Rigby v Regina

Court of Criminal Appeal (NSW)|2006-07-20|Before: Studdert J, Kirby J, Johnson J, Ms J

JUDGMENT OF: Studdert J at 1; Kirby J at 2; Johnson J at 83

DECISION: (1) There should be an extension of time for the filing of the application for leave; (2) Leave to appeal should be granted; (3) The appeal should be allowed; (4) The sentence of 8 years imprisonment on each count should be confirmed, but the non parole period on each count should be quashed and, in lieu thereof, there should be a non parole period of 4 years on each count, commencing on 2 December 2002 and expiring on 1 December 2006.

CATCHWORDS: Criminal Practice & Procedure - appeal against sentence - convicted sexual intercourse without consent - fresh evidence that mentally ill at time of offences - admissibility - relevance of mental illness to sentence - issue of dangerousness - special circumstances.

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Mental Health Act 1990

R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 Anderson v R [1981] VR 155 CASES CITED: R v Lauritsen (2000) 114 A Crim R 333 R v Pitt [2005] NSWCCA 304 R v Kenneth William Bailey (1988) 35 A Crim R 458 R v Ehrenburg (unreported, NSW CCA, 14.12.90) Veen v The Queen (No 2) (1988) 164 CLR 465 R v Engert (1995) 84 A Crim R 67

PARTIES: Michael Craig Rigby (App) Regina (Resp)

COUNSEL: S Odgers SC/Ms J Shepherd (App) L Lamprati SC (Resp/Crown)

SOLICITORS: Ms S Calomeris - LAC (App) S Kavanagh (Resp/Crown)

THE COURT OF CRIMINAL APPEAL 2006/76

STUDDERT J KIRBY J JOHNSON J

Thursday 20 July 2006 MICHAEL CRAIG RIGBY v REGINA Judgment 1 STUDDERT J: I agree with Kirby J. 2 KIRBY J: Michael Craig Rigby (the appellant) was charged with a number of offences arising out of the complaint of Ms T (the complainant). The indictment may be summarised as follows: Count 1: That on 28 February 2002 he had sexual intercourse with the complainant without her consent, namely, vaginal intercourse (contrary to s61 I Crimes Act 1900 ). Count 2: Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, fellatio (contrary to s61 I ). Count 3: Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, cunnilingus (contrary to s61 I ). Count 4: Further, that on 28 February 2002, he had sexual intercourse with the complainant without her consent, namely, vaginal intercourse (contrary to s61 I ). 3 Mr Rigby pleaded not guilty to each count. He stood trial before Coolahan DCJ and a jury in Newcastle. He was convicted on all counts. 4 On 12 March 2003, his Honour Judge Coolahan sentenced the appellant to concurrent terms of 8 years imprisonment. He fixed a non parole period of 5 years. Mr Rigby was given bail soon after his arrest on 28 February 2002. He remained on bail until the trial ended on 4 December 2002. His Honour ordered that the sentences be backdated to 2 December 2002 to take account of the time spent in custody. Mr Rigby will be eligible for parole on 1 December 2007. 5 Mr Rigby seeks leave to appeal against sentence. The notice seeking leave was filed well out of time. He therefore also seeks an extension of time. He relies upon a single ground, expressed in the Notice of Appeal in these terms: "1. The sentence proceedings miscarried given the absence at those proceedings of fresh evidence." 6 Before considering the application for the admission of fresh evidence, I should describe the offences.

