Court of Appeal (WA)|2010-09-09|Before: Buss JA, Lure P, Mazza J

SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 176 (9 September 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 176

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Unlawful wounding in circumstances of aggravation - Sentence of 2 years' immediate imprisonment - Appeal by offender against sentence - Offender aged 18 years - Offender suffering from psychotic symptoms induced by a combination of mental illness and illicit drug use - Interaction between sentencing legislation and considerations and mental health legislation and considerations - No material error by the sentencing judge

Prisons and Sentencing Legislation Amendment Act 2006 (WA)

Prisons Regulations 1982 (WA), reg 54D, reg 54F

Butler v The State of Western Australia [2010] WASCA 104

Damiani v The State of Western Australia [2006] WASCA 47

Krijestorac v The State of Western Australia [2010] WASCA 35

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

R v Martin [2007] VSCA 291

The State of Western Australia v Johnson [2009] WASCA 224

Wheeler v The Queen [No 2] [2010] WASCA 105

2 BUSS JA: The appellant was convicted in the District Court, on his plea of guilty, on one count in an indictment which alleged that on 30 June 2009 he unlawfully wounded Trevor John Kneebone in circumstances of aggravation, contrary to s 301(1) of the Criminal Code (WA). The circumstances of aggravation were that the appellant was in a family and domestic relationship with the complainant.

3 The sentencing judge, Bowden DCJ, imposed a sentence of 2 years' immediate imprisonment. His Honour back-dated the sentence to commence on 1 July 2009, being the date on which the appellant was taken into custody for the offence. A parole eligibility order was made.

4 The appellant appeals to this court against the sentencing decision.

The circumstances of the appellant and his offending

5 The appellant was born on 4 June 1991. He was aged 18 years at the time of the offending and when he was sentenced. The appellant had no prior criminal or traffic convictions.

6 On 30 June 2009, the appellant was at home with his mother and the complainant, who is his mother's partner. The appellant removed a large serrated knife from a kitchen drawer, went to the bedroom occupied by his mother and the complainant, and used the knife to stab the complainant in the throat. The complainant was sitting on the bed with the appellant's mother when this occurred. The complainant sustained a deep cut, about 8 cms long, which bled profusely. He was taken to hospital. Fortunately, no major arteries were cut, and the injuries were not deemed to be life-threatening or likely to cause permanent injury to health.

7 The appellant stabbed the complainant because he believed (erroneously) that his mother was being intimidated and 'pushed around' by the complainant. Also, the appellant was hearing voices that were telling him to 'do something' to the complainant.

8 The appellant was adopted as a baby. It appears that his biological mother and father had mental health, drug and alcohol problems. As a neonate, the appellant exhibited evidence of drug withdrawal symptoms.

9 The appellant grew up with his mother (who is his adoptive mother) and his adoptive father until they separated when he was aged 14 years. He was then placed with his adoptive father's family for about three

months before he moved to live with his mother. The appellant's mother became involved in a relationship with the complainant. The appellant and his mother lived in the complainant's house for about a year and a half until the occurrence of the offence.

10 When the appellant was aged 7 or 8 years he was diagnosed as suffering from attention deficit hyperactivity disorder. He was prescribed the stimulant medication, Ritalin. He ceased taking this medication after a few years because of its side effects.

11 In 2008, the appellant began experiencing symptoms of paranoid schizophrenia. He was admitted to the Bunbury Psychiatric Unit of the Bunbury Hospital between 28 October 2008 and 20 November 2008. On his discharge, he was prescribed the antipsychotic medication, Olanzapine.

12 The complainant said, in a witness statement dated 2 July 2009, that after he was discharged from the Bunbury Psychiatric Unit, the appellant experienced 'dark moods' and 'was non-responsive to his mother and ... would try and intimidate his mother'. According to the complainant, the appellant would at times be 'nice', but at other times would regress into 'dark moods'. Although the appellant was taking medication, his behaviour and mental state were, in the complainant's opinion, getting 'progressively worse'.

13 The appellant's mother said, in a witness statement dated 9 July 2009, that in the 12-month period before the offending, the appellant's behaviour and mental state were deteriorating. She said that the appellant experienced dark and, sometimes, sinister moods. He would become aggressive and threatening for no reason.

