Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Offences of stealing, fraud and forgery - Whether trial judge correct to conclude that appellant had failed to establish defence of insanity - Assessment of evidence in relation to bipolar disorder - Turns on own facts

Criminal law - Sentence - Stealing (13 counts) - Fraud (one count) - Forgery (one count) - Sentence of 3 years' imprisonment - Whether mental condition of appellant sufficiently taken into account - Whether sentence manifestly excessive

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Criminal Code (WA), s 27, s 378(9)(b), s 409(1)(d), s 473(1)(a)

Criminal Procedure Act 2004 (WA), s 118

Debt Collectors Licensing Act 1964 (WA)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1

1 STEYTLER P: I have had the advantage of reading the judgment of Miller JA. For the reasons he gives, I agree that the appeal against conviction should be dismissed. However, I have formed a different opinion as regards the appeal against sentence. In giving my reasons, I will not repeat all that Miller JA has said concerning the circumstances and evidence before the sentencing judge.

2 The appellant was convicted, after a trial, of 15 offences. His offending behaviour took place between 21 December 2000 and 31 January 2003. The appellant and his wife had conducted a debt collecting business known as Debtors Ledger Services. Counts 1 to 11 involved stealing of money from clients of that business between 21 December 2001 and 1 June 2001. The appellant was obliged to pay all debts collected by the business into a nominated trust account. He was entitled to withdraw from that account sufficient to cover collection expenses, commission, fees and other charges. He was obliged to pay the balance of any amount collected on behalf of a client to that client within 45 days of receipt. Instead, over the period mentioned, he drew cheques on the trust account so as to discharge personal debts. He also drew cash for personal purposes. The trust account was consequently frequently overdrawn. The total amount stolen was about $27,500.

3 Count 12 was one of fraud. The appellant and his wife owned land in Claremont. A company, Solitaire Investments Pty Ltd (Solitaire) had an unregistered mortgage over the land. This was protected by a caveat. On 29 November 2001, the appellant prepared a withdrawal of caveat and executed it by forging Solitaire's common seal. He did so in order to obtain a loan from a third party, secured by a mortgage over the Claremont land.

4 Counts 13 and 14 involved the theft of money that had been received by the appellant subject to a direction that it should be applied to a particular purpose. On 7 November 2002 the appellant received a cheque for $34,000, subject to a direction that it be paid to an identified third party. He fraudulently endorsed the cheque so as to make it payable to himself and deposited it in his own account. On 19 December 2002 he did the same thing with a cheque for $1,663, also given to him subject to a direction that it be paid to an identified third party.

5 Count 15 was one of forgery. This involved another fraudulent endorsement of a cheque delivered to the appellant. He endorsed the cheque to himself in an attempt to obtain money for personal purposes. Payment on the cheque was stopped before it could be deposited.

6 The total amount that was unlawfully obtained by the appellant was approximately $63,000. He attempted to obtain a further $15,000 by his fraudulent endorsement of the cheque the subject of count 15. In addition, there was the temporary loss, by Solitaire, of its security. In each case the offence involved a breach of trust.

7 The more important of the appellant's personal circumstances were these. At the time of sentencing he was 50 years old. He had no record of prior offending, nor any significant history of dishonesty. He was a dedicated family man. He was generally well regarded by those with whom he dealt. He showed some remorse for his conduct, although this was, to a degree, contradicted by his pleas of not guilty. He has made full restitution in respect of the stolen money. He suffered from depression, as I will later explain.

8 The appellant was sentenced to terms of 8 months' imprisonment on count 1, 2 months' imprisonment on each of counts 2 and 3, 12 months' imprisonment on count 4, 2 months' imprisonment on each of counts 5 to 11, 20 months' imprisonment on count 12, 2 years' imprisonment on count 13, 8 months' imprisonment on count 14, and 12 months' imprisonment on count 15. In order to take into account the appellant's personal circumstances and the application of the totality principle, the sentencing judge directed that the terms imposed on counts 4 and 13 should be served cumulatively, with all other terms being served concurrently with each other and with the terms imposed in respect of counts 4 and 13. This gave rise to a total sentence of 3 years' imprisonment. The appellant was made eligible for parole.

9 There were initially two grounds of appeal against sentence. The first contended that the sentencing judge erred in failing to find that the appellant suffered from bipolar disorder. The second contended that the sentencing judge erred in disregarding the fact that the appellant suffered from bipolar disorder when failing to impose a suspended term of imprisonment or other non-custodial sentence. The sentencing judge found that, on the evidence led at the trial, the appellant had not suffered from bipolar disorder at any material time. For the reasons given by Miller JA, the appellant's challenge to that finding cannot succeed. Both grounds consequently fail.

10 However, in the course of argument on the appeal, the appellant was given leave to add a third ground. This is to the effect that the sentence was manifestly excessive having regard to the 'background mental state of the appellant'. The 'mental state' referred to was one of depression. Evidence that the appellant suffered from this illness came from two psychiatrists, Dr Mircea Schineanu and Dr Roy Kolnik.

11 Dr Schineanu interviewed the appellant on 25 July 2005, well after the offending behaviour. He was consequently unable to express any first hand opinion on the appellant's mental state at the time of his offending behaviour. He diagnosed the appellant as suffering from 'mild/moderate' depression at the time of his interview. He interviewed the appellant on a second occasion on 1 December 2005. He said that there had, by then, been little clinical improvement in respect of the appellant's psychiatric condition.

12 Three reports were provided by Dr Kolnik. None of these was tendered at the trial, although two of them appear to have been relied upon for sentencing purposes. The first of the reports is dated 12 November 2003. Dr Kolnik had interviewed the appellant on four occasions between 1 September 2003 and 11 November 2003, after the period of the appellant's offending behaviour. He made a diagnosis of bipolar mood disorder which, given the finding of the trial judge and the failure of grounds 1 and 2, cannot be relied upon. However, in his report, Dr Kolnik mentioned that the appellant had been obtaining psychiatric and psychological help 'over the years' and, in a later report dated 25 March 2007, he mentioned that the appellant had struggled over time with recurrent depressive periods. In his third report, dated 12 February 2008 (after the appellant had been sentenced), Dr Kolnik mentioned that the appellant had responded well to medication but that the impact of prison life on him was likely to increase his general levels of anxiety and could impact negatively upon his maintenance of a stable mood state.

13 The psychiatric help to which Dr Kolnik referred had been provided by Dr Daniel Shub and Dr Jonathan Rampono, both of whom gave evidence at the trial. Dr Shub saw the appellant on 40 occasions between 21 April 1993 and 20 June 1995. He said that the appellant had consulted him in respect of personal psychological issues, including self esteem, vocational disappointment, his marital relationship and parenting issues. Dr Rampono saw the appellant on 31 occasions between 17 July 1995 and 13 November 1996. He said that the appellant had then been suffering from an adjustment disorder as a consequence of being struck off the roll of legal practitioners and the family and social consequences of that event.

14 The upshot of this evidence seems to me to be that there is little to suggest that, at the time of his offending behaviour, the appellant suffered from any significant form of depression. Moreover, there is no evidence that, if he did, it played any causative role in his offending behaviour. However, there is evidence that, at the time of sentencing, the appellant suffered from mild/moderate depression (although Dr Kolnik said, in his first report, that the appellant's mental state did not then reflect an active depressive illness) and that imprisonment might weigh more heavily on him as a consequence.

15 The cases referred to by Miller JA (Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385) establish that a serious psychiatric illness not amounting to insanity may be relevant to sentencing in a number of different ways. It may reduce moral culpability, it may have a bearing on the kind of sentence to be served, it may demonstrate that the offender is not an appropriate vehicle for general or personal deterrence and it may result in the sentence weighing more heavily on the prisoner than it would on a person in normal health. The evidence in this case seems to me to be insufficient to establish any reduction in the appellant's moral culpability or to suggest that he is not an appropriate vehicle for either general or personal deterrence. Nor is his illness such as to have the consequence that a period of imprisonment, if otherwise appropriate, should not have been ordered. However, as I have mentioned, it will mean that his imprisonment will weigh more heavily on him than it would on a person in normal health.

16 It may be accepted, as Miller JA has said, that the trial judge gave no weight to the appellant's depressive condition in this, or any, respect (although he did mention it in the course of saying that there was nothing of a psychiatric nature that explained the appellant's offending or reduced the culpability of his behaviour). That raises the question whether his failure to make any allowance for it in mitigation was material and whether a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

17 In my respectful opinion, only limited weight could be given to the appellant's depressive illness in the circumstances of this case. The illness was not serious (in a clinical sense) and its only consequence was that it was liable to increase the appellant's anxiety while he was in prison. As I have mentioned, the evidence showed that the appellant had been responding favourably to medication.

18 As Miller JA has mentioned, the range of sentences imposed in respect of offences of a broadly similar character has been reviewed, relatively recently, in Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [37] - [44] and in Collins v The State of Western Australia [2007] WASCA 108. However, the majority of the cases there reviewed were a good deal more serious than the offending in this case. For that reason, it is helpful to review a number of the cases involving smaller frauds.

