Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of three offences - Unchallenged expert evidence that the appellant was experiencing an acute relapse of a serious psychiatric illness at the time of the offending and that there was a causal connection between the relapse and the commission of the offences - Concession by the prosecutor at the sentencing hearing that the appellant should be sentenced on that basis - Sentencing judge rejected the prosecutor's concession - Sentencing judge not satisfied on the balance of probabilities that at the time of the offending the appellant was suffering from an acute relapse of his serious psychiatric illness - Procedural fairness - Application to admit additional psychiatric evidence in the appeal - Whether a miscarriage of justice occurred when the appellant was sentenced by the sentencing judge

Criminal Appeals Act 2004 (WA), s 40(1)(e)

Criminal Code (WA), s 401(2)(a), s 444(1)(b), s 445A

Sentencing Act 1995 (WA), s 9AA, s 15

Appellant's application for leave to adduce additional evidence in the appeal granted

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Baroudi v The Queen [2007] NSWCCA 48

Button v The Queen [2010] NSWCCA 264

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

IEB v The State of Western Australia [2015] WASCA 207

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

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

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

Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243

Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Phillips v The State of Western Australia [2011] WASCA 69

R v Engert (1995) 84 A Crim R 67

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Uzabeaga [2000] NSWCCA 318; (2000) 119 A Crim R 452

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v Wright (1997) 93 A Crim R 48

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Smith v The State of Western Australia [2010] WASCA 176

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

The State of Western Australia v Hyder [2011] WASCA 256

The State of Western Australia v Khasay [2014] WASCA 58

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Weir v The Queen [2011] NSWCCA 123

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

1 BUSS P: The appellant appeals against sentence.

2 He was convicted, on his pleas of guilty in the Supreme Court before Fiannaca J, on three counts in an indictment.

3 Count 1 alleged that on 10 July 2015, at Fremantle, the appellant, being a person who was in control of a source of ignition, unlawfully omitted to do an act which it was his duty to do, namely to use reasonable care and to take reasonable precautions to avoid lighting a fire that may have destroyed or caused damage to property, being a house and carport, that he was not entitled to damage, contrary to s 445A of the Criminal Code (WA) (the Code).

4 Count 2 alleged that, on the same date and at the same place as count 1, the appellant, while in the place of Rachel Joan Cobb without her consent, committed the offence of criminal damage, and that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place, and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Code.

5 Count 3 alleged that, on the same date and at the same place as count 1, the appellant wilfully and unlawfully damaged a television, furniture and a mobile telephone, contrary to s 444(1)(b) of the Code.

6 On 18 March 2016, the sentencing judge imposed individual sentences as follows:

7 His Honour ordered that the sentence for count 2 commence 1 year after the sentence for count 1. The total effective sentence was therefore 4 years' immediate imprisonment. The total effective sentence was backdated to 10 July 2015, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.

8 On 20 September 2016, this court heard the appeal. At the conclusion of the hearing, orders were made as follows:

1. Leave to appeal granted on ground 2.
2. Leave to appeal refused on ground 3.
3. The appellant's application for leave to adduce additional evidence in the appeal granted.
4. Appeal allowed.
5. The sentencing decision of the sentencing judge is set aside.
6. The appellant is resentenced as follows:

(a) on count 1, to a term of 2 years' immediate imprisonment;

(b) on count 2, to a term of 2 years' immediate imprisonment; and

1. The new sentences for counts 1 and 2 are to be served concurrently with each other.
2. The new sentences are to be taken to have taken effect on 10 July 2015.
3. The appellant remains eligible for parole.

9 We said that our reasons for making those orders would be published later. My reasons are as follows.

The facts and circumstances of the offending and the appellant's video-recorded interview with the police

10 The sentencing judge recounted the facts and circumstances of count 1 as follows:

The offences took place at the home of Rachel Cobb in Fremantle. The unit in which she lived was owned by the Department of Housing.