The appellant's admission to the Frankland Centre, Graylands Hospital

14 On 4 September 2009, the appellant pleaded guilty to the offence.

15 Soon afterwards, the appellant's psychiatric condition deteriorated. On 15 September 2009, he was transferred from Bunbury Regional Prison to Casuarina Prison for the purpose of further psychiatric assessment.

16 After the transfer, the appellant's psychiatric condition continued to deteriorate. On 22 September 2009, he was declared an involuntary patient pursuant to the Mental Health Act 1996 (WA), and placed at the Frankland Centre, Graylands Hospital.

17 On 9 November 2009, when the appellant was sentenced, he was still an involuntary patient at the Frankland Centre.

Dr Victoria Pascu's psychiatric assessment of the appellant

18 Dr Victoria Pascu is a consultant forensic psychiatrist.

19 In a report dated 16 October 2009, Dr Pascu set out the appellant's account of the offence, as follows:

[The appellant] accepted most of the events described in the Statement of Material Facts except that he assaulted his mother. He said 'they were arguing about bestiality and necrophilia; he was punching my mum I had to protect her'. He said that approximately three weeks before the incident he realised that his stepfather was sexually interfering with the dog as he checked the dog's bottom and he said 'it was bleeding and had cuts on it'. [The appellant] became teary when talking about the dog saying 'the dog also has fits; they smoke dope around it that is causing his fits'.

[The appellant] said that on the day of the incident he did not go to work as he only worked on [a] casual basis. He said 'I was at home, had about 10 bongs; I like the bongs and crack; I was waiting for mum to go shopping but we didn't go; her boyfriend came home at 7 in the evening from work and they were arguing about going shopping; they were shouting in the kitchen, in the lounge and in the second bedroom; I was outside smoking bongs; I hear them shouting about bestiality and necrophilia; he started pushing mum and then they argued in the bedroom; I cut his throat, I was protecting mum'.

20 Dr Pascu described in her report the appellant's presentation at the Frankland Centre on 22 September 2009. She said:

On admission to the Frankland Centre [the appellant] presented as thought disordered almost to the point of word salad. He gave minimal, vague history regarding the offence. He gave a history of domestic violence at home and talked about his stepfather and mother 'being into bestiality and necrophilia'. He said that his stepfather was a violent and abusive man and that he was often scared of him. [The appellant] denied any problems but later during his admission he described seeing the Devil when he was 13 years old. He said 'he is like an old man with a face which you can not see' and continued by saying 'I was blessed by the Devil with a black mark on my neck; later that day I was blessed by God in the sky while sitting on the beach; I saw him in the sky, he had a yellow eye on his forehead; he chose me'. [The appellant] also said that he first saw the Devil in a dream and than [sic] saw him outside his house in a tree. [The appellant] denied committing the offence in response to auditory hallucinations (voices) although he said that prior to the incident he heard his mum and stepfather arguing about bestiality and necrophilia. He said 'I heard them shouting about that, I heard him say that he was into all that; I know that he said all those things but he denies it; my mum knows all this and she may be in danger'.

21 Dr Pascu summarised her opinion in relation to the appellant's psychiatric condition, as follows:

From the history available it appears [the appellant] has been exhibiting bizarre dangerous behaviours over the years which partly may have been explained by his significant illicit substance abuse, however, according to his mother his mental state further deteriorated in 12 months prior to his offending which could well be explained by the evolving severe mental illness, paranoid schizophrenia, complicated by the illicit substance abuse.

Regarding the offence it is fairly clear that [the appellant's] mental state was affected at the time by psychotic symptoms, including likely auditory hallucinations (voices) talking to him about 'bestiality and necrophilia'. It is also clear that at the time of the offence [the appellant] had been using significant illicit substances and it is difficult to know exactly how much of his psychosis was due to his mental illness and how much to the combination of his illness and the illicit substances.

What is obvious now is that [the appellant] has been abstinent from illicit substances since his remand on 1 July 2009 and he remains actively psychotic, thought disordered and preoccupied despite ensured treatment with antipsychotic medication in prison and now in hospital. This suggests that there is an underlying mental illness in this young man, which so far, has not responded to the treatment.