19 In R v Wilkinson (1996) 85 A Crim R 353 the offender was convicted, after pleading guilty, on 15 counts of stealing as a servant and three counts of making a false entry in the books of a corporation with intent to defraud. He had been the general manager of the company from which he stole. Ten of the counts of stealing as a servant related to unauthorised cheques totalling $21,643 drawn by the offender in favour of himself or a business that he had set up. These were falsely shown in the company's books as being for payments for repairs and maintenance. The other offences were of a broadly similar kind, including one involving the drawing of an unauthorised cheque from his employer for $35,000 paid into a share trading account in his own name. The total amount stolen by him was $118,450. Prior to sentencing he had made restitution of $94,019, largely from the proceeds of sales of assets that he had purchased with the stolen money. He had a prior conviction for stealing as a servant (in respect of which he had been sentenced to 5 years' imprisonment) and also one for fraud. He had been evasive and untruthful when interviewed by the police. His pleas of guilty had come very late. He was 36 years old at the time of his offending behaviour. He was sentenced to a total term of 2 years' imprisonment with eligibility for parole. After a successful State appeal, this was increased to a term of 6 years' imprisonment, with eligibility for parole (equivalent to one of 4 years' imprisonment under the present regime after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)).

20 In Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998), the offender was convicted, after a trial, on 30 counts of stealing as a servant. She had worked for a self-employed earth moving contractor and had been employed as a bookkeeper. A high degree of trust had been reposed in her. She was authorised to sign cheques on behalf of her employer. The total amount stolen was around $12,000. She used the money, in part, to pay debts that she had incurred. She had been having difficulty in paying these from her own resources. The offences occurred on a regular basis over the period of 18 months during which she was employed as a bookkeeper. She was 25 or 26 years old at the time of offending. She had no prior convictions. The offences were out of character and it was regarded as unlikely that she would reoffend. She was sentenced to a term of 2 years' imprisonment with eligibility for parole (equivalent to 16 months' imprisonment under the present regime). Her application for leave to appeal was dismissed.

21 In R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998) the offender was convicted on 48 counts of stealing as a servant. She had been employed on a part-time basis as an accounts clerk/bookkeeper. She altered her pay cheques after they had been signed by her employer. By this means she stole $30,200 over a period of around 18 months. Her offending had a significant impact on her employer. She had prior convictions for similar offending. She was a 30-year-old single mother with a 5-year-old child. She had made restitution of $18,370 and had made arrangements to pay off the balance. She readily admitted her offending and was unable to give any explanation for it. The money was spent on her child and on living expenses. She showed substantial remorse and attending counselling. Although it is not plain from the judgment, it appears that she had pleaded guilty to all counts at an early stage. She was sentenced to a community based order with supervision for 24 months and was ordered to pay compensation. A Crown appeal against sentence was dismissed. One of the factors that influenced the court was the effect that imprisonment would have on her child.

22 In R v Ottobrino [1999] WASCA 207 there were two offenders. One of them, Stellitano, was convicted of 84 counts of stealing as a servant. She stole a total of $284,000. The other offender, Ottobrino, was charged with 51 counts of stealing as a servant. She stole a total of $194,500. The money was stolen, over a period of four years, from a company owned by their family and other families. Stellitano was employed as a bookkeeper at the company. Ottobrino was employed at a bank, and had assisted in banking the stolen money. Both were sisters of the one of the directors of the company from which the money was stolen. Stellitano was also the wife of another director. The offending was described as systematic, deliberate, calculated and sophisticated. Restitution had not been made and there had been no pleas of guilty. Remorse was shown only at the time of sentencing. Both women were mothers of young children. Each of them had good antecedents and character references. Stellitano was sentenced to a total of 2 years' imprisonment (16 months under the present regime). Ottobrino was sentenced to a total of 18 months' imprisonment (12 months under the present regime). The Crown appealed. The appeal was dismissed by a majority. Ipp J, in his dissenting judgment, accepted that sentences imposed for offending of this kind ranged between 3 and 10 years' imprisonment. He considered that a term of between 5 to 6 years' imprisonment was appropriate.

23 In Pain v Forbes [2000] WASCA 260, the offender was convicted on 36 counts of stealing as a servant. She pleaded guilty at the first opportunity to all charges. She had altered the figures on her pay cheques after presenting them to her employer for signature. In this way she stole around $129,000. Her offending was unexplained. She was 55 years old. She had no prior convictions. She had been suffering from personal problems and was in what was described as a cycle of helplessness. She had used the money to repay debts incurred by her husband and the family business. She had undertaken to make full restitution. After a successful appeal she was sentenced to a term of 2 years' imprisonment, with eligibility for parole (equivalent to 16 months' imprisonment under the present regime).

24 In Davis v The Queen [2002] WASCA 298 the offender was convicted of 12 counts of gaining a benefit by fraud. She had been employed by a bank for 21 years. She ultimately became the bank's manager of personal lending. She had unlawfully manipulated the bank's computer system so as to obtain a benefit, in total, of $191,000. She pleaded guilty at the first opportunity in respect of all counts. Her antecedents were very favourable. She had been under financial strain when she committed the offences. She used money in her superannuation fund to make restitution and had repaid $110,000 by the time of sentencing. She was 39 years old at the time of sentencing and had two children aged 13 and 9 respectively. The trial judge described her offending as having had a significant impact on public confidence in the banking industry. He took, as his starting point, a term of between 5 and 6 years' imprisonment and then reduced this to 2 years (16 months under the present regime) in order to reflect the mitigating factors. The court dismissed the offender's subsequent appeal.

25 In George v Birtwhistle [2003] WASCA 75 the offender and an accomplice obtained a series of merchant vouchers and used these to perpetrate a complex and sophisticated series of frauds. There were 34 counts of fraud in all (19 of which were committed while the offender was on bail). A total of $59,000 was obtained. The money had disappeared. The offender showed little remorse, although he pleaded guilty. He was sentenced to a term of 3 years' imprisonment with eligibility for parole (2 years under the present regime).

26 In Stephens v The Queen [2004] WASCA 124 the offender committed three counts of attempted fraud. Two of these involved attempts to obtain credit by fraud in an amount of $8,000 from two different banks. The third involved an attempt to obtain a benefit of approximately $71,000 from a finance corporation. The offender had altered a birth certificate, driver's licence, taxation group certificates and a council rate certificate and used these to apply for a credit card. He then entered into a contract to buy a sports car valued at $71,000 by means of falsified documentation. He had a number of prior convictions for dishonesty and fraud. He had a problem with substance abuse and was involved with Gamblers Anonymous. His pleas of guilty came late. He was sentenced to a term of 2 years' imprisonment, after taking into account the operation of the transitional provisions.

27 In Nelmes v The State of Western Australia [2004] WASCA 191 the offender was convicted on six counts of stealing as a servant and 21 counts of fraud. The offending had encompassed a period of three years and had involved the altering of cheques. He had also created a fictitious company and directed false invoices from it to his employer. The offender stole a total of $309,671.44. He had been employed as a financial services administrator. He eventually told his employer what he had done. This disclosure was triggered by an enquiry made with respect to a particular account. He entered pleas of guilty on the fast-track and repaid a little over $5,000. The remainder was unlikely to be recovered. He had stolen in order to support his gambling habit. He was 38 years old, had a young family and was otherwise of good character. He showed significant remorse. He was sentenced to a total term of 4 years' imprisonment after allowing for the operation of the transitional provisions.

28 In Deville v The State of Western Australia [2004] WASCA 264 the offender was convicted of 23 offences involving a total loss of $102,788. He had made a series of applications for credit cards, store cards, personal loans and a hire purchase agreement in false names or using false particulars. He made a late plea of guilty and offered to make restitution. He was sentenced to a total term of 2 years' imprisonment, after allowing for the operation of the transitional provisions. Although the offences were serious, they did not involve breaches of trust. The offender was a young man who had wanted to ingratiate himself with friends and had attempted to live beyond his means. There was little prospect that he would reoffend. After a successful appeal, his sentence of imprisonment was suspended.

29 In Collins the offender was convicted, after pleading guilty, on 75 counts of stealing as a servant. He had been the strata manager of a real estate company. Over the course of about one year, he drew and signed 75 unauthorised cheques from a trust account in the name of his employer. The sums drawn ranged from $350 to $2,300, totalling $56,507. He had used the funds for personal expenses, including holidays to Bali. At the time of sentencing, he had suffered a heart attack some four months previously. He was also on anti-depressants. He had no relevant prior criminal record. He asserted that his employer had failed to pay him bonuses to which he was entitled and that he stole the money in order to 'even the ledger'. After a successful appeal, the offender was sentenced, by a majority, to a term of 1 year and 8 months' imprisonment, after allowing for the operation of the transitional provisions.

30 The cases are not entirely consistent. That is especially so when some of the sentences imposed in respect of these less serious offences are compared with those imposed for more serious offending of the kind considered in cases such as Hladin. However, they reveal that, in a case involving a sustained period of offending involving a breach of trust, a first offender who is a mature adult can ordinarily expect to receive a sentence of immediate imprisonment even when the amount stolen is comparatively modest (but still significant). In saying this, I should emphasise the use of the word 'ordinarily'. Every case will depend upon its own circumstances and these are infinitely variable. Also, the amount stolen will not necessarily be the most important consideration. Its importance will be influenced by such matters as the effect on the person or entity stolen from, the nature and degree of the breach of trust, the period of the offending, the reasons for it and the personal circumstances of the offender.