You [that is, the appellant] had been in a relationship with Ms Cobb for about seven years. The relationship ended in June of 2014. There are two children from that relationship, daughters who, at the time, were aged 5 and 4 years. They were living with Ms Cobb at the unit.

At 5.50 pm on Friday, 10 July 2015, you went to Ms Cobb's home and gained access to the rear of the property. Your car was parked there under a communal carport. You had left it parked there for quite some time and it was not able to be driven. Sometime before 10 July 2015, Ms Cobb had come home one day to find that the car's windows had been smashed.

It seems the windows had not been repaired when you went to the carport on the day of the offences. There was a container of fuel stored in the boot of the car, which you took out. You then poured a considerable amount of the petrol into the car through the front window opening on the passenger side of the car. You then used a lighter to ignite the petrol. This caused a fireball which partially engulfed you. The fire took hold. It destroyed the car and caused minor damage to the structure of the carport surrounding the car. The heat from the fire also caused minor smoke damage to the exterior of the building, which was later washed away by rain. The fire also threatened to engulf other vehicles which were parked nearby. It also threatened to spread to Ms Cobb's unit. You knew she was in there with your children.

You received some burns to your face and hands from the fire, but the fire had the potential to have more catastrophic consequences. There was a real risk that lives could be lost, or that serious injury could be caused to Ms Cobb and the children, and maybe others, if the fire had spread. As it happened, the fire brigade attended and the fire was extinguished without having caused any significant damage to the building.

Those facts form the basis of the first charge, the breach of duty while in control of something that could light a fire [11] - [16].

11 Next, his Honour described the facts and circumstances of counts 2 and 3:

Ms Cobb, who had been bathing the children had become aware of flickering light outside and went to a window to investigate. She saw you [that is, the appellant] near the car and flames and smoke coming from the car. She ran to the bathroom to get the girls and took them to her bedroom upstairs, to dress them in order to get out of the house.

Having set the car alight you decided to enter the house, knowing that Ms Cobb did not want you in the house, and knowing she and the children were in the house. You used your hands and an unknown object to break a window at the side of the house and climbed through the opening into the lounge room.

Ms Cobb heard you enter and took refuge with the girls in the bedroom by closing the door.

You made your way through the house, smashing numerous items of property, including the television, glassware and pottery. You also pulled books out of bookcases and pulled down bookshelves. Apart from causing considerable damage, you created significant obstacles for someone who might try to get access to the bedroom or leave the house.

Ms Cobb, who could hear the sound of things breaking downstairs, called the emergency number on her mobile telephone and started to tell police communications what was going on.

Eventually you made your way to the upstairs bedroom where you forced entry. Ms Cobb and the children were cowering in the bedroom. You grabbed the mobile phone from her and smashed it on the floor, terminating her call to the police. You demanded to know where your things from school were. Ms Cobb said she did not know what you were talking about. Your daughters were clinging to their mother, clearly terrified.

At one stage Ms Cobb had backed away from you onto a balcony and she could see neighbours gathered outside. One of those neighbours has said in her statement that Ms Cobb looked terrified.

You forcefully grabbed hold of your youngest daughter by both arms and lifted her off the ground. Despite Ms Cobb's pleas, screaming to you to give the girl back, and despite the child screaming to her mother, you took your daughter downstairs and tried to leave.

However, neighbours had gathered outside and one had kicked the front door in, fearing for the safety of the occupants. One of the neighbours pleaded with you to hand over your daughter. Eventually you did so.

There are statements from two of the neighbours. It is clear from their statements that your youngest daughter was traumatised by the events. As you carried her out of the unit she was yelling for her mum. The neighbour who took her says that she was screaming and looked terrified. The neighbour says: 'The little girl was in such a state of hysteria, I could not calm her'.

Another neighbour had gone into the house and called to Ms Cobb to get out. She says in her statement that there was a big bookshelf blocking the door to Ms Cobb's bedroom. However, Ms Cobb and your 5-year-old daughter were able eventually to make their way down the stairs, negotiating the obstacles that you had created, and were able to get out of the unit.

