Regina v Fahda [1999] NSWCCA 267 | Case summary

SIMPSON J : 2 This is an application for leave to appeal against the severity of a sentence imposed on the applicant on 11 September 1998 by Gibson DCJ following the applicant's plea of guilty to a charge of wounding with intent to inflict grievous bodily harm brought under s 33 of the Crimes At 1900. The section prescribes a maximum penalty of penal servitude for twenty-five years. After taking into account two months of pre sentence custody Gibson DCJ sentenced the applicant to a total term of penal servitude for six years and ten months, which was an effective sentence of seven years. He found that special circumstances existed justifying departure from the statutory ratio contained in s 5(2) of the Sentencing Act 1989 and divided the sentence into a minimum term of three years and ten months (or an effective minimum term of four years) and an additional term of three years. 3 Objectively speaking the offence was particularly serious. It was committed on 4 October 1995. The victim was the applicant's then wife, Alum Fahda. The applicant and his wife had been experiencing matrimonial difficulties for some time and slept in separate bedrooms in the house they occupied with their five children. During the night of 3 October the applicant entered his wife's bedroom for the purpose of making sexual advances. These she rejected. The following morning in the kitchen the applicant attacked his wife, first with a heavy frying pan, which he used to hit her on the back of the head using sufficient force to break the handle of the frying pan. The victim fell to the kitchen floor. The applicant then took a carving knife, held her by the hair, and stabbed her at least three times in the neck. The couple's eleven year old daughter, Donna, came on the scene. Her perception was that the applicant was "trying to cut her head off". Mrs Fahda was bleeding copiously from the neck. Donna punched the applicant and told him to stop and managed to push him off her mother. The applicant continued to swing the knife at his wife, and hit and cut Donna in the process. Mrs Fahda fled into the street, pursued by the applicant. He caught her and pushed her to the ground. Donna was able to take possession of the knife and throw it away. The applicant then attempted to strangle his wife with both hands around her throat. Donna again pushed him from Mrs Fahda and Mrs Fahda ran up the street. The applicant returned to the house. 4 Police and an ambulance were called. Mrs Fahda was taken to Bankstown Hospital where she underwent surgery for her injuries. In a medical report she was described as having several deep lacerations to the right side of her neck. Photographic evidence suggests also that she had deep cuts to the front of the neck. She had multiple slash wounds to both hands. Dr Chang, a reconstructive surgeon, was unable to provide a final prognosis on 24 October 1995, when he wrote a report on her injuries, but was then of the opinion that, in view of the severity of the injuries, full recovery of hand functions was unlikely and that Mrs Fahda would need physiotherapy to mobilise her hands. 5 The applicant was interviewed by police during the morning of 4 October. He claimed that it was his wife who initiated the use of the knife and that he took it from her after she had threatened him with it, and then "hit" her with it in the stomach. He was asked how many times he had struck his wife with the knife, but said that he could not remember because he suffered from depression and nervousness when upset. He said when the argument started he lost his mind. He acknowledged the earlier sexual approaches he had made to his wife. 6 There was nothing to corroborate much of the applicant's version of events which is significantly at odds with that of his wife. As there were no witnesses until Donna entered the kitchen there was also no corroboration of Mrs Fahda's account to that point. The sentencing judge did not make specific findings of fact in relation to the circumstances that precipitated the applicant's attack on his wife but rather adopted a composite statement of facts prepared by the prosecution. This was largely consistent with Mrs Fahda's account. There are a number of reasons why, so far as it is necessary to resolve the factual inconsistencies between the two accounts, that of Mrs Fahda ought be accepted. First, that appears to be the approach taken by his Honour in adopting the abbreviated statement of facts to which I have referred, although he had available to him all statements and the applicant's record of interview. Second, the applicant said more than once that he stabbed his wife in the stomach, but could not remember stabbing her elsewhere on her body. There was no medical or other evidence that Mrs Fahda had been stabbed in the stomach but there was ample evidence of stabbing to the neck and of knife injuries to the hands. Third, while the applicant expressly denied striking her with the frying pan there was evidence of a broken handled frying pan. Fourth, the account given by the applicant of events after the initial attack was inconsistent with statements of a number of witnesses. He said that the argument finished and he walked out of the house and then returned to his son's bedroom where he waited for police. This account failed to give any recognition to that part of the attack that took place in the street. When questioned about evidence that he had in fact perpetrated part of the attack in the street the applicant said that he was simply trying to persuade his wife to return to the house. The objective evidence therefore supports Mrs Fahda's account. 