Given the early onset of the illness on the background of significant problems from an early age, the likely history of mental illness in the biological parents, complicated by the illicit substance abuse, lack of insight into his illness and the significantly risky behaviours I currently see [the appellant's] prognosis as guarded. (emphasis added)

22 Dr Pascu concluded her report by making the following recommendations:

Whatever the outcome of his court appearance, [the appellant] requires long term psychiatric treatment for his psychotic disorder. Currently he remains unwell despite ensured compliance with antipsychotic medication in a structured environment. He has not been a management problem on the ward but he isolates himself and has minimal meaningful communication with staff. At this stage [the appellant] requires treatment under the Mental Health Act in this authorised hospital and as there has been no noticeable improvement since his admission I believe that it may take some time before his mental state will start improving. When his mental state will improve to the extent that he will be manageable in prison he will be returned there to continue his psychiatric treatment and follow up by the prison mental health services.

23 In a report dated 16 November 2009, Dr Pascu elaborated upon her views in relation to the appellant. She reiterated that the appellant's behaviour at the time of his offending was directly related to his acute psychotic state, and that the use of illicit substances compounded the intensity of his psychosis. According to Dr Pascu, the appellant will require life-long psychiatric treatment and follow up under the Mental Health Act in order to ensure treatment of his major mental illness. She said that, regardless of 'his court outcome', the appellant would continue to remain as an inpatient under the Mental Health Act in an authorised hospital until his mental state improves to the point that he can be managed in either the prison or the community.

24 It is apparent from Dr Pascu's report dated 16 November 2009 that if the appellant were to cease being an involuntary patient pursuant to the Mental Health Act and released into the community, he would be subject to ongoing management and control pursuant to a community treatment order. By contrast, if the appellant were to cease being an involuntary patient and complete his sentence in prison, he would be subject to less ongoing supervision during any period of release on parole, and no management or control after the expiry of his head sentence, unless a psychiatrist were to make a community treatment order in respect of him.

25 By letter dated 4 June 2010, Dr Pascu provided a brief addendum to her report dated 16 November 2009. In the addendum, Dr Pascu, in essence, re-affirmed the views she had previously expressed.

26 As I have mentioned, the sentencing judge imposed sentence on 9 November 2009. Dr Pascu's report dated 16 November 2009 and her letter dated 4 June 2010 were therefore not before him.

Dr John Kemp's psychiatric assessment of the appellant

28 On 17 August 2009, Dr Kemp interviewed the appellant at Bunbury Regional Prison for the purpose of preparing a report as to his fitness to plead. Dr Kemp reviewed the appellant's medical and psychiatric files. The appellant had previously consulted Dr Kemp in the Bunbury Hospital between 28 October 2008 and 20 November 2008.

29 In a report dated 17 August 2009, Dr Kemp said that the appellant was admitted to the Bunbury Hospital between 28 October 2008 and 20 November 2008 for the treatment of a substance induced psychosis. Dr Kemp also said that the appellant consulted him in Bunbury Regional Prison on 6 July 2009. At that stage, the appellant was 'psychiatrically stable' and his usual regime of psychiatric medication was continued. Dr Kemp expressed his satisfaction that, with appropriate advice, the appellant could challenge a jury member (if required), and that he had sufficient attention and comprehension to follow the trial process and adequately instruct defence counsel. He was fit to plead.

The sentencing hearing and the sentencing judge's remarks

30 At the commencement of the sentencing hearing, the sentencing judge inquired of the appellant's counsel (who also appeared for the appellant before this court) whether there was 'any issue as far as fitness to plead is concerned' (ts 2). Counsel replied that 'as far as fitness to plead goes, he's fine' (ts 2). The appellant was then arraigned and pleaded guilty.

31 His Honour recited the material facts and referred in detail to the psychiatric and medical reports. His Honour noted the appellant's youth, his plea of guilty and the absence of a prior criminal record. He mentioned some authorities relating to the sentencing of offenders suffering from mental illness and the lessening of moral culpability where there is a connection between a psychiatric illness on the one hand and the commission of an offence on the other.

32 The sentencing judge said that he had 'no doubt at all' that the appellant's psychiatric condition contributed to the commission of the offence in question (ts 13 - 14). He added that the psychiatric illness was the 'overlying contributing factor' to the offending, and this must be reflected in the sentence (ts 14).