Your actions in breaking into the unit and destroying and damaging property while you were in there form the basis of the aggravated burglary and criminal damage charges [17] - [28].

12 The sentencing judge then summarised the appellant's admissions in an electronically recorded interview with the police in the early morning of 12 July 2015 (shortly after midnight on 11 July 2015):

You [that is, the appellant] left the scene, but were arrested by police while you were still close by a short time later. You were taken to hospital for treatment and later to the Fremantle Police Station.

Just after midnight on 11 July 2015, you took part in an interview with police, which was recorded on video. I have watched that video.

You admitted the offences. You said you went to Ms Cobb's place for your school paperwork. You later clarified that there were other documents, including family letters and photos that you wanted to retrieve. In her statement, Ms Cobb says that when you forced your way into her bedroom, you demanded to know where your things from school were. I am prepared to accept, therefore, that at least one of your reasons for going into the unit was to retrieve documents connected with your education.

You said in your interview that you could hear Ms Cobb and the children inside, and you could see lights on. You said that you knocked on the door but Ms Cobb ignored you. You said you got upset and set your car on fire, using petrol from the boot and a lighter. You said you got burned and that upset you more.

You said you had been stressed because you could not find work and Ms Cobb would not let you see the children.

I should note at this point that Ms Cobb says in her statement that she had previously allowed you to see the children, but she had sought a restraining order against you because of an incident that had happened a short time before 10 July 2015.

You said in your interview that you set fire to the car because you did not like it, but, in my view, the overall effect of your answers is that you really did it because you got angry when Ms Cobb would not open the door for you. Later in these remarks I will refer to the report of the psychiatrist, Dr Pascu, who interviewed you in November 2015 and January 2016. You told Dr Pascu that you did not want your 'ex' and her boyfriend to drive your car with your girls, as it was your car. You also said you did not want anyone else to have it, as it was your car. It seems, therefore, that there was also an element of jealousy that was fuelling your anger and which caused you to set your car on fire.

Returning to your interview with the police, you said that, after setting the car alight, you broke the living room window and got into the house that way in order to look for your papers. You said you became upset when you could not find your papers, and you started pulling things down and breaking things. You said you then went upstairs and asked Ms Cobb where your paperwork was, and she said she did not have it. You admitted grabbing the phone from her and smashing it, but claimed you did not know who she was speaking to.

You said that you became aware that the fire appeared to be spreading and people outside were saying there was a fire. You thought the house might catch on fire. You said that is why you grabbed your 4-year-old daughter and took her downstairs. You acknowledged she was crying. You said you threw the bookshelf down the stairs when you were coming down. You said you were angry. You denied you put obstacles in the way to prevent Ms Cobb and your 5-year-old child from getting out.

In summary, your explanation for the damage and destruction you caused in the unit was that you were upset because you could not find your paperwork and because Ms Cobb had not let you in and would not let you see the children [29] - [38].

13 His Honour described the appellant's personal circumstances as follows:

I will now outline your [that is, the appellant's] personal circumstances. They are taken from the pre-sentence and psychiatric reports, from Ms Cobb's statement and from information provided by your counsel, Ms Zillessen, during her plea in mitigation. The court has received two pre-sentence reports, dated 13 November 2015 and 11 February 2016, and two psychiatric reports from Dr Pascu, dated 9 November 2015 and 21 January 2016.

You were 27 [years] of age at the time of the offences. You are now 28. You do not have the benefit of youth as a mitigating factor, although you are still young.

Your history is set out in Dr Pascu's report of 21 January 2016 and was obtained largely from your medical file, as you did not wish to discuss your background.

You were born in Kenya, where you grew up and worked on a farm and (to quote Dr Pascu) 'selling things on the beach'. There is no documented history of trauma or abuse in the family. However, you have told Ms Zillessen that you were a street kid in Africa, and you started using cannabis from the age of 10.

It appears you arrived in Australia approximately 12 years ago. You have been a permanent resident since 2008.