7 Neither the applicant nor his wife gave oral evidence at the sentencing proceedings. Relevant findings of fact therefore fell to be made on the basis of the documentary material, a task this court is as well placed to undertake as the sentencing judge. Having regard to the views I have formed, it is necessary to state with some particularity what those facts are. As I have indicated, I would accept the account given by the complainant, and where it is in conflict with that account, reject that of the applicant. This is particularly significant in relation to the applicant's claim that his wife had initiated the violence. 8 On a number of occasions the applicant answered questions by saying that he was sick, he suffered from depression or nerves, and was on medication. He also asserted that his wife had been unfaithful with two other men and that this was particularly serious in his cultural milieu. He maintained that he loved his wife. At another point in the interview he said that he had acted in self-defence. This latter assertion should be rejected. 9 A number of grounds of appeal were argued on the applicant's behalf. It is convenient to deal with them in a sequence different from that in which they were argued. 10 In one ground it was asserted that, although the wounds inflicted on Mrs Fahda were serious, they were inflicted without any intention to kill. In this regard it is relevant that the applicant was initially charged with attempted murder but the Crown accepted his plea of guilty to the charge under s 33 in full satisfaction of the indictment. Plainly, the applicant came to be sentenced under that section, which does not incorporate an intention to kill. His Honour treated the offence as one of which the mental element was an intention to inflict grievous bodily harm and there is no suggestion, implicit or explicit, in the remarks on sentence that he did otherwise. Indeed, it is not suggested that he acted on any basis other than that the mental element was that relevant to the offence in question. It is therefore difficult to see how the assertion (which is correct) concerning the applicant's intention is relevant to the appeal. 11 It is quite plain, however, both by the plea and by the objective facts, that the applicant intended to inflict grievous bodily harm and that he did in fact inflict serious wounds and permanent damage on his wife. The attack must have taken place over quite a prolonged period, it moved from the house to the street, it involved the use of two separate weapons as well as an attempt at manual strangulation, and it was perpetrated in the presence and over the resistance of the couple's eleven year old daughter. Senior counsel for the applicant referred to the decision of this court in R v Khan (1996) 86 A Crim R 552 as an illustration of the approach taken in a case that had some parallels with the present. Those parallels were in my view, superficial. Both cases involve an offence committed in the context of a Muslim marriage, and its attendant cultural conditions and connotations. There the parallels end. 12 Khan was a case in which the charge was murder, but the jury returned a verdict of not guilty of murder but guilty of manslaughter by reason of provocation. The killing was particularly savage and was provoked by the victim's adultery with the wife of the accused. On a Crown appeal Khan was sentenced to a total term of penal servitude for six years made up of a minimum term of four years and an additional term of two years. Objectively, that offence must be categorised as worse than the present offence, not only because it involved killing, but also because there was clear evidence that that was the intention of the accused, and the offence was attended by a degree of planning. 13 The sentence imposed in Khan, like all sentences imposed following successful Crown appeals, is no guide to anything other than the minimum term that could properly have been imposed in relation to the circumstances that there existed. It in no way sets any benchmark for sentencing in what amount to extreme cases of domestic violence. 14 Sentencing statistics from the Judicial Commission of NSW show that seventy-four percent of all offenders convicted of this offence are sentenced to a total term of less than seven years. Twenty-six percent are sentenced to seven years or more. As always, the statistics must be treated with caution. They do not disclose the particular facts and circumstances of the various cases to which they relate. A wide range of circumstances, degree of injury, level of criminality and mitigating circumstances is to be found in offences against this section. In my opinion the present offence must be classified as at the very higher level of seriousness. The fact that it was not committed with intention to kill does not diminish the seriousness of what actually happened. 