The Offences. 7 Ms T was a university student who lived in Sydney. On 25 February 2002 she travelled to Newcastle to spend a few days with friends. On the evening of 27 February 2002, she and her friends visited various hotels in the Newcastle area. She had several drinks. However, she became separated from her friends so that she had to make her own way home. 8 Ms T walked to the central station in Newcastle. She intended to catch a train to Waratah where her friends lived. She arrived at the station at about 3.30 am. Having caught the train, she fell asleep. The appellant was on the train. He asked if he could sit next to her. She said that he could, and again went back to sleep. 9 The train stopped at Taro. Ms T woke up startled. She asked the appellant whether the station was Waratah. He said that it was. She then quickly got off the train. 10 After the train had pulled out, Ms T quickly realised her mistake. She noticed that the appellant was a few metres behind her. She went to the timetable on the platform to ascertain the time of the next train to Waratah. Whilst she was examining the timetable, the appellant came up to her. He placed his hands upon her waist. She brushed him aside and determined that she would instead phone a taxi. She described what then happened in these words: (T9: 27.11.04) "A. Before I got to speak to anyone in the taxi company the person grabbed my mobile phone out of my hand while he hooked his arm around my neck and he threw my phone and I just was in shock. I - somehow I didn't see it coming. I - before I'd just been so focused on getting the taxi." 11 Her account continued as follows: (T10: 27.11.04) "A. He started pulling me backwards dragging me away and I started to say 'No, no, no, you can't do this' and just kept repeating the words 'You can't do this' over and over again just like a mechanic type of thing, just words just flowing out of my mouth clearly saying 'No'. And he just said, he was kind of saying 'Shh, we're just going to go over there' and I couldn't believe this was happening and I said 'No, you can't do this' and then I said 'Look I've got HIV you can't do this, you'll get infected'. I was just trying to think of anything that could stop him." 12 The appellant was a young man. He was then aged 23 years. The complainant was 19 years old. She said that he was much stronger. It was, of course, dark, and the station deserted. The appellant dragged the complainant to a nearby bench. She continued to cry and scream. She was told to "shut up". She said that she feared for her life. She determined that she would close her eyes and not resist. She continued crying silently. 13 What happened next was described by the sentencing Judge in these terms: (ROS 4) "She said the accused had his hand on her breast and that he said, 'This is going to happen.' She said she did not see him take his shorts off but then the accused spread her legs and started having penile/vaginal intercourse with her. She said that for most of the time she kept her eyes closed. She said that the accused removed his penis and then pulled her by the arm and said, 'We're going to go over here.' He pulled her to a spot on the platform. The accused then sat down, she said, and was still holding her hands. She said he then put his hands on her waist and lowered her towards him. She said that he was laying down and he made her 'go down on him'; that is to say, he made her put his penis in her mouth. She said that whilst she was doing this he told her to suck harder and faster. She said that he then, whilst that was occurring, put his tongue inside her vagina. She said that he stopped and said, 'Okay, get up', and then pushed her back over to the bench and made her lie down again, where he had further penile/vaginal intercourse with her." 14 Having had intercourse, the appellant asked Ms T to kiss him. At first she refused. When he insisted, she did so perfunctorily. He demanded that she kiss him properly, which she then did. 15 Ms T made a statement to the police shortly after the incident. She described what then occurred in these words: "He placed his hand on my right knee and started talking small talk to me. During this he said 'I just raped you, hey'. I didn't reply and I looked towards the ground. He said 'Did you enjoy it?' I said, 'Yes' (I said 'Yes' hoping not to arouse his anger. I remember after I said this, I felt as though I just wanted to throw up.) He said 'So, am I going to see you again? Do you want to catch up tomorrow night?' I said 'Yeah, sure'. I said 'What is your telephone number?' He said 'No, I don't have one. Give me yours.' ... Whilst I was sitting on the concrete platform, he also said 'So, what are you going to do today?' I said 'I don't know.' He said, 'I think I am going to go and rob somewhere. Do you want to come with me?' I didn't look at him. I just said 'No'." 16 The train to Waratah arrived at Taro at 4.35 am. Ms T boarded the train, as did the appellant. She went straight to the guard. The appellant went to another part of the carriage. Ms T began shaking and sobbing uncontrollably. She kept repeating to the guard that "he raped me". The guard called the police, who arrested the appellant. 17 The appellant gave evidence during the trial. He denied the use of force. However, he did not dispute the complainant's account of what had happened sexually. He said, however, that she had consented. His Honour, in his remarks on sentence, having referred briefly to the appellant's account before the jury, said this: (ROS 8) "I have not gone into complete detail about the evidence of the accused, suffice it to say that even in chief the account given by him was, to say the least, implausible and his position deteriorated during cross examination. It is not difficult to see why the jury returned the verdicts that they did." 18 His Honour said that the complainant had been subjected to a "terrifying and degrading ordeal" (ROS 9). She had been profoundly affected by it. She was still receiving counselling and treatment. Whilst the crimes were described by his Honour as "opportunistic", the appellant's conduct was "predatory", "persistent", and "involved some subterfuge" (ROS 12). His Honour noted that there was no remorse.