31 In the present case, the breaches of trust continued over a substantial period of time and affected a number of different people. They were

likely to result in a significant loss of confidence in the occupations in which the appellant worked. Concerns that had been exposed by the appellant's staff, and others, were effectively ignored. There was no plea of guilty. In these circumstances, even allowing for the factors in mitigation to which I have earlier referred, and for the fact that restitution has been made by the appellant, it seems to me that the individual terms of imprisonment imposed, and the total term of 3 years' imprisonment, were appropriate. I would not have imposed any different sentence.

32 I would accordingly dismiss both the appeal against conviction and that against sentence.

33 McLURE JA: I agree that the appeal against conviction should be dismissed for the reasons given by Miller JA. I agree that the appeal against sentence should be dismissed for the reasons given by the President.

34 MILLER JA: The appellant was convicted before Wisbey DCJ in the District Court at Perth on 18 August 2007 on an indictment which alleged 11 counts of stealing (being in each case the amount of a general deficiency) (Criminal Code s 378; Criminal Procedure Act 2004 (WA) sch 1 cl 8(3)), one count of fraud (Criminal Code s 409(1)(d)), two counts of stealing funds held under direction (Criminal Code s 378(9)(b)) and one count of forgery (Criminal Code s 473(1)(a)). Following conviction, the appellant was sentenced to imprisonment for an aggregate term of 3 years. He was declared eligible for parole and the sentences were deemed to have commenced on 28 August 2007.

35 The appellant elected trial by judge alone and an order was made under s 118 of the Criminal Procedure Act for trial by judge alone. The only issue in the case was that of unsoundness of mind. The appellant raised that defence pursuant to the provisions of s 27 of the Criminal Code, contending that, at all material times, he was of unsound mind. As the trial judge recognised, the appellant carried the onus of proving on the balance of probabilities that, at the material time, he lacked one or more of the relevant capacities identified in that section: Armanasco v The King (1951) 52 WALR 78 per Dwyer CJ at 81.

36 The trial judge was not satisfied on the balance of probabilities that, at the time of each of the alleged offences, the appellant was in such a state of mental impairment as to deprive him of the capacity to understand

what he was doing, or to control his actions, or to know that he ought not to do the act or make the omission, and was satisfied beyond reasonable doubt that, at all material times, the appellant possessed the requisite intent, thus establishing the mental element required to prove each of the charges alleged against him. The appellant was convicted on all charges he faced.

37 From the appellant's convictions and the sentences imposed by the trial judge, the appellant seeks leave to appeal to this court. By orders made on 27 November 2007, Wheeler JA directed that the question of leave to appeal against both conviction and sentence should be heard together with the appeal.

38 The grounds of appeal against conviction are as follows:

1. The learned trial Judge erred in fact by failing to find that the Appellant suffered bipolar disorder by failing to attribute any or any adequate weight to:

(a) the diagnosis of bipolar disorder made by Dr Burvill in October 2003;

(b) Dr Burvill's evidence that the Appellant suffered bipolar disorder when Dr Burvill had the benefit of personally examining the Appellant unlike Dr Lipton;

(c) the Appellant's behaviour, including offending behaviour, ceasing after commencement of treatment with lithium bicarbonate in October 2003.

1. As a result of failing to find as the learned trial Judge ought to have found that the Appellant suffered bipolar disorder the learned trial Judge erred in mixed fact and law in:

(a) failing to find that on the preponderance of evidence the offending behaviour closely correlated with the periods of heightened moods as described by Marlena Smallbone in her evidence;

(b) failing to draw the appropriate inferences from the evidence of Dr Burvill that those heightened moods constituted periods of mania which deprived the Appellant of his capacity to know that he ought not do the act constituting the offences the subject of the counts in the Indictment;

(c) attributing weight to the observations of non-psychiatrists of the Appellant's behaviour during their respective contact with him in circumstances where to do so would contradict or undermine the medical conclusions of an expert psychiatrist (Dr Burvill) in respect of a diagnosis of bipolar disorder;

(d) accepting evidence from Dr Lipton to the effect that the Appellant did not suffer from bipolar disorder.

1. When viewing the whole of the evidence reasonably the trial Judge erred in fact in finding that the Appellant did not suffer bipolar disorder when the learned trial Judged could not properly so find.

39 The grounds of appeal against sentence (as amended at the hearing) are as follows:

1. The learned trial Judge erred law in fact [sic] and against the weight of the evidence in failing to find that the Appellant suffered bipolar disorder (type 1) by rejecting or overlooking evidence to that effect.
2. The learned trial Judged erred in law in disregarding the Appellant's personal circumstances as a sufferer of bipolar disorder (type 1) when failing to impose a suspended term of imprisonment or other non-custodial sentence whilst sentencing.
3. The sentence imposed by the learned trial Judge was manifestly excessive having regard to the background mental state of the Appellant (his state of depression).

40 The trial judge gave extensive reasons for the conclusions he had reached (State of Western Australia v Smallbone [2007] WADC 146). His Honour first recounted the circumstances alleged in relation to each of the offences charged. There was no contest by the defence about the facts of each of those charges. The trial judge then turned to the question of unsoundness of mind. This necessitated consideration of the provisions of s 27 of the Criminal Code, the relevant portion of which is as follows:

A person is not criminally responsible for an act of omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

41 The term 'mental impairment' is defined in the Criminal Code (s 1) as follows:

The term 'mental impairment' means intellectual disability, mental illness, brain damage or senility;

42 The term 'mental illness' is, in turn, defined in the Criminal Code (s 1) as follows:

The term 'mental illness' means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;

43 The trial judge observed that the appellant's task of discharging the evidentiary burden cast upon him was made more difficult than it might otherwise have been by reason of the fact that he himself did not provide his psychiatrist with any detail as to his cognitive state at the time of the alleged commission of the offences. Nor did he give evidence in relation to it. The trial judge said:

His task in discharging the evidentiary burden upon him is not assisted by the fact that he did not provide the psychiatrist, Dr Burvill, with any detail as to his cognitive state at the relevant time, and/or give evidence concerning it. Essentially, an assessment of his mental state, which is necessarily retrospective, is dependent upon the history of his behaviour provided to Dr Burvill and the Court by his wife Marlena Ellen Smallbone; a consideration of his actions which give rise to each count in the indictment; and a consideration of the statements of the various lay witnesses who dealt with him. [11]

44 The trial judge made extensive reference to the evidence of Mrs Smallbone. He reached an adverse conclusion in relation to her credibility, saying:

Mrs Smallbone's evidence was unconvincing, and I thought that her recollection was coloured by her desire to provide some acceptable explanation for unacceptable behaviour by the accused. [25]

45 The trial judge concluded that the evidence of the appellant's daughter, Portia India Smallbone, added nothing to the evidence of Mrs Smallbone [26].

46 The medical evidence upon which the appellant relied was that of Professor P L Burvill, Emeritus Professor of Psychiatry at the University of Western Australia (Dr Burvill). His curriculum vitae was tendered in evidence. It revealed Dr Burvill to have extensive qualifications in the field of psychiatry, including relevant professional experience as a consultant psychiatrist, member of the Mental Health Review Board and Deputy Psychiatric Member of the Mentally Impaired Accused Review Board. He had held numerous academic posts, was a member of a number of professional organisations relating to the discipline of psychiatry and had extensive psychiatric forensic experience. No issue was drawn in relation to those qualifications.

47 The trial judge noted that the appellant had consulted Dr Burvill in October 2003, seeking his opinion as to whether he (the appellant) had bipolar affective disorder. The appellant saw Dr Burvill on a number of occasions between October 2003 and August 2006. Dr Burvill also saw Mrs Smallbone on a number of occasions.

48 The trial judge recounted the essence of Dr Burvill's evidence about bipolar affective disorder:

He stated that bipolar affective disorder was thought to be a genetically based biological disorder. It could manifest itself at any time, but predominantly in late teens and before the age of 30. He described it as a cyclical condition with manic episodes of elevated mood and depressed mood, and periods of normality. In a typically manic phase there was elevated mood with rapid speech, rapid changes of thought (flight of ideas), over-activity often not well sustained, sleep disturbance, hyper-sexuality, grandiose ideas, and impaired cognitive functioning. The condition was variable and in a severe manic phase could reach delusional proportions. A person in a manic phase might engage in extravagant expenditure and have very little insight into his behaviour. There was a correlation between the manic phase and risk taking. There could be impaired thought processes including concentration, judgment and risk taking. There was considerable variability. Dr Burvill stated that a person who had been in a manic phase may subsequently have reduced recall. Judgment as to the appropriateness of conduct could during a manic phase be mildly to grossly impaired. Impairment of memory could be mild to severe. [27]

49 Dr Burvill described bipolar disorder as a 'disease' and said:

What is the history of academic thought and science on the subject and how has that developed our understanding of this as a discrete and diagnosable psychiatric disorder?---Well, it's very well established and it is increasingly thought to be a biological illness and probably genetically based.

...

Is it a lifelong illness or is it something that might come and go?---It's a lifelong illness, once it's there, it's there.