You have a minor criminal record from 2006 to 2011 that is not relevant for present purposes, except that it includes an offence of possessing cannabis in 2010, and cannabis use may have contributed to your offending in this instance.

According to Ms Cobb's statement, the two of you met in 2008. You subsequently had the two children together.

Ms Cobb says that you developed mental health problems while she was pregnant with your youngest child in 2010. However, Dr Pascu says that you told medical staff at Hakea Prison that you were diagnosed with schizophrenia in 2007 or 2008. In any event, it appears that your mental health issues have been known for some years. You have been diagnosed as suffering from paranoid schizophrenia. However, your mental health problems are complicated by the fact that your cannabis use may have triggered or contributed to psychotic symptoms over time.

Ms Cobb says that the incident in 2010 involved strange behaviour which included you making threats and destroying some property. This resulted in you being admitted as an involuntary patient to a mental health clinic.

It appears that, after that, there was a period when you were separated from Ms Cobb, but she eventually took you back at the unit in Fremantle. While in Fremantle, you attended at the Alma Street Mental Health Clinic for treatment as an outpatient. I will come back to the medical evidence shortly.

Your relationship with Ms Cobb deteriorated. She identifies your use of alcohol and jealousy as factors that contributed to that breakdown. She asked you to leave in June 2014, after what she has described as an explosive argument.

At the time of the offences, you had been separated from Ms Cobb for about a year. During that time, she had allowed you to see the children, and you had even looked after them, including picking them up from school. I accept that you enjoyed your time with your children, and that they are very dear to you. Of course, it makes all the more terrible your behaviour in their presence at the time of the offences.

In any event, there were a few incidents during the period between the separation and the time of the offences when you became abusive towards Ms Cobb, and one of those, in June 2010, resulted in her seeking a violence restraining order against you. She also contacted the Alma Street Clinic to check if you had been attending for treatment.

You had casual part-time work, on and off, but, at the time of the offences, according to what you told Dr Pascu, you were unemployed. I was told that you were not receiving Centrelink payments. You had been living either with friends, 'couch-surfing', or on the streets.

You were working towards getting your driver's licence. You also had sat the test to become an Australian citizen and passed, and you were to receive your citizenship certificate in the near future.

I have been informed that you remain the holder of a Permanent Residency Visa, and that you will be deported to Kenya and permanently excluded from Australia under s 501(7)(c) of the Migration Act 1958 (Cth) if you are sentenced to a term of suspended or immediate imprisonment of 12 months or more. No doubt that will be a very sad outcome for you, especially if you still hold hope of seeing your children some day in the future. Of course, I must impose a sentence that is appropriate for the offences and, given the seriousness of the offences, inevitably, that will involve a term of imprisonment well in excess of 12 months, whether immediate or suspended.

You have been a regular user of cannabis and alcohol. You told Dr Pascu that you had a few years of abstinence from cannabis, but started using again in 2013, and increased your use in 2014 in the context of the breakup of your relationship with Ms Cobb. You described using significant amounts of cannabis [69] - [85].

14 The sentencing judge examined the evidence as to the appellant's mental illness and made a number of findings:

Turning to the medical evidence concerning your [that is, the appellant's] mental health in the lead up to the offences, [defence counsel, Ms Zillessen] provided the following outline from medical records she obtained from the clinic:

1. From July 2014 until May of 2015, you were attending the Alma Street Clinic as an outpatient and receiving depot injections. During that period, you reported ongoing cannabis use, but said you were smoking less than in the past.
2. On 9 June 2015, you attended at Alma Street Clinic, after making a phone call the previous day, requesting to see a doctor. I have been provided with the notes from that visit. You said you were not feeling well. You reported increased paranoia and said you were feeling depressed. You were not able to identify a clear trigger for your paranoia and you denied any drug use. You expressed concern about going to see your children while you were not mentally stable, as it might cause you to do irrational things. The examination of you at that time showed that you had no formal thought disorder; you were not responding to internal stimuli; you had good judgement and insight; and your cognition was good and intact. The notes record there were no acute risks, although it is not evident what risks are being referred to. Whatever they were, the note says they were 'elevated when unwell'. The author noted the impression that you were suffering mild paranoia, in the early stages of relapse of paranoid schizophrenia. You were offered olanzapine which you agreed to take to help you with your sleep. You were to be followed up in one month's time.
3. On 23 June 2015, Ms Cobb attended the clinic and said she was concerned about you.
4. On 29 June 2015, you attended the clinic, requesting your medication. You said that you had been very unwell for the last two weeks and had had auditory command hallucinations that were bothering you. You thought that may have been the reason for your problems with Ms Cobb around that time. You declined a hospital admission at that time. Although concern was expressed by the person who saw you about your personal circumstances, I have not been given any information to suggest that you were assessed to be suffering from any particular symptoms when you presented.
5. Two days later, on 1 July 2015, you again attended at the clinic requesting accommodation support and more medication. At that time, you were recorded as having no psychotic symptoms. The record states that you had been compliant with medications but you said you disliked the injections and asked if you could be changed to oral tablets. After discussion, you agreed to continue with injections for another six months.

So, that is the information from that time about the state of your mental health before you committed the offences. You subsequently told Dr Pascu, on 2 November 2015, that when you were seen at the clinic, before the offences, you were feeling stressed in the context of marriage difficulties, but you denied feeling unwell.

During your interview with the police on 11 July 2015, you come across as relatively normal. You do not display overt irrational behaviour or beliefs, as your counsel has acknowledged. Your answers to questions are contextually appropriate. There is no indication whatsoever of being distracted or reacting to internal stimuli. In short, there is no evidence of thought disorder. You provide ordinary explanations for your offending behaviour, as I have described earlier.

Ms Zillessen has submitted on your behalf, however, that I should find that you were psychotic at the time of your offences and that your mental illness has contributed to the offending in a manner that reduces your moral culpability. The submission relies on the deterioration of your mental health after you were remanded in Hakea Prison and the opinions expressed by Dr Pascu in her reports.

Dr Pascu reports that in Hakea Prison your medication was reviewed and you were followed up by a mental health nurse and a visiting psychiatrist. You were described as responding to unseen stimuli, looking perplexed at times and likely experiencing referential delusions from the television. You were reviewed by a psychiatrist on 20 August 2015 and were diagnosed as suffering an unstable psychotic disorder with possible depressive symptoms or emerging catatonic state. Your medication was reviewed and you were followed up in prison.

Over the following couple of months, your mental state deteriorated. Dr Pascu considers that it was likely due to erratic compliance with the oral medication. During reviews, the underlying psychotic symptoms became more prominent. Also during the period from 20 July until 25 October 2015, you engaged in aggressive behaviour within the prison, damaging property (including a television), assaulting other prisoners and refusing to attend to your personal hygiene. All of those incidents were recorded.

You were referred to the Frankland Centre under the Mental Health Act 2014 (WA) on 27 October 2015, for assessment and treatment of your psychosis.

Dr Pascu interviewed you on 2 November 2015, while you were an involuntary patient in the Frankland Centre. At that time Dr Pascu described you as psychotic and at times thought-disordered, with illogical thinking and at times difficult to follow in your conversation. She said you became perplexed, as if responding to unseen or unheard stimuli, and you asked to leave the room. You did not appear to have any understanding of your circumstances or the court processes. It seems to me that this is in stark contrast to your appearance and behaviour during the police interview.

You were discharged from the Frankland Centre on 9 November 2015. On your return to Hakea Prison you again engaged in aggressive behaviour during November and December of 2015, incurring charges for wilfully damaging the cell toilet, a television and a cell window. You were also threatening and abusive towards prison officers and nurses. Your conduct resulted in a further referral to the Frankland Centre on 26 November 2015, but you returned to Hakea Prison on 8 December 2015.