The Issues. 19 There can be no doubt, as the Crown acknowledged, that the appellant now suffers from schizophrenia. He was diagnosed after he had been sentenced. He has been given treatment in prison. The argument of the appellant, in respect of fresh evidence, rests upon the following propositions: · First, that mental illness is relevant in various ways to the sentencing discretion. · Secondly, that the schizophrenia which has since been diagnosed, was present, but not recognised, at the time the offences were committed. · Thirdly, that the offences, at least in part, can be explained by reason of the schizophrenia. · Fourthly, that because the appellant's mental condition was not recognised, it was not taken into account by the sentencing Judge. · Finally, the sentencing discretion has therefore miscarried. The sentence should be quashed and the appellant resentenced by this Court. 20 There can be no doubt as to the first and fourth propositions. When Mr Rigby was sentenced there was no suggestion that he was suffering from mental illness. Had he been suffering from mental illness, it would have been relevant to the sentencing discretion in various ways (R v Hemsley [2004] NSWCCA 228, para 33). In R v Henry (1999) 46 NSWLR 346, Wood CJ at CL said this: (para 254) "... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing." 21 That statement was reaffirmed by Spigelman CJ in R v Israil [2002] NSWCCA 255, where the following was said: (para 23) "23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - 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." 22 Mental illness is also relevant in a number of other ways. In Anderson v R [1981] VR 155, Young CJ endorsed the remarks of his predecessor in an unreported decision (Mooney), namely: (at 159) "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." 23 Mental illness, even where not relevant to the offence, may be relevant to the sentence imposed. In R v Israil, already referred to, the Chief Justice endorsed the following remark of Malcolm CJ in R v Lauritsen (2000) 114 A Crim R 333, where the following was said: (para 48) "... mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence." 24 Moreover, as the Chief Justice noted, a custodial sentence may weigh more heavily upon a mentally ill person, and that may be material in determining the length of the sentence (R v Israil (supra) (para 26)). See also R v Pitt [2005] NSWCCA 304, per Hall J at para 22. 25 Affidavits have been filed, annexing medical reports. The appellant relies upon them to establish the second and third propositions, namely, that he was suffering from schizophrenia at the time he committed the offences and that it affected his ability to make rational judgments and exercise self control. Before going to that material, one should be clear as to the circumstances in which fresh evidence may be received after a sentence has been passed. 26 In R v Kenneth William Bailey (1988) 35 A Crim R 458, leave to appeal was sought in circumstances where the person sentenced had been diagnosed with AIDS shortly after the sentence had been imposed. The Court of Criminal Appeal was asked to admit fresh evidence relating to that diagnosis and to resentence the offender. On ordinary sentencing principles, ill health is a relevant matter since it may make imprisonment more burdensome. Lee J (with whom Maxwell and Yeldham JJ agreed), said this: (at 462) "... In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. ..." 27 In R v Ehrenburg (unreported, NSW CCA, 14.12.90), the offender was pregnant at the time the sentence was imposed. Evidence concerning early complications in her pregnancy was placed before the sentencing Judge. After sentence had been passed, and whilst in the precincts of the Court, she began to haemorrhage. Significant complications developed. The baby, when born, was found to be suffering from a deformity of both hands and feet requiring partial amputation. Application was made to place before the Court fresh evidence in respect of these events and the hardship they occasioned to the appellant. Loveday J (with whom Gleeson CJ and Samuels JA agreed), stated the principle in these terms: (at 5) "One circumstance that can make them relevant is if the subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing. An example of this is where a prisoner is sentenced not knowing that he is suffering from AIDS. The subsequent diagnosis means that his period in custody will cause him additional hardship. In such cases this court has reduced the sentence imposed: See eg Reg v Cooper (CCA, unreported, 9 November 1988). In the present case, I believe that the subsequent events can be seen as a manifestation of something that was present but not fully appreciated at the date of sentence." 28 His Honour emphasised (as did Samuels JA) that the power should be exercised sparingly. He said this: (at 7) "It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177)." 29 A number of issues therefore arise: · First, was the appellant, as a matter of probability, suffering from schizophrenia at the time of the offences? · Secondly, if he was, did that condition, as a matter of probability, affect him in a way that diminishes his culpability in respect of such offences? · Thirdly, if he was suffering from schizophrenia at the time of the offence, and whether or not it diminished his culpability, has it made gaol more burdensome for him? · Fourthly, can it be said therefore that the sentencing discretion has miscarried? Is some other sentence warranted in law? (s6(3) Criminal Appeal Act 1912) 30 I will deal with each issue in turn. When examining the first and second issues, I will describe what happened chronologically, drawing upon material filed by either party. I will, at the same time, examine the Crown's contentions. The Crown opposes the reception of fresh evidence upon two bases. First, it asserted that the schizophrenia, if present, was not present to any significant degree and not material. Secondly, the Crown said that the evidence was available to the legal representatives of the appellant at the time of sentencing. It was not uncovered and pressed through an absence of due diligence.