...

I see. The illness was previously known in the academic literature by a different name. What was it formerly known as?---Manic depressive psychosis. The idea of calling it bipolar disorder was introduced with the DSM-I, II and III I think from the American Psychiatric Association.

50 Although not asked whether the condition of bipolar disorder was a 'mental illness' within the meaning of the definition of s 1 of the Criminal Code, Dr Burvill's evidence sufficiently established that the condition fell within that description.

51 The trial judge observed that Dr Burvill's diagnosis was very much dependent upon the history which had been provided to him by Mrs Smallbone. He said:

Dr Burvill stated that diagnosis of the condition depended upon the accuracy of and amount of evidentiary material available to the psychiatrist. Based on the history provided to him by Mrs Smallbone he concluded that the accused's disorder was at the severe end of moderate, but not warranting hospitalisation. He had never seen the accused in a manic state. The history was that there were times when the accused demonstrated elevated moods, heightened energy and activity, rapid speech, flight of ideas, and required little sleep. On the material made available to him he was not able to indicate whether the accused ever reached a delusional state. He felt that the accused had very little, if any, insight into his condition in that:

'He didn't seem to be able to describe in any detail at all or with any precision at all what his behaviour was like during the high spells or in the manic spells ... I found that he was what I would call a poor historian, was very vague, woolly, was lacking precision, and I would not have been able to make the diagnosis on the basis of what he had to tell me himself, and he seemed to have relatively little insight or memory of the high spells. But his wife gave me quite a clear history which left me in no doubt about the diagnosis ... I had to rely very heavily upon the history given by his wife because he himself was not able to give me a very clear history at all of his high spells.' [31]

52 Dr Burvill's conclusion was that the condition of bipolar affective disorder from which the appellant was suffering was such as to deprive him of the second and third of the capacities referred to in s 27 of the Criminal Code, namely, the capacity to control his actions, or the capacity to know that he ought not to do the act.

53 The trial judge summarised Dr Burvill's conclusions in this respect as follows:

Dr Burvill concluded that during manic spells the accused's capacity to control his actions and his insight into the appropriateness of what he was doing was markedly impaired, and it was more likely than not that he did [sic not] have the capacity to control his actions or to understand that what he was doing was wrong.

In addition to his consultations Dr Burvill read the transcript of Mrs Smallbone's evidence and concluded that in respect of each of the relevant periods of alleged offending behaviour it was reasonable to conclude that the accused had been deprived of the capacity to control his actions, or to know that he ought not do what he in fact did. [32] - [33]

54 A reading of the transcript of Dr Burvill's evidence reveals that his opinion was that the degree of impairment of the capacities was proportional to the severity of the manic phase affecting the individual. He said:

Can you explain that proportionality?---Well, from - it's usually impaired but in mild cases of mania, relatively mildly so but that can be very markedly impaired in from moderate to severe cases and usually it's markedly impaired.

So in a manic phase, it's usually markedly impaired?---Well, very often depending on the severity of it but once the severity of the mania becomes beyond a certain point, I'd use the word markedly impaired, yes.

Yes, all right. Would markedly impaired in a case of severe episode?---Even moderately severe episode.

55 When asked to express an opinion about the appellant's condition, Dr Burvill said:

Can you describe the picture that you were able to see from the history, as recounted to you by Mr Smallbone and Mrs Smallbone?---Yes, in my - from the history it was very clear to me that he had bipolar disorder.

Of what type?---Type 1.

And in terms of severity within that category, how severe was his disorder?---Well, I would have put it at the severe end of moderate if I can put it that way, the severity of bipolar disorder can be described on a continuum, it is not a yes or no situation.

56 Dr Burvill stated clearly that his diagnosis was reliant on the history he had obtained. He said:

Following these two initial meetings and the taking of the history from Mr Smallbone and from Mrs Smallbone, at what stage were you able to feel comfortable - how quickly were you able to feel comfortable with your diagnosis?---I feel comfortable after the second time I saw him, which was in company

With his wife?---With the history from his wife.

And that was on 23rd of?---I made a fairly confident diagnosis at that time and from all the history I have subsequently obtained it has just confirmed and reinforced the strength of my conviction that that was the correct diagnosis.

With respect to the quality of the information that you are receiving, to what extent is your own assessment of the reliability of the historian in any case important to your task of diagnosis?---Well, I can put that into two categories, that obtained from Mr Smallbone himself and the second one is from his wife. I found that he was what I would call a poor historian, was very vague, woolly, was lacking precision, and I would not have been able to make the diagnosis on the basis of what he had to tell me himself, and he seemed to have relatively little insight or memory of the high spells. But his wife gave me quite a clear history which left me in no doubt about the diagnosis.

How closely did you scrutinise what Mrs Smallbone had to say to you at that time and how she said it to you in terms of adjudging the clarity or accuracy of the facts that she was imparting to you?---I'm sorry, can you - - -

How closely did you attend to the manner in which she was recounting the history in what she said to you in your task of assessing the reliability of that information?---Well, she seemed to give a clear history and related as to her own observations and to my detailed questioning of her about specific details of it and I thought she was a very credible witness.

From this passage (a portion of which was quoted by the trial judge), it is apparent that Dr Burvill placed great importance upon the history given to him by Mrs Smallbone.

57 Dr Burvill was taken to the periods covered by the charges preferred in the indictment and he expressed the view that, from the history given to him by Mrs Smallbone, the appellant was in the manic phase of his disease during the periods covered by those charges. He concluded that, during those periods, it was more likely than not that the appellant was deprived of the capacity to control his actions and the capacity to know that he ought not to do the act in question. Dr Burvill was at pains to stress that this opinion was based upon the history available to him.

58 When cross-examined, Dr Burvill conceded that it is preferable when diagnosing somebody with bipolar affective disorder to 'actually see them in a manic state before deciding that that's the condition that they are suffering from'.

59 Dr Burvill also conceded that he was unable to determine from the history he had been given that, on any particular day, the appellant was deprived of any one of the capacities contained within s 27 of the Criminal Code. He said:

Putting aside any question of treatment, you can't determine from the history that you are given as to any particular day in a period when the capacity would have been - - -?---No, no.

- - - absent?---No. There's not that precision.

No, but you can't even say it's likely that on one day in a seven day manic state there was no capacity to control actions?---No, I'm more globally referring to the - more the likelihood of during that time, during those seven days - - -

I see so - - -?---14 days.

Yes, so if we talk about, say, 7 November, first of all we would have to establish there was mania present in that period?---Yes.

Then we would have to say, 'On that particular day, what was he doing and how was he acting'?---Yes, although I should qualify that by reference to the questions you are asking me that when there's a fairly short, intense period of mania - and the history available does seem to indicate that Mr Smallbone is a seven to 14 or 20 days - there's been less of a build up to a crescendo. The manic behaviour tends to build up much more rapidly and I've got the impression from just one's own experience and from the described behaviour that - and the period of - there has been told - that I would have made the judgment more likely than not in general terms over most of the period but I can't be precise, you know, with the 14th or 15th or 16th day. I mean, that's impossible.

60 The trial judge noted that Dr Burvill had acknowledged that it was difficult to make a determination of the appellant's cognitive state when the alleged offences occurred, particularly as the appellant did not detail his actions or thought processes in respect of those events [35].

61 Dr Burvill conceded in cross-examination that, in the course of his preparation of the case, he had not seen the video records of interview conducted with the appellant, nor had he read the statements of the lay witnesses who had dealt with the appellant. Perhaps more surprisingly, he had not examined any notes taken by consulting psychiatrists, Drs Shub and Rampono, each of whom had seen the appellant prior to Dr Burvill making his diagnosis. When cross-examined about this topic, he said:

Yes, but you weren't prepared to go and find the history that Dr Shub or Dr Rampono had obtained from Smallbone?---No, no.

Don't you think that could have been helpful in getting the full picture or getting different pictures as opposed to just Mrs Smallbone's view of things?---Having subsequently seen their reports, that does not in any way change my opinion of - - -

But did you ever discuss with them what they - did you look at their notes, for instance?---No, no.

Did you ever discuss why they reached the determinations that they did?---No.

You just decided that they were wrong. Is that right?---Well, it seemed to me it was very clear cut with the history I was given that the diagnosis was fairly clear and I was aware that Dr Kolnik had made the same diagnosis, although that didn't influence it in any way.

62 The trial judge made reference to Dr Burvill's failure to consult either of Drs Shub or Rampono. He characterised this as 'unusual'. [35]

63 The trial judge concluded, in relation to Dr Burvill's testimony:

When asked to address specific incidents including the accused's response when questioned about dishonoured cheques, the negotiation of a cheque into his own account, and the overdrawn trust account, Dr Burvill appeared reluctant to attribute the activity to a manic episode. He accepted that a lay person having reasonable contact with the accused when in a manic state would be expected to observe some of its characteristics, and common sense would confirm that to be the position.