The question of mental illness is to be considered clearly in this case. There's no doubt that, as the indictment reads, the offence was aggravated by the fact that the victim was in a family and domestic relationship with you, and also that a weapon was used. As I have remarked, you are 18, you have no prior record, and clearly your psychiatric illness was a major contributing factor to this offence, but there is a need to protect the public. There is a need to punish you.

I accept entirely that specific deterrence and to some extent general deterrence are moderated by your psychiatric illness, and your prospects of rehabilitation are also affected by the guarded prospects of the psychiatric illness. I'm aware that imprisonment can only be imposed as a sentence of last resort, only if the protection of the public requires it, or the circumstances are such that no other sentence can be justified. I'm also aware that if a conclusion is reached that imprisonment is appropriate, immediate imprisonment can only be imposed if a suspended sentence would be considered to be wholly inappropriate.

The injuries sustained in this case ultimately were not as serious as otherwise they could have been, but the act of obtaining a knife, pulling the neck back and stabbing, or cutting across the throat, is clearly such that in my opinion the need for specific and general deterrence, the need to protect the public, to punish you, are such that immediate imprisonment is the only appropriate disposition notwithstanding your clear psychiatric illness (ts 14 - 15).

34 The sentencing judge concluded that the appropriate sentence was 2 years' imprisonment. He considered that anything other than immediate imprisonment would fail to reflect the seriousness of the offending or the necessity to protect the public (ts 15). As I have mentioned he back-dated the sentence to commence from 1 July 2009, and he made a parole eligibility order.

36 Ground 1 alleges that the sentencing judge erred in imposing a sentence of imprisonment to be served immediately 'given the appellant's youth, lack of criminal record, time spent in custody, and the appellant's severe and deteriorating mental illness, paranoid schizophrenia, at the time of the offence and when sentenced'.

37 Ground 2 alleges that the sentence of 2 years' immediate imprisonment was disproportionate to the overall criminality involved in the offence when viewed in all the circumstances of the case, including those personal to the appellant, and the appellant's severe and deteriorating mental illness at the time of the offence and when sentenced.

38 On 29 January 2010, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

39 Counsel for the appellant clarified in the course of oral argument before this court that he was asserting a case of manifest excess in relation to both grounds of appeal. He was not alleging that the sentencing judge had made a specific error.

40 Counsel for the appellant submitted that in view of the appellant's youth, his lack of a prior criminal record, the time the appellant had spent in custody before being sentenced (a little over 3 months) and the appellant's severe and deteriorating mental illness, the sentence of 2 years' immediate imprisonment was manifestly excessive.

41 According to counsel, his Honour erred in placing emphasis on the need for general deterrence, specific deterrence and punishment.

42 Further, it was submitted that the sentencing judge erred in determining that the protection of the public was best served by the appellant being sentenced to a term of immediate imprisonment. At all material times, the appellant has been an involuntary patient under the Mental Health Act. It was submitted that the best protection for the public is for the appellant to be treated under that Act. According to counsel, the appellant would remain as an involuntary patient until relevant qualified mental health professionals were satisfied that he was not a risk to the public.

Mental illness of an offender: the Mental Health Act

43 The Mental Health Act states in its long title that it is an Act to provide for the care, treatment and protection of persons who have mental illnesses, and for related purposes.

44 For the purposes of the Act, a person has a mental illness if the person suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent: s 4(1).

45 The objects of the Act, as set out in s 5, include:

(a) to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity;

(b) to ensure the proper protection of patients as well as the public; and

46 Section 3 provides that in the Act, unless the contrary intention appears:

authorised hospital means -

(a) a public hospital, or part of a public hospital, that is for the time being authorised under section 21; and

(b) a private hospital whose licence is endorsed under section 26DA of the Hospitals and Health Services Act 1927;

...

community treatment order means an order of the kind provided for by Division 3 of Part 3;

...

involuntary patient means a person who is for the time being the subject of -

(a) an order under section 43(2)(a), 49(3)(a), 50 or 70(1) for detention of the person in an authorised hospital as an involuntary patient; or

(b) a community treatment order;

...

mentally impaired accused has the same meaning as in Part 5 of the Criminal Law (Mentally Impaired Accused) Act 1996;

...

psychiatrist means a medical practitioner whose name is contained in a register of psychiatrists prepared and maintained under s 17 by the Medical Board;

...

treatment in the community means treatment other than as an in-patient of a hospital.