When you were interviewed again by Dr Pascu on 5 January 2016, this time at Hakea Prison, she described you as pleasant and cooperative. She said you gave good, appropriate eye contact, and rapport was easily established. She said you could not remember the previous interview at the Frankland Centre. Dr Pascu said there was no evidence of agitation, distress or aggression. Your speech was of normal rate and volume and you were spontaneous and fluent. There was no evidence of formal thought disorder. You did not appear distracted and you did not appear to be responding to stimuli.

I note that the description given by Dr Pascu on this occasion appears to correlate with your appearance and behaviour in the police interview.

During that second interview with Dr Pascu, you denied having any current auditory or other hallucinations, but you were vague as to whether you had experienced them in the past. You said your mood was better. Dr Pascu was of the opinion that you had limited fluctuating insight into your mental illness, and the benefits of the treatment you had received. She considered that your judgment was reasonable. You were alert and orientated and appeared to be cognitively grossly intact.

Dr Pascu's diagnosis, on both occasions that she saw you, was that you had suffered from a psychotic illness, most likely a 'relapse of paranoid schizophrenia, secondary to cannabis use, erratic compliance with treatment and psychological stressors'. On the second occasion she considered you were in partial remission. Her further diagnosis on both occasions was that you had a mental and behavioural disorder due to alcohol and cannabis. She noted you were abstinent while in custody.

In her report of 9 November 2015, Dr Pascu expressed the following opinion:

'Mr Suleiman has a psychotic illness, paranoid schizophrenia, chronic with an acute relapse of his illness, most likely in context of the stress of his marriage break-up, complicated by increased alcohol and cannabis use, and in my opinion, insufficient or no medication in the community. I believe that his mental illness was undertreated in the community more so given the increased stress of his relationship deteriorating.

In relation to his offences, I believe that due to his illness not being adequately treated, with his increasing use of cannabis to cope with his emotional problems, his judgment was most likely impaired at the time of committing the offences, due to his mental illness [35] - [36].'

In her report of 21 January 2016, Dr Pascu expressed the same opinions, except that in respect of the first phrase she said:

'Mr Suleiman has a psychotic illness, paranoid schizophrenia, chronic, with an acute relapse of his illness at the time of the offences ... [35].'

It was not apparent from the first report that Dr Pascu was suggesting that you had an acute relapse of your mental illness at the time of the offences, although she referred to the likelihood that your judgment was impaired. There is nothing in the second report, in my view, that explains the temporal connection of the acute relapse to the offences. There could be no doubt that when Dr Pascu saw you, you were very unwell, but there appears to have been a deterioration of your condition after you were remanded in Hakea Prison.

Dr Pascu has referred to the materials she considered. I note that she does not refer to the police video interview. It is perhaps surprising that she would not have watched the interview, as it depicts you at a time very close in time to when the offences were committed. Ms Zillessen has submitted that I can place little weight on your demeanour in that interview. With respect, I disagree. Self-evidently the interview is not medical evidence, as Ms Zillessen has submitted, but the assessment of your mental state at the time is not dependent solely on medical evidence. The difficulty is that we do not have a medical opinion concerning your condition during the interview, because Dr Pascu has not considered it. My impression, as I have already pointed out, is that your presentation during that interview is entirely inconsistent with your presentation for Dr Pascu's first interview with you, but appears to correlate with the description she gives of your presentation during her second interview with you. During that second interview she considered that you were in remission.

Dr Pascu's expertise, of course, is not in doubt, and I am mindful of the need to give proper weight to an expert's opinion, where it is not contradicted by other expert evidence, unless there is good reason to depart from it. The police video record of interview, which has not been viewed by Dr Pascu, is an important piece of evidence that, in my view, provides good reason to question whether you had an acute relapse of your mental illness at the time of the offences.

Ms Zillessen has submitted that the fact that you were diagnosed as being in the early stages of relapse of paranoid schizophrenia on 9 June 2015, and you then had a worsening of symptoms when you were assessed in prison in August 2015, means that the only reasonable inference is that you were likely to be materially affected by mental illness on 10 July 2015. With respect, the process of reasoning is flawed, in that it assumes a linear development of psychotic symptoms, when there is no evidence to support that as a general proposition, and it ignores evidence such as the medical note on 1 July 2015 that you had no psychotic symptoms at that time and your presentation on the police video interview [86] - [104].