When shown the recorded interview of 3 February 2003 concerning the endorsement of the cheque the subject of count 15, which interview occurred several days after the endorsement, Dr Burvill agreed that the accused did not appear to be manic during the interview. His agreement to go to a meeting the day following the endorsement to hand over the cheque, did not appear to indicate manic behaviour. [36] - [37]

64 The trial judge made reference to some of the evidence led by the respondent from police witnesses. He referred to evidence of Detective Michael Handcock, a detective senior constable, who was present at a search of the appellant's premises in Queen Street, Claremont, on 14 December 2001. He produced a videotaped record of interview with the appellant on 17 December 2001.

65 The trial judge concluded that the interview demonstrated clearly that, at that time, the appellant was cognitively intact, and responded to questions put to him in a thoughtful and articulate manner, demonstrating a very clear recollection of the events then under discussion. He concluded that the appellant did not then manifest any of the characteristics indicative of a manic state [40].

66 The interview conducted on 17 December 2001 was some 18 days after the commission of the offence alleged in count 12 on the indictment. That was a charge of fraud and it related to the withdrawal of the caveat on or about 29 November 2001.

67 Detective Senior Constable Craig John Kelly was called to give evidence. He testified that in February 2003 he was attached to Major Fraud Investigations and on 3 February 2003 accompanied officers to the appellant's residence at 2 Scott Street, Claremont. A search of those premises was conducted whilst Detective Kelly was present and the appellant was then conveyed to a police station where he was asked to participate in a videotaped record of interview. He declined to do this and was then arrested and charged. Detective Kelly's description of the appellant during the search was as follows:

During the search, the parts of the search that don't appear on the video, how was he acting or behaving?---Mr Smallbone was quiet, calm, cooperative, responding to our questions.

When you took him back to your office, was there any change in his demeanour or behaviour?---No, there wasn't. Towards the end of the evening after we were talking to him, at one time he was upset and appeared remorseful but apart from that, no.

68 The search of 3 February 2003 was conducted only three days after the commission of the offence alleged in count 15 in the indictment; namely, the offence that on 31 January 2003, the appellant with intent to defraud had forged the endorsement on a cheque.

69 The trial judge referred generally to the evidence of police officers who had contact with the appellant during the course of investigating the matters the subject of the indictment. He said that none of them observed anything unusual about the appellant's behaviour [57].

70 The trial judge referred to the evidence of Dr George Lucien Lipton, Clinical Professor of Psychiatry at the University of Western Australia. He had been provided with and considered materials relevant to a retrospective assessment of the appellant's psychiatric state. However, Dr Lipton had not spoken with either the appellant or Mrs Smallbone. The trial judge's conclusions in relation to the evidence of Dr Lipton were as follows:

His description of the manifestations characteristic of bipolar affective disorder essentially corresponded with that of Dr Burvill. Dr Lipton considered that the past medical and psychiatric history was important to any diagnosis. He accepted that those with the condition could suffer impaired memory of behaviour during the manic state, stating that it was variable and dependent upon the degree of mania. He stated that the loss of cognitive capacity related to the severely manic state but with a lesser level of mania cognitive capacity was far less likely to be affected.

Dealing with the situation where somebody in an elevated mood did something which they realised that they shouldn't do he stated 'I would say there might be some impairment because of the impulse to do things they want to do but I wouldn't see that necessarily as an incapacity.' [41] - [42]

71 The trial judge noted that Dr Lipton had conceded that it was difficult to make a diagnosis retrospectively [43], but he still felt that, on the material made available to him, on balance it was 'less than probable that the [appellant] suffered from bipolar affective disorder, and there was insufficient material to conclude that at any relevant time there was a reduction of cognitive capacity' [44].

72 The trial judge referred to the evidence of Dr Daniel Shub, a consultant psychiatrist. He testified that the appellant had consulted him on 40 occasions between 21 April 1993 and 17 August 1994. There was a further and final consultation on 20 June 1995. Dr Shub concluded that at no stage was there was there any indication that the appellant was suffering bipolar affective disorder. He described the appellant as an articulate and accurate historian. His opinion was that the appellant did not suffer from a bipolar affective disorder. The opinion was based upon his consultations with the appellant on 41 occasions, there being no evidence of that disorder on any occasion [46].

73 The trial judge referred to the evidence of Dr Jonathan Rampono, also a consultant psychiatrist. He had seen the appellant on 31 occasions between 17 July 1995 and 13 November 1996. His opinion was that the appellant suffered from an adjustment disorder as a consequence of being struck off the roll of legal practitioners, and the family and social consequences thereof. On no occasion did he see the appellant in a manic state. He considered there was no evidence to support a diagnosis of bipolar affective disorder [48].

74 The trial judge referred to evidence called by the respondent from a number of lay witnesses.

75 Janice Mary Ritchie and Belinda Jessie Marcinski were employees at Debtors Ledger Services, a business conducted by the appellant. They described the appellant as a gentle, calm and likeable person who did not display any adverse personal characteristics, or demonstrate mood changes. When it came to the attention of these two persons that the trust account of Debtors Ledger Services was overdrawn, they arranged a meeting with the appellant to address the issue. The appellant acknowledged to them that the trust account was overdrawn and claimed that he had experienced some financial difficulty. He undertook to rectify the situation. However, when he failed to do so, both Ms Ritchie and Ms Marcinski resigned [49].

76 Gordon Ian Blackburn was financial controller of Novek Pty Ltd. He had a meeting with the appellant subsequent to cheques from the trust account of Debtors Ledger Services being dishonoured. He said that the appellant was forceful and direct, did not regard the issue as one of consequence and undertook to rectify the position [50].

77 Gordon Thomas Garnsey was a client of Debtors Ledger Services. He had received cheques that were subsequently dishonoured. He described the appellant as cool, calm and collected, and stated that it was obvious that he knew what he was doing, and knew that what he was doing was inappropriate [51].

78 Julie Katherine Garland described the appellant as 'unremarkable' when seen in a commercial and social setting at times relevant to the charges contained within the indictment [52].

79 Marc Drexel, director of Asset Special Projects Pty Ltd, interviewed and employed the appellant in early June 2002. Mr Drexel conducted a real estate business and he was impressed with the knowledge, capacity and understanding that the appellant had of this industry.

80 Mr Drexel discovered that the appellant had endorsed the cheque from Tanis Holdings Pty Ltd for $34,000 and paid it into his own account (indictment count 13). He telephoned the appellant, who initially indicated that he was holding the cheque, but then conceded that he had deposited the cheque in his own account. His employment was then terminated. Mr Drexel described the appellant as an educated person, more professional than the usual real estate agent, but he did not observe anything in his manner or actions that differentiated him from any other person [53].

81 Jeremy James Reed was the licensee of Asset Special Projects during the relevant period. He had telephoned the appellant when it became apparent that he had acted inappropriately with a client's money. There was some difficulty getting him to attend a meeting to explain the position, but when he did so, he was unable to give any explanation. He offered to arrange repayment. He was described by Mr Reed as a person of above educational background, who presented himself well and who was very good at paperwork [55].

82 Giuliana Francesca Todaro was a real estate agent who had met the appellant in December 2002 when he was the selling agent for a property in which she was interested. She handed the appellant a cheque for $15,000, but as a result of information received from Asset Special Projects, she stopped payment on that cheque the same day, and telephoned the appellant to ask whether he had endeavoured to pay the cheque into his own account. He denied that he had done so, and he agreed to meet Ms Todaro the following day to return the cheque. He failed to attend the meeting. This incident is the subject of count 15 on the indictment. Ms Todaro described the appellant as a 'pleasant normal sort of guy' [56].

The trial judge's conclusions on all the evidence

83 The trial judge concluded that, in the absence of relevant input from the appellant, the validity of Dr Burvill's assessment was dependent upon the reliability of Mrs Smallbone's evidence [59]. He (the trial judge) found her to be an unconvincing witness. He considered her assertions that the appellant manifested the characteristics of bipolar affective disorder from the beginning of the marriage in 1987 to be inconsistent with the testimony of Drs Shub and Rampono, both of whom had seen the appellant on a very regular basis and had failed to observe or obtain any history indicative of that condition.

84 The trial judge also concluded that it was significant that none of the complainants in relation to the matters the subject of the indictment (who had addressed this issue) had observed anything untoward about the appellant's behaviour during their meetings with him. Likewise, none of the police officers dealing with the appellant had observed any unremarkable characteristics. The video records of interview did not demonstrate any [59].

In the result I do not consider the evidence of Mrs Smallbone to be cogent, and the foundation of the diagnosis and opinion expressed by Dr Burvill is flawed. It is also to be observed that Dr Burvill did not appear to have addressed in any relevant detail the conduct of the accused relied on by the State as constituting the various offences in the indictment. I do not accept his diagnosis or opinion. [61]

86 The trial judge found the evidence of Dr Lipton 'considered in the context of the other evidence' to be compelling [65], and concluded that he was not satisfied on the balance of probabilities that, at the time of each of the offences, the appellant was in such a state of mental impairment as to deprive him of the capacity to understand what he was doing, or to control his actions, or to know that he ought not to do the act or make the omissions. In the result, he was satisfied beyond reasonable doubt that, at all material times, the appellant possessed the requisite intent and the mental element had been established in relation to each offence [66].