Was the Appellant Schizophrenic in February 2002? 31 The appellant was born in Canberra on 8 July 1978. He was the youngest of four children. His mother was a teacher. He had a happy childhood. There was no history of mental illness in his family. He left school at the end of Year 10. He thereafter worked in various jobs, performing labouring work. By the time he left school, he was using cannabis regularly. 32 On 27 March 1997, the appellant, then aged 18 years, pleaded guilty to robbery in company. He saw a psychologist, although he acknowledged that he lied to her in various ways which he thought would advantage him. He was ultimately sentenced to five years imprisonment with a minimum term of two years. He was released on parole on 25 March 1999. The offences which are the subject of this appeal were committed whilst he was on parole, although his parole had almost expired. 33 After his release from gaol, Mr Rigby said that he ceased using cannabis. His parents, however, noticed changes in him. Dr Rosalie Wilcox, a psychiatrist attached to Long Bay Gaol, recorded the following comments from the appellant's parents in her report of 15 July 2004: (p3) "I have spoken to Mr Rigby's parents who report noticing a difference when he came out of gaol in 1999 and that he was very anxious and did not like social situations and family gatherings. They report he would often sit by himself and laugh as though sharing a joke but only with himself." 34 An affidavit was filed by the appellant's mother. She stated that before the offences the appellant behaved oddly. She added: "2. ... He often had mood changes. He would come home from work and say 'they've put security in at work; they're watching me'." 35 Mrs Rigby added: "3. There were times before the offence when Michael had been away from home for a few days and he'd come back unclean and scruffy. He had not been like that normally. He'd sleep and you'd have trouble getting him moving. He'd sleep all day if you'd left him. This was in contrast to the other times when he was working and keeping long hours but he was able to travel long distances and work and keep on top of it." 36 In about February 2001, Mr Rigby began working for a printing company in Sydney. A year later, at the time of the offences, he was still employed by that company. As I will shortly explain, each doctor who has expressed an opinion on Mr Rigby's mental condition, has identified his employment with the printing company as an important aspect of his history in terms of understanding the schizophrenia which was later diagnosed. 37 However, reconstructing what happened to Mr Rigby whilst so employed in the weeks and months before the offences is not easy. His accounts to doctors have not always been consistent. But more than that, what he has said about what happened must be approached with caution. As already mentioned, he has acknowledged that he deliberately lied to a psychologist in 1997 when interviewed in the context of the armed robbery offence. He lied because he saw advantage in doing so. It is also now plain that his account concerning the circumstances leading to intercourse with the complainant was false, and again to his advantage. 38 That said, there is, nonetheless, a certain consistency in the history he has provided to a number of doctors over a number of years. His account, in some cases, is corroborated in one way or another. 39 First, he repeatedly described the odd life he was leading in the period shortly before the offences were committed. Mr Rigby provided Dr Westmore with the following history: (report 16.9.05: p5) "He then told me that in August 2001 he was homeless. He left the previous workplace and in March 2001 he was travelling, possibly repeatedly, between Sydney and Newcastle by train. He said he felt comfortable being around people on trains and he felt people could understand his thoughts. He said he now understands this is part of his mental illness, schizophrenia. He said he was also crying a lot of the time." 40 Dr Lucas, retained by the Director of Public Prosecutions, received a similar history, although referable to a shorter time period: (report 11.5.06: p5) "At the time of the offences he was living in a backpackers hostel in Sydney. He had been there one week after living on trains for a month. His parents had asked him to leave home because he was gambling his wages and talking about problems at work. He was not paying his bills. When he left home he lived in a Christian hostel where he did not have to pay, then in another hostel, apparently briefly." 41 The appellant's mother, in her affidavit, said that her son left home a short time before the offences. She understood that he was boarding in Sydney. It is apparent from the circumstances of the offences that, in the early hours of 28 February 2002, Mr Rigby was on a train travelling to Newcastle when he met the complainant. 42 The second aspect concerns the difficulties experienced by Mr Rigby at work. When first examined by Dr Westmore on 22 January 2003, he provided the following history: (report 27.1.03: p4) "He said he had some problems at the time, particularly at work. There was some conflict at work which had been ongoing for the previous ten months. This was to do with rates of pay and relationship problems he and other workers were having with a supervisor." 43 When, in June 2004, Mr Rigby was admitted to D Ward (the psychiatric ward at Long Bay Gaol) he told the psychiatrist, Dr Rosalie Wilcox, the following: (report 15.7.04: p3) "... It would appear that he had some altercations with his boss in a printing company and that his boss treated him rudely on several occasions. He appears to be preoccupied with this workplace incident to the extent that he is unable to discuss anything else other than occasional mentions of his family." 