(1) A person should be an involuntary patient only if -

(a) the person has a mental illness requiring treatment;

(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -

(i) to protect the health or safety of that person or any other person;

(ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or

(iii) to prevent the person doing serious damage to any property;

(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and

(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.

(2) The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are -

(a) serious financial harm;

(b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and

(c) serious damage to the reputation of the person.

48 Section 27(1) provides that, despite s 26, a person is not to be made an involuntary patient at any time after a custody order is made under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and before the person is released by the Governor under that Act. However, a mentally impaired accused who under that Act is released by the Governor on conditions may be made an involuntary patient: s 27(2).

(a) the Act requires that a person be permitted to leave an authorised hospital at the end of that person's detention; and

(b) at the time when the person is to leave the hospital the person is subject to an order under a law of the State or the Commonwealth requiring that he or she be kept in custody,

the person is to be permitted to leave only when he or she has been delivered into that custody.

50 Section 56(1) provides that s 56 applies to a person who:

(a) is a prisoner under the Prisons Act 1981 (WA);

(b) has under s 27 of that Act been removed to an authorised hospital; and

51 By s 56(2), before the person is released from the hospital the person, if not already an involuntary patient, is to be examined by a psychiatrist to determine whether the person should be made an involuntary patient.

52 As I recount later in these reasons, while considering the Prisons Act, s 27 of that Act has been repealed. The repeal took effect on 4 April 2007. Section 56(1) of the Mental Health Act has not been amended to reflect the new legislative scheme introduced by the Prisons and Sentencing Legislation Amendment Act 2006 (WA).

53 Section 43(1) provides that s 43 applies where a psychiatrist examines a person who, relevantly, is required to be examined under s 56.

The psychiatrist may if he or she believes that, having regard to section 26, the person should be made an involuntary patient, either -

(a) order in writing that the person -

(i) be detained in an authorised hospital as an involuntary patient; and

(ii) be admitted for that purpose;

or

(b) make a community treatment order in respect of the person.

Section 43(2) has effect subject to s 65 and s 66: s43(3).

55 Part 3 div 3 of the Act comprises s 65 - s 85. The division is headed 'Treatment of involuntary patient in the community'. Section 65, s 66 and s 67 read:

No detention without consideration of community treatment

A psychiatrist is not to make an order that a person be, or continue to be, detained as an involuntary patient without having considered whether the objects of this Act would be better achieved by making a community treatment order in respect of the person.

When a community treatment order may be made

(1) A psychiatrist is not to make a community treatment order in respect of a person unless satisfied that -

(a) treatment in the community would not be inconsistent with the objectives set out in section 26(1)(b);

(b) suitable arrangements can be made for the care of the patient in the community;

(c) a medical practitioner or mental health practitioner who is suitably qualified and willing to do so will be available to ensure that the patient receives the treatment outlined in the order; and

(d) a psychiatrist who is willing to do so will be available to supervise the carrying out of the order.

(2) A community treatment order cannot be made in respect of an involuntary patient to whom section 25(3) of the Criminal Law (Mentally Impaired Accused) Act 1996 applies.

General power to make a community treatment order

(1) A psychiatrist who has examined a person and believes, having regard to section 26, that the person should be made an involuntary patient may make a community treatment order in respect of the person.

(2) Subsection (1) is in addition to any other power in this Act to make a community treatment order.

56 At all material times, the Graylands Hospital has been an 'authorised hospital' for the purposes of the Mental Health Act.

57 By s 55 of the Act, if, during the appellant's term of imprisonment, the Act requires that he be permitted to leave Graylands Hospital and an order has not been made for his release on parole, the appellant will be permitted to leave Graylands Hospital only when he has been delivered into lawful custody under the Prisons Act.

Mental illness of an offender: the Criminal Law (Mentally Impaired Accused) Act

58 The Criminal Law (Mentally Impaired Accused) Act relates to criminal proceedings involving mentally impaired people who are charged with offences. The Act does not relate to a person who has been convicted of an offence. Accordingly, the Act does not apply to the appellant.

Mental illness of an offender: the Prisons Act

59 Before 4 April 2007, the Prisons Act contained s 27, which provided for the removal of a prisoner from a prison for medical treatment.