15 There is no substance in this ground of appeal. 16 Another matter argued on behalf of the applicant concerned the length of time between the offence and sentencing. The offence was committed on 4 October 1995. The applicant was sentenced on 11 September 1998. It was submitted that these circumstances brought the case within the principles discussed in R v Todd (1982) 2 NSWLR 517, esp at 519, and R v Mill (1988) 166 CLR 59. 17 Todd and Mill were both cases involving offences committed within a relatively confined time span, but in different states, with the result that the sentences were imposed separately and the sentences of the second state were necessarily delayed pending the expiration of the sentences imposed by the first. In Todd Street CJ said: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise , fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." (emphasis added) 18 The principles stated in Todd were generally endorsed by the High Court in Mill. 19 It does not appear that the sentencing judge was referred either to Todd or Mill or to the general principle stated in those cases. In sentencing the applicant he made no reference to the delay. However, he did take into account the positive evidence of rehabilitation, to which I will make more extensive reference below. He did not expressly acknowledge either the delay between offence and sentencing or the other matters referred to by Street CJ. These matters, however, have to be seen in the context of some additional facts. The plea of guilty was not entered until 19 November 1997. That of itself may not be of great significance, since there is no information before this court as to when the applicant first offered to plead guilty to the lesser charge, or when the Crown first signified its willingness to accept such a plea. Moreover, if the delay were attributable only to the applicant's maintenance of a plea of not guilty to either charge, I doubt whether that circumstance should be used to counter the Todd principles. In R v Bragias (1997) 92 A Crim R 330 Grove J expressed the view that a prisoner who came to be sentenced a long time after the commission of the offence could not claim the benefit of that delay as a matter of special mitigation where the delay was attributable to his own choice to contest the Crown case. The prisoner in that case had, his Honour considered, been liable to be sentenced from the date of the offence and delays brought about by his denial of his guilt ought not sound in mitigation. The delay in that case was caused, in part, by the fact that a conviction following an earlier trial was quashed in this court and a new trial ordered. Sheller JA was of the opinion that the delay was a consideration appropriate to be taken into account on sentencing and adherence to a plea of not guilty subsequently shown to have been unjustified ought not deprive the applicant of any benefit he might otherwise be entitled to arising from a lengthy lapse of time between the offence and sentencing. As the third member of the court in that case I expressed no view on the difference of opinion that emerged. I remain unprepared to endorse a universal proposition as to the effect on the Todd principles of delay resulting from adherence to the right to enter a plea of not guilty and to put the Crown to proof. I would, however, express a preference for the view that, generally speaking, the exercise of such a right should not operate to exclude the Todd principles. It must be recognised that delays attendant upon a plea of not guilty lie essentially at the door of the overburdened criminal justice system which is inadequately resourced to afford speedy resolution of contested charges. It is, of course, true, as Grove J said, that an offender is liable to sentence from the date of the offence but this is no answer to the recognition given by Street CJ to the additional pressure that results from delays in the resolution of these matters. In the circumstances applicable to this case, the observations of Grove J in Bragias do not persuade me that the Todd principles should not be applied. In my opinion the delay was a relevant consideration, and one which, subject to the matter I next mention, was available to be taken into account in the applicant's favour. 20 There is a further relevant circumstance on this issue. The sentencing hearing began on 20 February 1998. It appears from the transcript that all evidence and submissions were completed on that day, and the proceedings were stood over for sentence on 27 February. On that date it was further adjourned because of the unavailability of the applicant's counsel, and was to be relisted on 20 March 1998. At some stage before 29 May the applicant sought leave to withdraw his plea of guilty. That application was heard on 24 and 25 June. Judgment refusing the application was delivered on 4 September 1998. 