44 By the time Dr Westmore examined Mr Rigby for a second time, on 12 September 2005, he had already been diagnosed as suffering from schizophrenia and had been receiving treatment for more than a year. Dr Westmore's second report included the following history: (report 16.9.05: p3) "Mr Rigby said he walked out of work after Matthew verbally abused him. He said he was in a 'state of shock'. He told me he returned to where he had been living, that is in the hostel, and he said he took 'a little child our without asking her parents'. He said the 'confusion' from the workplace situation affected what he did after he left the workplace on that occasion. He said he felt he was going to do something irrational. He then took the child back to the hostel. He said he had looked after the child previously with the permission of the child's parents." 45 Dr Westmore's report continued: (p3) "I asked Mr Rigby what occurred in relation to the offending behaviour. He said it was all based around his work and his 'confusion'. He said on 26 February Matthew 'went off his head at me'. On 27 February he reports he was sexually assaulted in the hostel. He went to work but he wanted an explanation, an apology. He said he was looking at the clock in a certain way and he thought he was giving people signals that somebody should apologize to him." 46 Dr Lucas who, it will be remembered, saw Mr Rigby in May 2006, recorded the following in his report: (report 11.5.06: p5) "... He was talkative and almost immediately mentioned his employment at Principal Press, going on to talk about his circumstances in the period before the offences." 47 The report of Dr Lucas continued: (p6) "He felt as though he was being tortured by this and belittled by Mr Dickson, believing that Mr Dickson was doing this because he had not been paid correctly. He thought these matters were linked." 48 Dr Lucas added: (p7) "... However, on 26 February 2002, Mr Dickson went off the deep end at him, worse than he had done previously, calling him names and blaming him for some error. ... The effect of the abuse that day was 'the end of my being who I was'. He thought of Mr Dickson and had recurrent thoughts of 'the hard or the easy way' and 'superintendent'. He had 'pictures' of what Mr Dickson was doing to him." 49 Dr Lucas, commenting upon this history, said this: (p14) "I note from the file that Mr Rigby has had symptoms of psychosis since beginning treatment but generally has improved. One thing has not changed, obsessive preoccupation with his previous workplace." 50 This, then, was the context within which Mr Rigby sexually assaulted the complainant. I should defer, for the moment, the issue of whether Mr Rigby was, as a matter of probability, suffering from schizophrenia on 28 February 2002 when he committed these crimes and, if he was, whether that mental condition can be linked to his behaviour that night. Before addressing those questions, it is instructive to examine what happened thereafter. 51 Having been arrested, the appellant was given bail. He returned to live with his parents. His obsession with his perceived mistreatment at work was also evident to his parents. His mother, in her affidavit, described her son's behaviour in the period after his arrest, and whilst awaiting trial: "6. During the time he was on bail Michael would come home and quite often lay on the lounge room floor and go on about Matthew the supervisor at work. Michael reckoned that Matthew had been sent by the transit police to get information on him. It was common for him to say this to us. You couldn't reason with him. He'd say, 'you don't understand' and go to his room. It was hard to make sense of what he was saying." 52 His behaviour remained odd. His mother said this: "7. Frequently Michael would come home quite agitated and annoyed with things but he didn't say a lot about it. We couldn't reason with him. At first he kept saying, 'when they see the video they'll know the truth'. Then he'd say, 'you can't lie the truth will come out'. Michael can't understand that people can and do lie and that his word alone, in the absence of other evidence, is not enough. He believes that he should be believed. 8. Michael would fixate on things and there is no way he can be diverted. Nothing else exists until he sorts out the problem with Matthew the supervisor at work. Whilst he was living with us he was commuting to Newcastle and his job at the printing shop. I'm not sure what his circumstances were at work during this time." 53 On 25 September 2002, the bail conditions were varied to enable Mr Rigby to live with his sister. Her husband had a fencing business in which he employed the appellant. 54 The trial began on 27 November 2002 in Newcastle. Dr Wilcox, in her report of 15 July 2004, recorded the following comment made by Mr Rigby's parents concerning difficulties which arose during the course of the trial: (p3) "They report that at the time of his trial his barrister was concerned about his ability to receive instructions from Mr Rigby and organised for a psychiatric report to be done, however Mr Rigby refused to participate in this report and so he was tried and sentenced." 55 The appellant gave evidence on 3 December 2002. The Crown, in its submissions, made the following comment upon that evidence, which I believe is accurate: (para 39) "Although rejected by the jury, his evidence was clear, consistent and lucid. Furthermore, the applicant gave no account in his evidence of being preoccupied with issues concerning his employment or (naturally, in the light of his plea) of using the phrase 'the hard way or the easy way'." 56 The jury returned its verdict on 4 December 2002 after a short deliberation. The matter was stood over to deal with submissions on sentence. Mr Rigby was remanded in custody. Whilst in custody, he was assessed on 6 December 2002 by a team which included two psychologists. The notes of that assessment included the following observations: Affect - restricted; controlled; inappropriate laughter. Speech - normal rate & flow Thoughts - logical & sequential. Sleep - broken; light sleep. Appetite - (ticked) Orientated - T (ticked) P (ticked) P (ticked) future (crossed) 57 The solicitors acting for Mr Rigby arranged for him to see Dr Westmore. Reference has already been made to that examination which took place on 22 January 2003. Dr Westmore noted "obvious levels of anxiety and mild agitation" (p2). Mr Rigby maintained his innocence, although he became "noticeably agitated when talking about the offending behaviour" (p5). He was able to maintain good eye contact and speak spontaneously and expansively. Dr Westmore added: (report 27.1.03: p4) "... He reports that his appetite, weight, sleep patterns and energy levels are all normal. He denies any thoughts of self harm. No psychotic features such as delusions or hallucinations were displayed or described and he presented as being an alert and attentive historian." 