(1) Where the superintendent of a prison is of the opinion that a prisoner who is confined in that prison requires medical treatment that cannot, by reason of impracticality or urgency, be administered within the prison, the superintendent shall order the removal of the prisoner from the prison for the purpose of receiving such treatment and the return of the prisoner to prison after treatment.

(1a) In subsection (1) -

'medical treatment' includes psychiatric treatment, as defined in section 3 of the Mental Health Act 1996.

61 Section 27 was repealed by s 15 of the Prisons and Sentencing Legislation Amendment Act. The repeal of s 27 was part of numerous amendments made to the Prisons Act by pt 2 of the Prisons and Sentencing Legislation Amendment Act. Part 2 (including the repeal of s 27) came into operation on 4 April 2007. Part 2 introduced, amongst other things, new provisions with respect to the medical care of prisoners.

62 By s 95A of the Prisons Act:

(1) The chief executive officer is to ensure that medical care and treatment is provided to the prisoners in each prison.

(2) Subject to subsection (3), a prisoner may be attended upon and examined by a medical practitioner other than a medical officer only with the prior approval of the superintendent or a medical officer and with the prior approval also of the chief executive officer and for the purpose of providing to a medical officer an opinion on the medical condition of and the treatment recommended for the prisoner.

(3) The superintendent may, after consultation with the medical officer who is responsible for the medical care and treatment of the prisoner concerned, permit the prisoner to be attended upon and examined by a medical practitioner -

(a) for official purposes affecting that prisoner; or

(b) for the purposes of the proceedings or pending proceedings of a judicial body; or

(c) to facilitate the consideration or pursuance of any claim for compensation, damages, insurance, or other benefit by or in respect of the prisoner; or

(d) for any other purpose or proceeding which the superintendent and the chief executive officer are satisfied is bona fide and necessary or desirable.

63 Section 95B of the Prisons Act specifies the duties of medical officers. A 'medical officer' is a medical practitioner who has been appointed or engaged by the chief executive officer as a medical officer pursuant to s 6(3) or s 6(4). The duties of a medical officer include, on the request of the chief executive officer, examining and treating a prisoner who requires medical care and treatment: s 95B(g).

64 Section 83 of the Prisons Act is concerned with permits for a prisoner to be absent from prison. By s 83(1)(c), the objectives of s 83 include, relevantly, the facilitation of the provision of medical or health services to prisoners. The other provisions of s 83 read, relevantly:

(2) Subject to this section and the regulations, the chief executive officer may give written permission for a prisoner to be absent from a prison or other facility (an 'absence permit') -

(a) for a period specified in the absence permit; and

(b) for a reason described in the absence permit; and

(c) subject to any conditions or restrictions set out in the absence permit.

(a) for a purpose or in circumstances prescribed in the regulations; or

(b) to deal with circumstances that are, in the chief executive officer's opinion, exceptional,

(4) One absence permit may be given in relation to -

(a) more than one prisoner;

(b) more than one period of absence.

(5) The chief executive officer is not to give an absence permit unless the chief executive officer is satisfied that the absence will facilitate the achievement of one or more of the objectives of this section.

(6) The chief executive officer is not to give an absence permit in relation to a prisoner for the purpose of the prisoner engaging in employment unless the chief executive officer is satisfied that suitable employment is available.

(7) When considering -

(a) whether to give an absence permit; and

(b) the conditions or restrictions to which an absence permit is to be subject; and

(c) whether and what arrangements are to be made for the supervision of a prisoner in relation to whom an absence permit is to be given,

the chief executive officer must take into account the safety and interests of the public. (original emphasis)

65 Regulation 54D of the Prisons Regulations 1982 (WA) provides that, for the purposes of s 83(3)(a) of the Act, a 'prescribed purpose' is, or 'prescribed circumstances' are, relevantly, 'facilitating the provision of medical, dental or other approved ancillary health services to a prisoner': reg 54D(k). Regulation 54F(2) provides, relevantly, that every prisoner is eligible to receive an absence permit for a purpose or in circumstances mentioned in reg 54D(k).

66 By s 83A of the Prisons Act, an absence permit has effect despite the sentence, order or direction under which a prisoner was confined in prison. By s 83B, the chief executive officer may at any time revoke, suspend or vary an absence permit whether or not a prisoner has failed to comply with a condition or restriction set out in the absence permit.

