30 I turn next to the fifth Tsiaras principle, concerning the impact of imprisonment on the appellant. Having regard to the descriptions of his mental state, it could hardly be doubted that the appellant's illness would have the result that imprisonment would "weigh more heavily on [him] than it would on a person in normal health." It is difficult to imagine how someone in the appellant's condition would cope with the rigours of prison life.
31 A related, but distinct, sentencing consideration is also relevant here. It is that time in prison would exacerbate the appellant's mental illness. It has been recognised since R v Smith[15] that ill-health will be a factor tending to mitigate punishment when there is a "serious risk of imprisonment having a gravely adverse effect on the offender's health". That consideration was not adverted to by either counsel or by the learned Judge.
32 As already noted, his first period of imprisonment had aggravated his depression and precipitated his psychosis. It would be rare for a sentencing court to have such clear empirical evidence about the likely adverse impact of prison on the health of the person to be sentenced. But there was, in addition, up-to-date expert opinion to the same effect. Both Ms Lechner and Dr Mouratides had expressed the view that incarceration was likely to lead to a further deterioration in the appellant's mental health.
33 Finally, the second Tsiaras principle is to the effect that the mental illness may have a bearing on the kind of sentence to be imposed and the conditions in which it should be served. This principle was also relevant here, for similar reasons. First, prison had in the past had a devastating effect on the appellant's mental health and was likely to do so again. Secondly, Ms Lechner had expressed the view that the appellant's rehabilitation "would be best served by ongoing psychiatric care in the community". For both these reasons, the appellant's mental illness meant that imprisonment was an inappropriate disposition.
Conclusion
34 In my opinion, the learned sentencing Judge fell into error by failing to take into account the relevant considerations to which I have referred, relating to the appellant's mental illness. Mr Trapnell for the Crown argued forcefully that the sentence imposed was so lenient in the circumstances that this Court should be satisfied that her Honour did have regard to the Tsiaras principles, notwithstanding that those principles were not mentioned in the sentencing remarks.
35 I am not persuaded by this submission. In her sentencing remarks (see para [22] above), the learned Judge treated the issues of general deterrence and moral culpability (denunciation) as considerations to be taken into account separately from the "personal" matters to which she had earlier referred. For the reasons I have given, however, the state of the appellant's mental health had a direct and immediate bearing on those very issues. The one could not be considered without the other. Further, there is nothing in the sentencing reasons to suggest that her Honour considered the third and fifth Tsiaras principles before deciding that a wholly-suspended sentence was not appropriate.
36 I would therefore uphold the second ground of appeal, which makes it unnecessary to consider the first and third grounds. There being specific error, the sentencing discretion is reopened. I turn therefore to the question of re-sentencing.
Re-sentencing
37 Much emphasis was placed - both on the plea and before us - on the fact that the appellant had a prior conviction for cultivation. This was plainly relevant, but its significance had to be assessed in the same factual context as did the counts for which he was being sentenced. According to the sentencing remarks which followed the 1996 conviction, the appellant had been invited, by an acquaintance of his, to stay with him in the country. The acquaintance had three plots of cannabis growing when the appellant arrived. While the appellant had "helped to complete the establishment of the cannabis operation" and had "tended to the growing plants", he was only involved in assisting in the cultivation of cannabis for his own use. The 2006 medical reports made clear that this had been his first introduction to cannabis.
38 He was by then already suffering from depression, and he had started using cannabis for the relief of both pain and anxiety.
39 Further, the culpability of his resumption of cultivation in 2004 was much reduced by his state of severe depression. That resumption was, in my view, much more readily excusable than it would have been for someone not so afflicted. For a person who was in such emotional distress as to be thinking of suicide, the possibility of some relief by use of cannabis would be very likely to overbear the self-restraint which would ordinarily be expected of someone who had previously been punished for similar conduct.
40 Given the appellant's serious mental illness, both at the time of the offending and at the time of sentence, I consider that it was, and is, inappropriate for him to be in custody. As I have said, prison was inevitably going to be very harmful to the appellant. Most significantly, it was a course which ran directly contrary to expert medical opinion about how best to advance his rehabilitation, both from depression and from drug dependency.
41 I would impose the same sentences as the learned sentencing Judge but would order that the whole of the sentences be suspended. The appellant should be released immediately.