58 Dr Westmore described the way in which he presented in these words: (p4) "... His affect was intense, anxious and very focused although he became obviously more relaxed as the interview progressed. His mood state was generally restricted and possibly subdued but I did not think he was suffering from a major depressive illness and he could also demonstrate some smiling behaviour. There were occasions when I wondered whether he was smiling in a slightly incongruous fashion. This occurred about half way through the interview but at this time I am unable to place too much significance or emphasis on this aspect of his presentation having seen him on only one occasion." 59 Dr Westmore's conclusion was in these terms: (p5) "I am unable to identify any psychiatric or psychological condition present in Mr Rigby at the time of the offending behaviour. I would however, be recommending that he see a psychologist while in custody, he is obviously highly anxious and having some trouble adjusting to being in prison at this time." 60 Dr Westmore was therefore not called when submissions on sentence were made, and his report was not tendered. The appellant was sentenced on 12 March 2003. 61 On 24 December 2003, after a year of incarceration, Mr Rigby was examined by Dr Diamond, psychiatrist. The report of Dr Wilcox incorporated Dr Diamond's findings, which were as follows: (report 15.7.04: pp1-2) "Dr Diamond noticed evidence of acute psychosis with delusional beliefs, somatic delusions and thought disorder. He reported that he was paranoid, suspicious and insightless and refused to co-operate with an interview. He talked of having syphilis and the evidence of this was that he could feel movement in the skin of his forehead and in his eyebrows. He refused to divulge any information saying that he needed to see a lawyer and not a doctor. With subsequent reviews by Dr Wilcox and Dr White, he remained evasive, guarded and suspicious and thought disordered. He talked of having been treated for his Chlamydia, which had improved his eyesight, his muscle strength and several other things. He talked of having been suffering from undiagnosed Chlamydia for many years and that he felt significantly better once treated for this. He continually refused to discuss other issues saying that it was a workplace issue that needed to be discussed with the solicitor and he did not want to talk to medical staff. He refused any offer of medication and maintained that there was nothing wrong with his mental state." 62 Dr Wilcox saw Mr Rigby on 9 February 2004. She found him "very thought disordered, evasive and guarded". She certified him mentally ill. She said this: "He was preoccupied with various somatic issues and was focussed on seeing a solicitor to discuss work issues as he believes all his problems relate to something that occurred at work. He has refused to take medication. He does not believe he has a mental illness. He has been overly concerned about diseases." 63 On 22 July 2004, the Mental Health Review Tribunal conducted a hearing under s86 of the Mental Health Act 1990. Dr Wilcox prepared a report for that hearing (15 July 2004). At the time she did so, Mr Rigby was in Ward D, the psychiatric ward at Long Bay Hospital, where he remained for a number of months. Dr Wilcox described his mental state upon admission in these terms: (report 15.7.04: p3) "... There was reduced eye contact and limited rapport developed. His speech was of normal speed, volume and rhythm. He reported his mood as normal. His affect was somewhat incongruent. He was preoccupied, anxious, guarded and suspicious. He was easily tearful. He denied any ideas of harming himself or others. He was noticeably thought disordered with derailing and loose associations. The content of his thought appeared to include somatic preoccupation, probably delusional in intensity regarding Chlamydia and its effect and the affect of antibiotics on his skin; in the muscles on his forehead. He also seemed quite persecuted but would not elaborate. He denied any hallucinations and there was no clear evidence at interview that he was hallucinating. He had no insight into his illness and his judgement appears affected." 64 Mr Rigby was, at this point, still refusing medication. In these circumstances Dr Wilcox expressed the following view: (p4) "We are of the opinion that Mr Rigby suffers from schizophrenia, which is chronic and untreated. His illness is characterised by preoccupation with minor events and somatic concerns and thought disorder. It would appear that his illness has impacted on his ability to socialise in the gaol community but also on his ability to participate in his trial. There is also a likelihood from information from his father that his illness was associated with his index offence. We are of the opinion that Mr Rigby requires ongoing treatment in the Long Bay Hospital as he has continued to refuse to voluntarily accept medication. Mr Rigby's illness has already caused him significant harm and possibly caused harm to the victim of his offence. We are of the opinion that continued treatment is necessary to prevent further harm." 65 When Dr Westmore saw Mr Rigby again in September 2005, he had available the prison medical file and other material. In the light of that material, he formed a different view from that expressed in his report of 27 January 2003. In his opinion, the appellant was suffering from schizophrenia at the time of the offence. He said this: (report 16.9.05: p6) "Mr Rigby's longitudinal history supports the proposition that he suffers from a schizophrenic illness, probably of a paranoid type. It is likely he first developed signs of mental illness some time in the late 1990s, that opinion is supported by history given to others by his parents. They noticed changes in him in 1999. Mr Rigby also provides a history supportive of the proposition that he was mentally ill prior to the offending behaviour and I refer to relevant aspects of that history which I have noted in this report. He talked about, for example, being on trains and believing that people on trains could understand his thoughts. In relation to your specific questions I would advise you that it is my opinion that Mr Rigby was mentally ill at the time the offending behaviour occurred and that he remains mentally ill although there has been some positive response to treatment." 