21 The delay between the commencement and completion of sentencing is therefore somewhat unusual. While the principles stated in Todd do not purport to vary according to the proper allocation of responsibility for the delay, it is more difficult for an applicant who properly bears that responsibility to call them in aid. That proposition is, to some extent, balanced by the evidence concerning the applicant's psychiatric condition, which is dealt with below. Nor is it to be overlooked that the delay attributable to this circumstance was relatively minor compared with the overall delay. 22 Somewhat hesitantly, I have come to the view that there is merit in this ground of appeal. Alone, it may not have been sufficient to establish a miscarriage of justice. Taken together with the further matters to which I refer below it has greater significance. 23 A third ground argued on the appellant's behalf concerned the attitude taken by the victim. By the time the applicant was sentenced the two had divorced and the applicant had remarried. Mrs Fahda nevertheless provided an affidavit sworn on 4 September 1998 in which she acknowledged that she had known for several years prior to the offence that the applicant suffered psychiatric problems. She gave some detail of the problems as she understood them and observed them. In a separate statement which is undated she said more about this. She said that she no longer had any contact with the applicant, the only connection between them being the children. She concluded by saying that, notwithstanding what he had done, she bore him no ill will and did not wish to see him punished. 24 Once again, it was not argued that his Honour had wrongly overlooked the evidence of the victim's attitude, nor that her forgiving attitude was or should have been of very great persuasive force. Reliance was placed upon the decision of this court in R v Bradford (unreported, NSWCCA, 6 May 1988) in which the applicant's wife, who had been very badly attacked, had resumed cohabitation with him. Street CJ said: "Punishment can properly be tempered in the light of the victim's attitude." 25 Loveday J agreed that the wife's expressed preference not to proceed with the charges should have been taken into account along with the other matters relevant to sentencing. 26 Notwithstanding those observations which were made in the very particular circumstances of that case, I adhere to the view I expressed in R v Glen (unreported, NSW CCA, 19 December 1994), a view that was endorsed by Hunt CJ at CL, Smart and Ireland JJ in R v Rowe (1996) 89 A Crim R 467. Generally speaking, as a matter of public policy, for reasons I gave in Glen, a merciful attitude by the victim of an offence of domestic violence ought not influence a sentencing decision - any more than an unforgiving or vengeful attitude by the victim ought do so. Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished. Victims ought not be placed in a position where they hold, or appear to hold, the keys to the offenders' release. To put them in that position is to impose on them a burden they ought not be required to bear. 27 Mrs Fahda's forgiving attitude appears to stem principally from her recognition of the applicant's psychiatric condition. If that condition justifies the taking of a different or special approach to sentencing, that is a matter to be decided by the sentencing court, and not left to, or made in any way dependent upon, the attitude of the victim. I am satisfied that there is no substance in this ground of appeal. 28 There remain for consideration two grounds of appeal that can be dealt with together. They are framed as follows: "1 The offence was committed by the applicant in a state of jealous delusion as to his wife's infidelity. 2 The deterioration in the applicant's psychiatric condition can be traced back to the impact of a family tragedy." 29 There was a great deal of evidence about the applicant's psychiatric history placed before the sentencing judge. Mr Yeyha Hesseen, a welfare worker in the Muslim Church to which the applicant belonged, said that he had known the applicant for about twelve years or more. The applicant had begun attending the mosque to which Mr Hesseen was attached about two to three years previously, although the association was also said to have occurred shortly after the tragic death of the applicant's five year old daughter in a traffic accident. This event was shown by other evidence to have occurred in 1985. Mr Hesseen said that when he first met the applicant, he (the applicant) was very ill mentally, hesitant, showing signs of depression and not looking normal. He was shaking, panicky and nervous. Mr Hesseen thought he was unstable and needed help. 30 The applicant's older brother Omar Fahda also gave evidence. He said that the applicant had always been "abnormal" having a very short temper. He said that when the applicant was seven or eight years of age he was very ill with a fever, and was unconscious for a week; and that he had, on two occasions, in 1992 and 1995, attempted suicide. He said that the applicant had been badly affected by the death of his daughter and sat beside her grave reciting passages from the Koran. There was, of course, also the affidavit and statement evidence of the applicant's wife to which I have already referred. 