviso reveals a divergence of view in this State and Victoria. There would be no argument that certain conditions that contributed to the offence may, in some cases, lead to this result. The position in Victoria was considered in R v Anderson [1981] VicRp 17; [1981] VR 155. The Full Court applied that principle to a case of a person suffering from paranoid schizophrenia who was found guilty of two counts of wounding with intent to murder and one count of maliciously inflicting grievous bodily harm. They occurred at the same time. The offender said that he remembered nothing until he was placed in a police van. The trial judge was informed that a deliberate decision was made not to raise insanity. There was evidence to support this. It may well be that such a situation would not arise in this State by reason of s 653 of the Criminal Code as amended which may require the jury to consider the question of insanity in any event. Whatever may be the situation the psychiatric illness in that case could not be compared to the present case. The Full Court in that case followed an earlier unreported decision of that court in the case of R v Mooney, unreported; 21 June 1978 and referred to at page 159 of the report of R v Anderson. The Court in that earlier case was considering an applicant who had pleaded guilty to one count of assault occasioning bodily harm and one count of wounding with intent to resist lawful apprehension. He was suffering from a mental condition described as "mental depressive psychosis". There was again evidence upon which a conclusion might have been based that he was insane in the legal sense. In R v Tsiaras the Court was considering a sentence of three years imprisonment imposed on an offender for trafficking in cocaine. It was considered that the trial judge did not have sufficient regard to the offender's schizophrenic illness. The court in that case considered that the circumstances of the offender prevailed over the offence.

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