66 Dr Westmore then addressed the issue whether the schizophrenia had affected Mr Rigby's behaviour in sexually assaulting the complainant on 28 February 2002. His view was as follows: (p6) "Trying to determine what relationship if any his mental illness has in relation to the offending behaviour is more difficult. There is in his mind a direct and positive relationship between thought he was having arising from workplace difficulties and the offending behaviour itself. There may be a link between some thoughts he was having arising from his workplace and some thoughts he was having at the time the offending behaviour occurred and certainly if he was acutely psychotic at the time of the offending behaviour, then his ability to think in a clear and rational fashion is likely to have been affected. This proposition is supported by other aspects of disordered thinking he appears to have had at and around the time the offending behaviour occurred preceding that time. The statements he says he made to the victim about being a supervisor and that he could do it 'the hard way or the easy way' may also have a non psychotic meaning or explanation. The reported sexual abuse he experienced in the hostel and its relationship to the offending behaviour is also unclear. There is probably no direct link but that event would have been disturbing and distressing for him and would have unsettled him further." 67 His conclusion was in these terms: (p7) "I have no evidence that he was acting on delusional beliefs or auditory commands in relation to the victim and at this stage nothing to clearly suggest that he might have a mental illness defence to the sexual assault charges. Nevertheless, the fact that he was mentally ill and that his illness would have impacted on his thought processes may have relevance to the sentence he received and possib[ly] to the conviction although that is obviously a matter for his legal representatives." 68 Dr Lucas, retained by the Crown, appeared to share Dr Westmore's view. When addressing the issue of whether Mr Rigby was suffering from schizophrenia prior to the offences, he said this: (report 11.5.06: pp 14 -15) "Mr Rigby's diagnosis of chronic paranoid schizophrenia is well established. The question of concern in relation to his appeal is when the illness began. Paranoid schizophrenia often has an insidious onset with prodromal changes in a person's functioning and mental state being recognised only in retrospect. It is my opinion, on the balance of probabilities, Mr Rigby's mental illness began prior to the offences of 28 February 2002." 69 Was that disease linked to Mr Rigby's offending behaviour? Dr Lucas, perhaps more tentatively than Dr Westmore, appeared to support such a link. He said this: (pp 15-16) "What he said to me indicated difficulty comprehending aspects of his offences. Some of his ideas made it difficult for him to accept responsibility in a normal way. It is likely this would have prevented him expressing remorse at the time of sentencing. I think the history we now have of his illness could well have been relevant at the time he was sentenced. Dr Westmore and I agree on this issue. We also agree that it is difficult to decide whether he might have had a defence of mental illness to the charges of sexual assault. He was not psychiatrically assessed at pre-trial. Although one cannot exclude that an assessment may have led to such a defence being raised, on the basis of my interview with Mr Rigby I could not form an opinion that he had such a defence. However, if he was psychotic, as appears probable, with the degree of confusion and turmoil he described, it is possible this may have impaired his judgement and control, but to what extent is difficult to decide in retrospect." 70 There can be little doubt, on this material, that Mr Rigby was suffering from schizophrenia at the time he committed the offences. The more difficult issue is the extent to which that illness provides, as a matter of probability, an explanation (or part of the explanation), for his behaviour diminishing his culpability. His actions were predatory, persistent and displayed a certain cunning. His comment afterwards ("I just raped you, hey.") demonstrated, I believe, that he knew what he was doing and that it was wrong. It would appear that his schizophrenia was evolving and became worse with time. At the time he committed the offences he was plainly able to function at a certain level. He later deteriorated such that his illness became more obvious. 71 Nonetheless, I accept as a probability that at the time of the offence his ability to think rationally about what he was doing and to control his impulses was impaired by the mental illness from which he was then suffering. The incident at work two days before appears to have profoundly affected him. The proximity of that incident and the odd behaviour which followed, including travelling all night on trains between Sydney and Newcastle, suggests that his mind was in some turmoil when these offences were committed. 72 The material which the appellant seeks to rely upon as fresh evidence meets the test for the admission of fresh evidence. The condition was present at the time he was sentenced. It was not recognised and therefore not taken into account. It can now be seen, nonetheless, that it was relevant to the sentencing task. I see no absence of diligence on the part of Mr Rigby's solicitors. 73 I then turn to the issue of resentence and whether some other sentence was warranted in law (s6(3) Criminal Appeal Act 1912).