67 Section 17 provides that, subject to the Act, a prisoner who is in prison or with lawful authority is in some other place shall be taken to be serving his sentence.

68 Several points of relevance to the present case may be made about this review of the Prisons Act and any period in which the appellant is held in prison. First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public.

Mental illness of an offender that is self-induced

69 It is well-established that where an offender's mental illness or psychological difficulties have been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is not generally to be regarded as mitigating the offence. In these circumstances, the offender is generally to be regarded as morally responsible for his or her condition. See R v Wright (1997) 93 A Crim R 48; R v Martin [2007] VSCA 291; Damiani v The State of Western Australia [2006] WASCA 47 [41] - [42]; Butler v The State of Western Australia [2010] WASCA 104 [8].

Mental illness of an offender that is not self-induced

70 It is also well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.

71 The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on several occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35.

72 The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Wheeler v The Queen [No 2] [2010] WASCA 105 [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10].

73 In Verdins, the Court of Appeal of Victoria referred to the principles enunciated in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 in relation to the sentencing of an offender with temporary or permanent impaired mental functioning. The court in Verdins (Maxwell P, Buchanan & Vincent JJA) reformulated the principles in Tsiaras (which had been applied in a number of Australian jurisdictions), as follows:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (see, for example, Payne at [43]).
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment [32].

See also Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1 [10].

74 As Wheeler JA (Owen & Newnes JJA agreeing) noted in Krijestorac [18] - [19]:

Verdins is useful ... for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that paras (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State.

75 In Leach, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

76 The principles relating to the suspension of a term of imprisonment are set out in my reasons in The State of Western Australia v Johnson [2009] WASCA 224 [67] - [72] (Owen & Wheeler JJA agreeing). It is unnecessary to repeat them.

77 At all material times, the maximum available penalty for the offence of unlawful wounding in circumstances of aggravation, contrary to s 301(1) of the Code, has been 7 years' imprisonment.

78 The objective circumstances of the appellant's offending were particularly serious. The potential threat to the complainant's health was severe. Although the complainant's injuries were not deemed to be life-threatening or likely to cause permanent injury to health, the nature of the appellant's attack had the potential to have those consequences. The appellant's actions were unprovoked and committed without warning in the complainant's bedroom and in front of his partner. The impact of the offending upon the complainant, as outlined in his victim impact statement, has been physically and emotionally significant.

79 There were, of course, several factors which mitigated the extent to which the appellant deserved to be punished. These were his plea of guilty, his youth, the absence of a prior criminal record and his psychiatric illness.

80 There do not appear to be any sentencing decisions which are truly comparable with the circumstances of the appellant and his offending. There is no doubt, however, that without the mitigating factors to which I have referred, the appellant would have received a term of imprisonment much closer to the statutory maximum.

81 The sentencing judge found that the appellant's psychiatric illness contributed to the commission of the offence and that there was no doubt that this illness was 'the overlying contributing factor to the commission of this offence, and that of course must be reflected in the sentence' (ts 14).

82 It is important, in evaluating the challenge to the sentencing outcome, to emphasise that the appellant's psychiatric illness was, in part, self-induced. Dr Pascu said in her report dated 16 October 2009 that:

At the time of the offence [the appellant] had been using significant illicit substances and it is difficult to know exactly how much of his psychosis was due to his mental illness and how much to the combination of his illness and the illicit substances.

[Dr Pascu] says that you had been exhibiting bizarre disastrous behaviour over the years, which may have been explained by substance abuse. However, a closer examination of your history shows that your condition had deteriorated in 12 months before the offending, and she said that may well be explained by an evolving severe mental illness of paranoid schizophrenia, complicated by your illicit substance abuse. She said that your mental state was affected by the symptoms, including auditory hallucinations.

It was clear that you had been using illicit substances. It was difficult to know how much of your psychosis was due to mental illness and how much was the result of your combination of illness and the use of those substances, but she does refer to the fact that since you have been in remand, you have remained actively psychotic, thought disordered, and preoccupied despite being treated with antipsychotic medication, and she says this clearly suggests that there is an underlying mental illness which has not responded to the treatment (ts 13).