The sentencing judge's rejection of the State's concession as to the appellant's mental illness and its role in the offending

15 Dr Victoria Pascu is a consultant forensic psychiatrist. Prior to the sentencing hearing, the court appointed her to assess the appellant's mental state.

16 The State conceded at the sentencing hearing that Dr Pascu's reports dated 9 November 2015 and 21 January 2016 confirmed that the appellant had suffered an acute relapse of his mental illness at the time of the offending and that there was a causal connection between the relapse and the commission of the offences. His Honour rejected the concession. He was not satisfied, on the balance of probabilities, that at the time of the offending the appellant was suffering from an acute relapse of his mental illness. His Honour's reasoning was as follows:

The State's concession that Dr Pascu's [reports confirm] an acute relapse of your [that is, the appellant's] mental illness at the time of the offences and the concession of a causal connection between such a relapse and the commission of the offences appears to overlook the evidence I have referred to and the fact that Dr Pascu did not view the video interview. Further, the State does not appear to have undertaken the kind of analysis that I have undertaken. I am not bound by the concession. I am not satisfied on the balance of probabilities that at the time of the offences you were suffering from an acute relapse of your mental illness.

However, I accept that your underlying organic illness, affected by your use of cannabis and alcohol may have reduced your inhibitions and impaired your judgment to some extent. It may also have caused you to feel paranoid about Ms Cobb seeing other men and using your car, even though she says the car was not functional at that time.

The difficulty, however, is teasing out the extent to which your substance abuse is responsible for any such impairment or paranoia. Dr Pascu described the relapse of your paranoid schizophrenia as being secondary to 'cannabis use, erratic compliance and treatment and psychological stressors'. So, to the extent that your conduct has been affected by your paranoid schizophrenia, any relapse has been brought on by your cannabis use, in combination with other factors. Further, Dr Pascu considers that you have a mental and behavioural disorder that is due to alcohol and cannabis use. So, the question arises whether any impairment of your judgment might have been due to that disorder. Again, your alcohol and cannabis use would appear to be the cause of any such impairment.

[Defence counsel, Ms Zillessen] has submitted that, as a matter of logic, mental illness can be a cause of substance misuse, due to impaired judgment; the substance misuse then aggravates the mental impairment and makes further substance use more likely. She has submitted that the reduction in moral culpability that attaches to impaired judgment due to mental illness should therefore extend to a reduction in moral culpability for the misuse of substances where there is an underlying mental illness, as in your case. Again, with respect, I do not consider the proposition to necessarily be a matter of logic or to be universal. It may be accepted that persons with mental illness will sometimes seek to self-medicate with alcohol or illicit substances, and their judgment may be impaired by their underlying condition in making those choices. However, it is necessary to consider the particular circumstances of the individual and the factors that have led to alcohol or illicit substance misuse. Otherwise it simply becomes a 'bootstraps' argument.

In your case I am not satisfied on the medical evidence that your substance misuse was attributable to your mental illness in a manner that would lessen your moral culpability. It is clear that you have been using cannabis for a long time, including at times when you have been free from symptoms of your mental illness [105] - [109].

The sentencing judge's findings in relation to mitigation

17 The sentencing judge made these findings in relation to mitigation:

Having considered all of the materials that are before the court and the submissions made on your [that is, the appellant's] behalf and on behalf of the State, I consider your mental illness provides only limited mitigation in terms of its contribution to your offending in the manner that I have already mentioned. I am not satisfied you were suffering an acute relapse of psychotic symptoms at the time of the offences, and to the extent that your judgment was impaired and you had paranoid thoughts, your use of cannabis and alcohol and your behavioural disorder complicate the issue of causation. I am of the view that your moral culpability is diminished to only a small extent and I will take that into account.