Was a Different Sentence Warranted? 74 It does not follow from a finding that there was mental illness, that a different or lesser sentence should be imposed. Mental illness may diminish the culpability of an offender and may, at the same time, disclose the danger that the offender presents. In Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court said this: (at 476/7) "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is the factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 75 It is useful, in this context, to repeat the words of Malcolm CJ in R v Lauritsen (supra) where the following was said: (para 48) "... mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated." 76 In R v Engert (1995) 84 A Crim R 67, Gleeson CJ (Allen and Sully JJ agreeing) said this: (at 68) "Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision." 77 The Chief Justice added: (at 71) "... 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." 78 Does Mr Rigby, by reason of the mental illness which is now apparent, represent a danger to the community? Mr Rigby's crimes were brutal and terrifying. However, they were committed at a time that he was undiagnosed and untreated. His illness has since been recognised and he now accepts treatment. He filed an affidavit which included these paragraphs: (Aff 1.6.06) "4. After Junee I was brought to Long Bay and after the first three weeks here I went to D Wing in the prison hospital. I was treated for schizophrenia. This was the first time my illness was medicated. I didn't want to take it at first but now I'm glad I did. I was in hospital for about six months. I was prescribed Olanzapine. 5. After being discharged from the prison hospital I was taken to Wing 3 in the MSPC. I felt like I was then able to work. I was clear-minded. I started work at the Bakery straight away. I worked there for about six months, rolling dough. I like to do the same job. I know what I'm doing. I then spent four months in Cortex as a table hand, folding. It was boring. I wasn't feeling the best so I became unemployed for about six to eight weeks on a medical certificate. I then returned to the Bakery where I've remained since. 6. At the time when I returned to my bakery job, they lowered the dose of the medication. I felt better. I now take 500 mg of Solian. That's the lowest dose the doctor will prescribe. I was taking anti-depressants when I was on the higher dose of Solian. Now I don't take any anti-depressants. 7. I've completed the PEP (Personal Empowerment Programme) Course. It was a little bit difficult. It wasn't entirely relevant to my problems. It was general. I need something to target my problems. 8. I work 5-6 days per week. I start 7.30am - 2.30pm. I enjoy it. I feel comfortable at work." 79 Neither Dr Westmore nor Dr Lucas suggested that Mr Rigby is dangerous. However, the medical reports fundamentally deal with other issues, not the issue of dangerousness. Dr Lucas did say this concerning his future: (report 11.5.06: p14) "Mr Rigby is suffering from chronic paranoid schizophrenia. He has improved with treatment which initially had to be compelled. The prognosis is guarded and he will need treatment in the long term." 80 As at May 2006, Mr Rigby was classified C1. He expected, within a matter of months, to be classified C2. These classifications do not suggest that the gaol authorities regard him as a danger, at least within the context of that institution. 81 Although the information is spare, Mr Rigby, as a treated schizophrenic, does not, on the material before this Court, represent an obvious danger. However, it does not necessarily follow that the sentence imposed upon him should be reduced, reflecting his reduced moral culpability. His crimes were serious and they had dire consequences for the victim. In my view, it is appropriate to intervene and resentence. However, the appropriate adjustment, reflecting the finding of mental illness, is not to the terms which were imposed in respect of each count, but to the allowance made for special circumstances. I believe the appropriate sentence in respect of each count is a term of 8 years with a non parole period of 4 years expiring on 1 December 2006. It will be a matter for the State Parole Authority once Mr Rigby becomes eligible for parole, to determine whether, with appropriate supervision, Mr Rigby should be released to parole in the light of the material then available, including medical evidence.

There should be an extension of time for the filing of the application for leave.

The sentence of 8 years imprisonment on each count should be confirmed, but the non parole period on each count should be quashed and, in lieu thereof, there should be a non parole period of 4 years on each count, commencing on 2 December 2002 and expiring on 1 December 2006. 83 JOHNSON J: I agree with Kirby J. **********

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