87 This ground contends that the trial judge erred in failing to find that the appellant suffered bipolar affective disorder. It is contended that the trial judge failed to attribute any or any adequate weight to the diagnosis made by Dr Burvill, to the fact that Dr Burvill had the benefit of personal examination of the appellant and to the fact that the appellant's offending behaviour ceased after commencement of treatment with lithium bicarbonate in October 2003.

88 This ground of appeal founders on the fact that Dr Burvill considered Mrs Smallbone's history and observations essential to his diagnosis. His evidence in this respect was as follows:

And in addition to seeing Mr Smallbone did you also see any other members of his immediate family?---I saw his wife on many occasions, nobody else.

And what was the purpose of meeting with his wife?---Well, partly she was accompanying him but partly was to - or largely to get her history and observations which I thought was essential in making my diagnosis.

89 The trial judge found Mrs Smallbone's evidence to be unconvincing. He thought her recollection was coloured by her desire to provide some acceptable explanation for the unacceptable behaviour of the appellant [25].

90 This finding was based upon the trial judge's assessment of the evidence of Mrs Smallbone. The trial judge's finding in relation to the credibility of Mrs Smallbone has an important consequence on the hearing of this appeal. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact [see Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167]. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' [S S Hontestroom v S S Sagaporack [1927] AC 37 at 47] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' [Brunskill at 844]. (479)

In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ at [26] - [31] stated that Devries v Australian National Railways Commission (and cases which had preceded it) constituted established doctrine. Their Honours went on to make some wider comments about the function of courts of appeal, pointing out that in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of the appearance of witnesses alone, but nothing said in the judgment in Fox v Percy takes away from the basic proposition which I have quoted from Devries v Australian National Railways Commission. The relevant passages in Fox v Percy are as follows:

After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde [(1989) [1989] HCA 20; 63 ALJR 349 at 351 - 352], Abalos v Australian Postal Commission [(1990) [1990] HCA 47; 171 CLR 167 at 179] and Devries v Australian National Railways Commission [(1993) 177 CLR 472 at 479, 482 - 483]. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. [26] - [27]

...

[I]n recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [see materials cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA [1999] HCA 3; (1999) 73 ALJR 306 at 329 [88]]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [31]

91 Dr Burvill found Mrs Smallbone to be 'credible'. He found her history and observations to be essential to his diagnosis. The question, however, was whether the trial judge found Mrs Smallbone credible. He did not. To the contrary, he found her unconvincing. It cannot be said that the trial judge acted on evidence which was inconsistent with the facts, or which was glaringly improbable. His assessment was based upon the view he took of the witness during the course of her evidence in cross-examination. This court is not in a position to question that assessment. In my opinion, the finding of the trial judge in relation to the credibility of Mrs Smallbone must stand. That being so, Dr Burvill's opinion that the appellant suffered from bipolar affective disorder at the times of the offences contained within the indictment was undermined. It cannot be said that the trial judge erred in declining to accept Dr Burvill's opinion.

92 I should add that there was no evidence from 'contemporary materials, objectively established facts (or) the apparent logic of events' (Fox v Percy [31]) to suggest that the opinion of Dr Burvill was otherwise correct. To the contrary, the other materials and facts in the case suggested that the appellant did not at any relevant time suffer from a mental impairment.

93 In my opinion, ground 1 of the grounds of appeal therefore fails.

94 These two grounds are somewhat confused. Ground 2 contends that as a result of the trial judge failing to find (as he ought to have found) that the appellant suffered bipolar affective disorder, he made certain errors in fact and in law. Ground 3 contends that, when viewing the whole of the evidence 'reasonably', the trial judge erred in fact in finding that the appellant did not suffer bipolar affective disorder.

95 The only expert medical opinion to the effect that the appellant suffered bipolar affective disorder was that of Dr Burvill. Although reference was made to the fact that the appellant's referring doctor, Dr Kolnik, had made such a diagnosis of bipolar disorder, no evidence was called from Dr Kolnik.

96 The particulars annexed to ground 2 contend that the trial judge erred in:

(a) failing to find that, on the preponderance of the evidence, the offending behaviour correlated with the periods of heightened moods described by Mrs Smallbone;

(b) failing to draw the appropriate inferences from the evidence of Dr Burvill that these heightened moods constituted periods of mania in which the relevant capacities were destroyed;

(c) attributing weight to the observations of non-psychiatrists of the appellant's behaviour during their contact with him; and

(d) accepting evidence from Dr Lipton to the effect that the appellant did not suffer from bipolar affective disorder.

97 In my opinion, these particulars cannot be made out. The first of them suggests that there was a preponderance of evidence that the appellant's offending behaviour correlated with the periods of heightened moods described by Mrs Smallbone. There was not a preponderance of such evidence. There was only the evidence of Mrs Smallbone and her evidence was found by the trial judge to be unconvincing.

98 The second particular suggests that the trial judge was bound to conclude from Dr Burvill's testimony that, during heightened moods of mania, the appellant was deprived of one or more of the capacities contained within s 27 of the Criminal Code. However, I have already dealt with this issue. Dr Burvill's evidence was not accepted. It was not accepted because it was based upon the history given to him by Mrs Smallbone. It was not, therefore, open to the trial judge to draw any inferences from Dr Burvill's evidence which would have led him to conclude that any one or more of the capacities contained within s 27 of the Criminal Code had been destroyed.

99 The third particular criticises the trial judge for attributing weight to the observations of non-psychiatrists. However, it seems to me that the trial judge was correct to look to the evidence of the lay persons who had dealt with the appellant during the relevant periods covered by the indictment and who had each found the appellant to be an essentially normal individual. If anything, they found him to be well educated, articulate and positive. These were conclusions which were inconsistent with the appellant suffering bipolar affective disorder. I can see no basis upon which the trial judge was wrong in attributing weight to what those persons said.

100 The fourth particular criticises the trial judge's acceptance of the evidence of Dr Lipton. The primary criticism is based upon the fact that Dr Lipton did not see either the appellant or Mrs Smallbone. However, the evidence establishes that the appellant was unable to give to Dr Burvill any significant history at all. Dr Burvill placed no reliance upon what he was told by the appellant, because the appellant was unable to give him any relevant information. Further, although Dr Burvill placed great emphasis upon what Mrs Smallbone told him, the trial judge found Mrs Smallbone to be an unconvincing witness and this undermined Dr Burvill's opinion.

101 The trial judge accepted the evidence of Dr Lipton [65], and his Honour gave reasons for doing so [43] - [45]. He noted that Dr Lipton conceded that it was difficult to make a retrospective diagnosis, but placed particular importance upon Dr Lipton's conclusions that (a) if the appellant was suffering mania at the relevant periods to such an extent that he was deprived of his capacity to understand what he was doing or control his actions, or know that he ought not to do what he was in fact doing, it would have been obvious to those in contact with him, yet there was no suggestion on the material that this had been the case; (b) when the appellant forged the withdrawal of caveat (count 12 on the indictment), it was unlikely that he would have been able to consider, plan and undertake the necessary steps in relation to the withdrawal of the caveat if he was in a severely manic state; and (c) it was significant that neither Dr Shub nor Dr Rampono had diagnosed bipolar affective disorder, or reported seeing the appellant in a manic state, notwithstanding that each of them had experienced regular contact with the appellant.

102 The reasons given by the trial judge seem to me to justify his acceptance of the opinion of Dr Lipton, although, in the end, it was the trial judge's refusal to accept the opinion of Dr Burvill which was fatal to the appellant's case.

103 The third ground of appeal really repeats the substance of grounds 1 and 2. It is to the effect that the trial judge erred when viewing the whole of the evidence in finding that the appellant had not suffered bipolar affective disorder. It seems to me from the trial judge's review of the evidence and from the transcript of the evidence itself, that the whole of the evidence tended to a conclusion opposite to that for which the appellant contends. That evidence included the evidence of the lay witnesses, the police officers and the two psychiatrists who had treated the appellant. It all told strongly against the appellant's case.

104 The court has had the opportunity of viewing the video records of interview between the appellant and investigating police officers. There were three video records of interview. In none of them did the appellant reveal anything other than the demeanour of a person who had been apprehended for criminal offences. The appellant appeared to be lucid, coherent, understanding of what was being put to him and, in at least one video record of interview, accepting of his criminal behaviour.

105 I would refuse leave to appeal and dismiss each of the grounds of appeal against conviction.

106 At the hearing of the appeal against sentence, counsel for the appellant initially stated that if the trial judge was correct in rejecting Dr Burvill's diagnosis of bipolar affective disorder, there was little that could be said in support of the grounds of appeal against sentence. This was because each of ground 1 and 2 centre upon the contention that the trial judge erred in rejecting the evidence at trial that the appellant suffered bipolar affective disorder.

107 However, on further consideration of the matter, counsel added (with leave) ground 3. This ground contends that the sentence was manifestly excessive, having regard to the 'background mental state' of the appellant. That state is described as a 'state of depression' and this is something different from bipolar affective disorder.

108 Support for the appellant's contention is contained within a report of Dr Mircea Schineanu dated 2 December 2005 and addressed to the Perth District Court. Dr Schineanu is a consultant psychiatrist at the Frankland Centre at Graylands Hospital. His report relates to the appellant's fitness to stand trial, but its contents are relevant to the question of sentence. In his opinion, Dr Schineanu says:

My psychiatric assessment of Mr Smallone on 01.12.2005 revealed symptoms congruent with a mild/moderate state of depression. It appears that since my last assessment of Mr Smallbone in July 2005 there has been little clinical improvement in respect to his psychiatric condition.