31 These lay opinions about the applicant's mental state were strongly supported by medical evidence. 32 There were three reports from Dr Osman Ali, a psychiatrist who had been treating the applicant since 1990, well before the present offence. In a report dated 22 November 1990 Dr Ali diagnosed the applicant's condition as "pathological jealousy syndrome", which he thought then had been in existence for eight to twelve months. Dr Ali re-stated this diagnosis in a report prepared, evidently for medico legal purposes, on 29 January 1996. The condition was manifested by the applicant's allegation that his wife was engaging in "culturally inappropriate" behaviour with other men. Dr Ali, while not in a position to evaluate the accuracy of the applicant's assertions, considered that the logical process which led the applicant to make them was delusional. Dr Ali considered that at the time of the offence the applicant was affected by psychotic depression and that this would have greatly clouded his judgment. He expressed the view that a custodial sentence would lead to further deterioration of self esteem and interfere with psychiatric follow-up. 33 As well, there were no fewer than five reports from Dr John Roberts, also a psychiatrist. All the consultations on which the reports were based post dated the offence, and it is reasonably plain that Dr Roberts first became involved for the purposes of providing an opinion for the sentencing proceedings. However he became actively involved in the applicant's treatment, in part concurrently with Dr Ali. Dr Roberts diagnosed schizophrenic illness plus a pathological jealousy syndrome. He, too, was unable to comment on the accuracy of the applicant's beliefs about his wife's asserted infidelity, but considered that his response to those beliefs was indicative of psychopathology influenced by his cultural and religious background. He thought it was likely that the applicant was more mentally disturbed at the time of the offences than at the time of his first consultation (10 December 1995). 34 From 14 December 1995 (the date of his release on bail) the applicant came under Dr Roberts' care. In March 1996 Dr Roberts considered that he needed hospitalisation, believing that he was at risk of suicide. On 12 August 1996 Dr Roberts diagnosed psychosis characterised by the presence of auditory hallucinations. He thought the condition was "a complex mixture arising out of the presence of a severe psychiatric disorder of a schizophrenic schizo-affective psychosis of which pathological jealousy was a manifestation". 35 He considered that the applicant's responses to the actual or perceived behaviour of his wife were influenced by a cultural component. He thought that the applicant was mentally disturbed at the time of the offence and that he continued to be mentally disturbed at the time of the report. 36 On 3 February 1998 Dr Roberts expressed the view that the applicant was not then a risk to the community at large nor to any person in particular. He nevertheless emphasised the need for the applicant and his wife to avoid any contact with one another. In the same report he recorded the possibility that the medication which the applicant was taking at the time of the offence may have contributed to his behaviour. He did not, however, reach any conclusion on that question. 37 He then noted that the applicant's deterioration may well have followed the tragic death of his daughter which soured the relationship between himself and his wife. He reiterated his view that incarceration would probably have a negative long term affect on the applicant's prognosis and capacity to adjust. 38 The sentencing judge accepted that the applicant was psychiatrically ill and referred globally to the authorities as to the effect of such a condition on sentences. He said: "As I understand the law it affects the question of general deterrence and personal deterrence and could, in the appropriate case, cancel out those considerations. In my opinion it does not go that far in this matter but it is a matter to be considered not only on the head sentence but in relation also to special circumstances. … As I said earlier, I do not consider this to be a case in which questions of deterrence, personal and general, disappear." 39 Senior counsel for the applicant expressly disclaimed any challenge to the approach signified by the judge, particularly in the second sentence of the passages extracted above. That is, as I understand the disclaimer, senior counsel did not advance any argument that this was a case in which the evidence of psychiatric illness was such as to "cancel out" considerations of general and personal deterrence. 40 The authorities to which the judge referred include R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri unreported NSW CCA 18 March 1992; R v Engert (1995) 84 A Crim R 67. Also relevant is R v Champion (1992) 64 A Crim R 244 and R v Wright (1997) 93 A Crim R 48. 41 In Scognamiglio Grove J noted that it was long established that mental handicap, falling short of providing a defence on the ground of mental illness, is a basis for reduction of sentence. He extracted and adopted remarks of Young CJ of Victoria in R v Mooney (unreported, 21 June 1978) as follows: "In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight … general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." 42 In R v Letteri (unreported, NSW CCA, 18 March 1992) Badgery-Parker J said:

In Moonie, Anderson and Man, the offender was at the time of the offence suffering from a significant mental illness, indeed, such that in Anderson and Moonie the Court of Criminal Appeal was of the view that a defence of mental illness under the McNaughton Rules would have succeeded. In Kilmartin the same principle was applied where the offender was not mentally ill but very severely intellectually handicapped. In each of those cases, it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle." 43 His Honour then went on to quote another passage from Mooney, as extracted in Anderson, to the following effect: "The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced." 44 Badgery-Parker J then referred to Currie, a case in which the disability was an intellectual impairment. He stated the principle in the following terms: "…whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 45 Gleeson CJ and Sheller JA agreed. 46 Both Scognamiglio and Letteri were in turn adopted by Gleeson CJ (with whom Allen and Sully JJ agreed) in Engert. His Honour said: "A moment's consideration will show that the interplay of a consideration relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction relating to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No. 2) [(1988) 164 CLR 465]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence might, at the same time increase the importance of deterrence of the offender. [p 68] … In truth, however, … the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. [p 71]" 47 In Wright Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) said: "It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." (emphasis in original) 48 It is to be noted that in the passage from Engert which I have extracted, Gleeson CJ pointed to two sentencing considerations that, in a particular case, might balance the diminished relevance of general deterrence. These were the protection of society and personal deterrence. 49 Conclusions drawn by the sentencing judge, amply supported by the evidence, establish that both of these factors can, in this case, be put to one side. His Honour found that in the light of the applicant's new marriage there appeared to be solid grounds for rehabilitation. This suggests that neither protection of society nor personal deterrence need weigh heavily in the scales. The opinions of the applicant's treating psychiatrists, to which I have already referred, are also here relevant. 50 Similarly, in the later passage quoted, Gleeson CJ considered the different ways in which a causal connection between the mental disorder and the offence might operate. Once again, having regard to the sentencing judge's conclusion, and the medical evidence, it seems to me that it would not be right, in the circumstances of this case, to increase the weight to be given to personal deterrence or public protection as a balance against the diminished attention that need be given to questions of general deterrence. 51 In my opinion the result of the proper application of the authorities I have quoted to the facts outlined demonstrate that the serious mental disorder suffered by the applicant should properly have reduced the emphasis on general deterrence without either of the counterweights which might potentially, in different circumstances, have come into play. The evidence of psychiatric disorder was very strong indeed. 52 The sentencing judge did indeed give the applicant's disorder some weight and it was not suggested that he should not have done so. As I have said, there was no challenge to his view that both general and personal deterrence retained some, if reduced, relevance. No error in the remarks on sentence in this regard was suggested. The question is, therefore, whether the sentence itself demonstrates that either too much weight was placed on deterrence, or too little emphasis was given to the psychiatric illness. 53 The objective seriousness of the offence cannot be gainsaid. But I have reached the conclusion that the applicant's culpability for the offence, by reason of his mental illness, was diminished to a greater degree than is reflected in the sentence imposed. I would, accordingly, allow the appeal and quash the sentence. I would not disturb the finding of special circumstances. 54 In my opinion the applicant's culpability can properly be punished by a sentence of a total term of penal servitude for five years made up of a minimum term of two and a half years and an additional term of two and a half years. In reaching that conclusion I have taken into account the two months of pre-trial custody. 55 I propose the following orders:

Regina v Fahda

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