84 The sentencing judge recognised, correctly, that in sentencing the appellant it was necessary to consider the extent to which his psychiatric illness made him a danger to the public and, hence, the extent to which the sentencing outcome must protect the community (ts 14). His Honour noted, in this regard, that Dr Pascu considered the appellant's prognosis to be 'guarded' (ts 13). In her report dated 16 October 2009, Dr Pascu said that 'given his underlying psychosis and lack of insight [the appellant] has been closely observed by staff due to the possibility of unpredictable violent outbursts'.

85 His Honour referred to the need for the sentence he imposed on the appellant to take into account general deterrence, specific deterrence and punishment. I am not persuaded that his Honour placed undue emphasis on these considerations. He said, correctly, that there was 'a need to protect the public' and 'a need to punish [the appellant]' (ts 14). But he went on immediately to accept 'entirely' that specific deterrence and, to some extent, general deterrence were moderated by the appellant's psychiatric illness (ts 14).

86 Later in his remarks, the sentencing judge expressed the opinion that the need for specific and general deterrence, protection of the public and punishment of the appellant were such that immediate imprisonment was the only appropriate sentencing disposition, notwithstanding the appellant's psychiatric illness (ts 15).

87 The appellant clearly posed a risk to public safety and I understand the sentencing judge to have referred to specific deterrence in the context of the possibility of the appellant re-offending, and the need to protect the community from this possibility eventuating.

88 I am satisfied that the sentence imposed by the sentencing judge is not plainly unreasonable or unjust when it is examined from the perspective of the maximum available penalty, the customary standards of sentencing, the objective seriousness of the offending and the appellant's personal circumstances. The sentence of 2 years' imprisonment reflected, appropriately, the need for general deterrence, specific deterrence and punishment, even though the importance of these sentencing considerations was diminished by the significant mitigatory factors of the early plea of guilty, the appellant's youth, the absence of a prior criminal record and his psychiatric illness. The protection of the community was a relevant matter to be taken into account and, in the circumstances, had to be given substantial weight. The objective seriousness of the offending and the need to protect the community made a term of imprisonment to be served immediately the only appropriate sentencing option. I am unable, on the basis of the sentencing outcome, to infer the existence of error.

89 Further, I am not persuaded that the sentencing judge erred in determining that the protection of the public was best served by the appellant being sentenced to a term of immediate imprisonment. My examination of the relevant provisions of the Mental Health Act, the

Prisons Act and the Prisons Regulations reveals a legislative scheme to ensure that offenders who are sentenced to a term of immediate imprisonment will be able to receive proper medical (including psychiatric) care while in custody. In particular, the duties and powers of the chief executive officer of the Department in relation to absence permits enable a sentenced prisoner who requires psychiatric treatment to be transferred from prison to an authorised hospital for that purpose, as necessary. The apparent policy of the Parliament, as discerned from the provisions of the Mental Health Act and the Prisons Act to which I have referred, is that whether a sentenced prisoner should be held in prison or an authorised hospital is to be determined by administrative decision-making in accordance with those provisions.

90 In the criminal justice system, it is the role of the sentencing judge, and not the mental health authorities, to decide, in the context of a sentencing hearing, the extent to which the public requires protection from an offender who is suffering from a psychiatric illness, and the type of sentence that will achieve this outcome and satisfy all other relevant sentencing considerations. If, as in the present case, the sentencing judge imposes a term of immediate imprisonment then the ongoing psychiatric treatment of the offender will be dealt with, for the duration of the sentence, by the interaction of the relevant provisions of the Mental Health Act, the Prisons Act and the Prisons Regulations. The sentencing judge makes his or her determination of the appropriate sentence on the basis of all of the materials before him or her, and by reference to the applicable provisions of the sentencing legislation and any relevant common law principles. The sentencing judge and the mental health authorities have separate and distinct statutory functions, which are able to co-exist harmoniously.

92 I would grant leave to appeal on grounds 1 and 2 but, for the reasons I have given, the appeal should be dismissed.

Sentencing Legislation Amendment Act 2006

Law (Mentally Impaired Accused) Act 1996

Health Services Act 1927

SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 176 (9 September 2010)

At a glance

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Judgment (170 paragraphs)

SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 176 (9 September 2010)

Legislation Cited (4)

Cases Cited (2)