109 Dr Schineanu was of the opinion that the appellant suffered from a bipolar affective disorder, with both depressive and maniform episodes spread over the years. Leaving aside the diagnosis of bipolar affective disorder (as to which the trial judge concluded there was no such condition), the question of the appellant's depressive disorder is relevant. Dr Schineanu said, in relation to treatment for this condition:

Since Mr Smallbone has been commenced on treatment he has not developed any maniform episode but he has developed a depressive disorder, which seems to persist beyond the expected average length of a depressive episode. (In his case the previous depressive episodes lasted from one or two weeks up to six weeks.)

110 Dr Schineanu considered that the most likely explanations for persistent depression included the psychological impact of the unresolved 'legal issue' and the outcome of the criminal proceedings, the ongoing/unresolved family problems regarding financial/inheritance issues and the realisation of his current poor functioning in his role as a breadwinner, father and husband, and his increasing dependency on his wife. Dr Schineanu's categorisation of the extent of the depressive disorder was:

In respect [of] the severity of Mr Smallbone's current depressive disorder, it is my opinion that his depression is of mild/moderate severity. He has been able to work part-time, he has been involved in domestic activities, and he has been able to function independently with some encouragement and guidance from his wife.

In addition to the clinical judgement of the severity of Mr Smallbone's depression I used the Hamilton Depression Rating Scale, on which the score was 16, meaning a mild/moderate level of depression. (A score of 17 is rated moderate/severe. The maximum score possible on this scale is 54).

111 Counts 1 to 11 on the indictment allege the stealing of money from different complainants between 21 December 2000 and 1 June 2001. In each case, the amount alleged to have been stolen was the amount of a general deficiency.

112 The offences relate to a period when the appellant and his wife conducted the business of Debtors Ledger Services. The appellant was a licensed debt collector. The business operated between August 2000 and June 2001. It entered into agreements with clients to collect debts owed to them. When a debtor made payment of money, it was paid to a trust account in accordance with a contractual arrangement made between Debtors Ledger Services and the client. Because the appellant was a licensed debt collector, he was bound by the provisions of the Debt Collectors Licensing Act 1964 (WA). He had an obligation to pay all moneys received into a nominated trust account and subject to withdrawal of amounts to cover collecting expenses, commission fees and other charges, he was obliged to pay the balance to the client within 45 days of receipt.

113 During the period covered by the indictment, the appellant drew various cheques on the trust account to discharge personal debts which were unconnected with the business. He also drew various amounts of cash with no indication of the purpose for which the amounts were drawn. The trust account itself was frequently overdrawn. The total amount stolen approximated $27,500.

114 Count 12 is an allegation of fraud. The appellant was charged that, on or about 29 November 2001 at Perth, with intent to defraud by deceit or fraudulent means, he caused a detriment to Solitaire Investments Pty Ltd, namely, the withdrawal of caveat number H900592, being security for finance in the amount of $25,000.

115 The evidence established that the appellant and his wife were the registered proprietors of land at Queen Street, Claremont. The land was the whole of the land comprised in certificate of title volume 1869 folio 876. Solitaire Investments Pty Ltd registered on 17 October 2001 a caveat number H900592 against the land, claiming an estate or interest pursuant to an unregistered mortgage dated 17 October 2001.

116 On 29 November 2001, the appellant caused to be registered a withdrawal of caveat number H941786. He prepared the document and executed it by forging the common seal of Solitaire Investments Pty Ltd. He did that to obtain additional finance by way of mortgage.

117 The trial judge found that the act was clearly detrimental to Solitaire Investments Pty Ltd and the appellant necessarily did the act in question with an intent to defraud and by deceit or fraudulent means.

118 These two counts are allegations of stealing moneys received by the appellant with the direction that those moneys should be applied to a particular purpose. The two counts respectively allege:

(13) On or about 7 November 2002 at Perth, Peter David Bruce Smallbone stole $34,000.00 in money the property of Tanis Holdings Pty Ltd which money had latterly been received by Peter David Bruce Smallbone with a direction that it be paid to Coronado Lane Ltd.

(14) On or about 19 December 2002 at Perth, Peter David Bruce Smallbone stole $1,663.00 in money, the property of Jill Lorraine McQuoid which money had lately been received by Peter David Bruce Smallbone with a direction that it be paid to AIS Insurance Brokers Pty Ltd.

119 The evidence established that, on the dates alleged in the indictment, the appellant, having received a cheque for $34,000 in the first case and $1,663 in the second, accompanied by a direction that it be paid to a third party, without authority and contrary to the direction, endorsed the cheque payable to himself and deposited it in his own account.

120 Count 15 is an allegation of forgery. The count is framed in the indictment in the following terms:

(15) On or about 31 January 2003 at Perth, Peter David Bruce Smallbone, with intent to defraud, forged a record, namely an endorsement directing payment to 'Peter and M Smallbone' on a Bankwest cheque number 000145 dated 31 January 2003 for the amount of $15,000.00.

121 The evidence established that, on 31 January 2003, the appellant endorsed a cheque given to him by Giuliana Francesca Todaro directing payment to Peter and M Smallbone to facilitate the deposit of the cheque in his account. That endorsement was a forgery.

122 After the appellant's conviction, his counsel continued to submit to the trial judge that the appellant suffered bipolar affective disorder. He referred to a history of mental illness on both sides of the appellant's family. He said that the appellant's father suffered long-term depression, a paternal uncle was diagnosed with depression and a maternal cousin had a manic depressive disorder. There were two suicides and an attempted suicide.

123 Counsel made reference to the diagnosis of Dr Roy Kolnik and tendered to the trial judge a report of Dr Kolnik. (Counsel indicated that the report was dated 25 March 2000 whereas, in fact, it was dated 2007.) Dr Kolnik had not given evidence at the trial and counsel for the respondent objected to the tender of the report. The trial judge said, however, that there might be material in the report that was of consequence and it appears that he accepted the report.

124 Counsel submitted that the report of Dr Kolnik was important because it revealed that the appellant continued to be treated with lithium carbonate for depression, and he was under regular supervision of Dr Kolnik. He was said to suffer depressive episodes and he required continual medical supervision.

125 Submissions were made that the appellant was a frugal, devoted family man who spent most of his time when not working with his children. He had recently undertaken studies in theology.

126 Submissions were made that the appellant's mental illness had contributed to his offending. The trial judge was asked to find that the appellant was suffering from a mental disorder at the time of his offending, which mental disorder was causally related to the commission of the offences. Reference was made to Lauritsen v The Queen [2000] WASCA 203; [2000] WASCA 203; (2000) 22 WAR 442, where at 456 - 459 Malcolm CJ reviewed a number of cases relevant to the interaction between the principle of general deterrence in sentencing and cases in which the offender suffers from a mental disorder or abnormality. At 459, Malcolm CJ accepted that authority generally confirmed that (1) mental disorder may reduce culpability so as to affect punishment; (2) it affects the weight to be accorded to deterrence, whether general or personal; (3) it may affect the kind of sentence which is imposed; (4) it may mean that the sentence imposed may weigh more heavily upon the offender than upon a normal prisoner.

127 Counsel for the respondent submitted that a sum of the order of $62,000 had been stolen by the appellant, with a further $15,000 being the subject of a cheque which would have been banked, but was not banked because the account had been closed. There was also the loss of Solitaire Investments' security 'for a period of time'. The submission was that much inconvenience had been caused to a number of people and the offences impacted on public confidence. An immediate term of imprisonment was sought.

128 The trial judge adjourned sentencing from 28 August to 31 August 2007 to enable the question of restitution to be resolved. By that time, there were only two outstanding matters of recompense and they related to persons who could not be located. A proposal was put that the amounts in question should be disbursed to the appropriate recipients by the Director of Public Prosecutions. The trial judge observed that the amounts outstanding did not appear to be large.

129 The trial judge sentenced the appellant on 31 August 2007. He began by reviewing the circumstances surrounding the different offences which were the subject of the indictment. He concluded that, in respect of all offences, there was clearly a breach of trust and the behaviour of the appellant had the potential to give rise to clear loss of public confidence in statutory regulatory bodies such as debt collecting agencies and real estate agencies. His Honour found it to be clear from the evidence that the appellant's criminality had serious consequences to the various complainants, although in the fullness of time it appeared that the realised loss had not been of any high order. His Honour regarded the preparation, registration and withdrawal of the caveat and the forging of that document as particularly serious, being behaviour going directly to the critical issue of indefeasibility under the Torrens system, and behaviour detrimental to public confidence 'in the face of the titles register'.

130 The trial judge concluded that the appellant's behaviour in all instances was behaviour engaged in to benefit himself to further his own financial purposes.

131 The trial judge made reference to the appellant's personal circumstances. He was 50 years of age and had no record of prior offending, or prior dishonesty, save for 'some difficulty whilst a legal practitioner', which his Honour considered to be of marginal relevance in the sentencing exercise. He accepted that the appellant was a dedicated family man and made a significant contribution to the welfare of his children.

132 The trial judge addressed the issue of psychiatric factors which were said to reduce the level of the appellant's culpability He said:

The findings that I have made in the course of the trial are that I was not satisfied that on the material put before the court that there was a condition of bipolar disorder and that in any event there was no evidence to suggest that at the time of the offending behaviour you lacked any of the capacities identified in section 27 of the Criminal Code.

It would appear that you have some psychiatric difficulties, one would think perhaps depression and an adjustment disorder but it can be said with confidence in my view that there is nothing of a psychiatric nature that provides any explanation for your offending or serves in any way to reduce the culpability of your behaviour.

133 The sentences which were imposed were as follows:

Counts 2 and 3: 2 months' imprisonment in each case

Counts 5 to 11: 2 months' imprisonment in each case

134 To recognise the appellant's personal factors and issues of totality, the trial judge then directed that the 'lead sentence' should be the 12-month sentence imposed in relation to count 4, and that the 2-year sentence in relation to count 13 should be served cumulatively on the sentence on count 4, making an aggregate sentence of 3 years' imprisonment. All other sentences were ordered to be served concurrently with count 4.

135 Grounds 1 and 2 contend that the trial judge erred in failing to find the existence of the bipolar disorder from which it was contended the appellant suffered. For the reasons that I have previously given in relation to the appeal against conviction, these grounds can have no substance.

136 Ground 3 raises the question whether the sentence was manifestly excessive, having regard to the 'background mental state of the Appellant (his state of depression)'.

137 The report of Dr Roy Kolnik to which reference was made during sentencing submissions reveals that the appellant is being treated with significant psychotropic medications for what Dr Kolnik considered was his bipolar disorder. One of the drugs (Escitalopram) is an antidepressant medication, but it appears from the report that the appellant suffers from continued depression. Dr Kolnik said in the report:

[He] has struggled over a period of time with recurrent depressive periods.

His Escitalopram has helped him significantly with these depressive periods, and the improvement in his overall mental and emotional state is such that he has been able to find work, and graduate from a rather unproductive first work situation to a stable and modestly remunerative employment at present.

Throughout this period of treatment Mr Smallbone has had his wife supervise and look after his medication availability and compliance and over these years he has complied in all respects with the treatment strategies I have employed.

He has continued his improvement over this time, in spite of a very unhappy family situation with regard to his family of origin in New Zealand and despite the family struggling with a significant degree of financial deprivation.

With the medications he is currently receiving, his excellent compliance with these medications and the close hands-on supervision of his wife, I believe he is very unlikely to have recurrence of significant illness.

138 In my opinion, there was evidence that the appellant suffered from a depressive condition, although not (as the trial judge found) bipolar disorder. I have referred earlier to the report of Dr Schineanu which essentially confirms Dr Kolnik's assessment in that regard.

139 Dr Kolnik's report speaks of depression 'over a period of time' but that time is not specified. It does, however, suggest the existence of depression as far back as 1986. Dr Schineanu's report is dated 2 December 2005, and relates to the 2005 year. The extent of any depressive condition at the time of the commission of the offences over the period 2000-2003 remains a live issue.

140 There is, however, evidence that the appellant has suffered from a depressive condition for a number of years. Dr Kolnik speaks of the appellant struggling over a period of time with recurrent depressive periods. Dr Schineanu states that the appellant's psychiatric history traced back to 1986-1988 and it was well documented that he had a 'cyclical form of bipolar disorder with episodes of mania and depression each year'.

141 Putting aside the diagnosis of bipolar disorder, it appears that there has been a long period of depression. Certainly, since December 2004, the appellant has been depressed and on antidepressant medication. Dr Schineanu's assessment in July 2005 was that the appellant revealed symptoms 'congruent with a mild/moderate state of depression'.

142 Counsel for the respondent conceded at the hearing of the appeal that the appellant suffered depression, but submitted that the depression in this case was not such as to enliven any discretion in the court to resentence the appellant. It was put that depression is a common condition and not such that required any weight to be given to it in the sentencing exercise in this case.

143 In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, Steytler P reviewed the relevance of psychiatric illness to sentencing. His Honour said:

It is settled that serious psychiatric illness not amounting to insanity is relevant to sentencing. In R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400, Charles and Callaway JJA and Vincent AJA said that this was so in at least the following five ways:

'First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'

Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40]. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed, as it often has been: see, for example, R v Juli (1990) 50 A Crim R 31 at 37; R v Hurd [1988] TASSC 54; (1988) 38 A Crim R 454 at 461, 465; Tsiaras, above, at 400; R v Balchin (1974) 9 SASR 64 at 68; R v Reynolds (1983) 10 A Crim R 30; and Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459.

As to personal deterrence, as is implicit from what was said in Tsiaras, much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person's ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person: see Payne, above, at [43].

As to general deterrence, this is a factor which should often be given little weight in the case of an offender suffering from a mental disorder, such an offender not being an appropriate medium for making an example to others: R v Scognamiglio (1991) 56 A Crim R 81 at 86; Anderson v The Queen [1981] VicRp 17; [1981] VR 155 at 159. In an extreme case, considerations of general deterrence might be totally outweighed by other factors. However, in every case, the relevant factors must be balanced in a manner no different from that which is involved in every sentencing exercise: R v Letteri, unreported; CCA SCt of NSW; Library No 60497 of 1991; 18 March 1992 at 14, per Badgery-Parker J and R v Engert (1995) 84 A Crim R 67 at 70-71, per Gleeson CJ. [52] - [55]

144 It seems to me that the appellant has difficulty in establishing that his moral culpability is lessened by reason of any causal connection between his depressive state and the commission of the offences. There is no evidence that his psychiatric condition must have contributed to the commission of the offences. However, in terms of general deterrence, the appellant is not an offender who is 'an appropriate medium for making an example to others' (Thompson v The Queen [55] (Steytler P)). The depressive condition from which the appellant has apparently suffered for a long period of time and which is presently latent because of appropriate medication, means that both personal and general deterrence count for less in this case than they might in the ordinary case. Furthermore, given the appellant's depressive state, whether treated by medication or not, it would seem that any sentence he receives will weigh more heavily upon him than it would on a person in normal health.

145 The trial judge did not appear to appreciate any of these factors. His Honour saw the issue as being limited to the reduction of culpability by reason of psychiatric illness and no more.

146 In my opinion, weight should have been given to the appellant's depressive condition. He continues to suffer from depression, although the condition is alleviated by appropriate medication. The failure to give weight to that factor constituted an error on the part of the trial judge. It necessitates the resentencing of the appellant.

147 The offences committed by the appellant were essentially offences of stealing and fraud. To that extent, they differ from offences as stealing as a servant (Criminal Code s 378(7)). Nevertheless, cases which have dealt with sentences for stealing as a servant are a rough guide to the appropriate level of sentence that should be imposed upon the appellant.

148 In Collins v The State of Western Australia [2007] WASCA 108, McLure JA reviewed a number of cases dealing with the offence of stealing as a servant. They had previously been reviewed by Steytler P in Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [37] - [44], but there had been a number of subsequent cases, including Smith v The Queen [2003] WASCA 235; Nelmes v The State of Western Australia [2004] WASCA 191 and Wilkie v The State of Western Australia [2005] WASCA 156. In each of these last three cases, the appellant had stolen from his or her employer very substantial amounts of money. In Smith, it was $667,750, in Nelmes, it was $309,671 (with 21 counts of fraud) and in Wilkie, it was $1.6 million. The sentences in each of these three cases were 2 years 6 months, 4 years and 5 years respectively. Each sentence took account of the current sentencing regime.

149 In Collins, the appellant had pleaded guilty to 75 counts of stealing as a servant (s 378(7) Criminal Code). The amount stolen was $56,507, not dissimilar to the $62,000 stolen by the present appellant (although, of course, the present appellant also committed other offences). Collins was resentenced on appeal to imprisonment for 1 year 8 months.

150 Although a number of the cases relate to pleas of guilty, and the appellant in this case pleaded not guilty, he effectively only put the prosecution to proof and raised in his defence the issue of insanity. He did not dispute the facts of the offences alleged. After his conviction, he made full restitution. There is evidence that he suffered from, and suffers, depression.

151 The outcome of the appeal in Collins and the sentences imposed in each of the cases of Smith, Nelmes and Wilkie suggest to me that serious though the appellant's offending was, the effective sentence of 3 years' imprisonment was manifestly excessive. In reaching this conclusion, I have had regard to the general principles relevant to determination of the question of manifest excess (see Chan v The Queen (1989) 38 A Crim R 337, 342; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325).

152 I consider that the appropriate aggregate sentence in all the circumstances was one of 2 years' imprisonment. I would leave the individual sentences imposed by the trial judge as they are, but order that all sentences other than the sentence imposed on count 13 be served concurrently with the 2 years imposed on count 13. The order for eligibility for parole should remain and the commencement date should be 28 August 2007.

153 I would therefore grant leave to appeal against sentence on ground 3, allow the appeal against sentence on ground 3, set aside the order for cumulation in relation to counts 4 and 13, and order in lieu that sentences other than that imposed on count 13 be served concurrently with that sentence. I would refuse leave to appeal on grounds 1 and 2.