Because of that finding I do not consider that your case should be regarded as an inappropriate vehicle for general deterrence. Again, however, the extent to which the sentence will reflect that objective will be less than it otherwise would have been.

Although you have been treated and appear to be doing well, in terms of your mental health, I accept that:

1. your need for continuing treatment; and
2. the potential for you to relapse into symptoms of the kind that resulted in a number of incidents of misbehaviour being recorded against you while you have been in remand,

will mean that prison is likely to be more difficult for you than for someone who does not have an underlying mental illness. Dr Pascu believes that you will require long term follow up and psychiatric treatment for your mental illness.

I also accept that your time in prison on remand has been difficult because of the deterioration for a period of your mental health.

I have taken each of those matters into account in determining the appropriate sentence.

I accept that you were not indifferent to your mental health needs. In other words, you were aware of the need to obtain treatment and you did seek treatment. However, that does not have particular significance as a mitigating factor because of my findings that your mental health does not substantially reduce your moral culpability in the circumstances of the case. It does mean, perhaps, that one might have some confidence that you will try to keep your mental health problems under control in the future, when you come to be released from prison.

An obvious, very significant mitigating factor is your plea of guilty at the earliest opportunity. I will discount your sentence in respect of each offence by 25%, which is the maximum allowed under s 9AA of the Sentencing Act to reflect the benefits to the State and to the victim, Ms Cobb, who has been spared the trauma of giving evidence.

I am prepared to allow that discount despite the fact that the case against you was overwhelming, because of the eye witness accounts and your admissions, and I do so because I consider that the benefit, particularly to Ms Cobb and the children, of knowing the certainty of your conviction, and, in Ms Cobb's case, not having to give evidence, are significant matters.

I also consider that you have shown genuine remorse. Even as early as the police interview, you wanted to apologise to Ms Cobb and your children for your behaviour, so I take that into account as well [111] - [119].

18 The appellant relies on three grounds of appeal.

19 Ground 1 alleges that the sentencing judge erred in fact and law by finding that the appellant was not experiencing an acute relapse of his psychiatric illness at the time of the offending. The particulars of ground 1 assert:

1. The Appellant relied on psychiatric evidence to establish the above matter.
2. The Respondent conceded the matter.
3. The learned sentencing Judge rejected the psychiatric evidence without adequate foundation.
4. The learned sentencing Judge erred in law by failing to invite the Appellant to adduce further evidence on the matter.

20 Ground 2 alleges that additional evidence not before his Honour demonstrates that the appellant's sentencing involved a miscarriage of justice.

21 Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.

22 On 1 July 2016, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.

23 As I have mentioned, on 20 September 2016, this court granted leave to appeal on ground 2 and refused leave on ground 3.

24 On 3 March 2016, the sentencing judge conducted the sentencing hearing. During the hearing his Honour said:

(a) he had not had an opportunity to absorb the contents of the sentencing materials (ts 12);

(b) he would need to review the sentencing materials in some detail and, therefore, he did not intend to sentence the appellant immediately (ts 30);

(c) it was important that he not be under pressure in arriving at a conclusion about how he should sentence the appellant (ts 30); and

(d) accordingly, he intended to adjourn the sentencing (ts 30, 34).

25 At the sentencing hearing, defence counsel referred to Dr Pascu's reports.

26 In her report dated 9 November 2015, Dr Pascu's clinical diagnosis was that the appellant, whom she had interviewed on 2 November 2015, had a psychotic illness, most likely a relapse of paranoid schizophrenia, and his illness was secondary to cannabis use and erratic compliance with treatment and psychological stressors. Dr Pascu expressed her opinion as follows:

[The appellant] has a psychotic illness, paranoid schizophrenia, chronic with an acute relapse of his illness most likely in context of the stress of his marriage break up, complicated by increased alcohol and cannabis use and in my opinion, insufficient medication in the community. I believe that his mental illness was undertreated in the community more so given the increased stress of his relationship deteriorating.

In relation to his offences I believe that due to his illness not being adequately treated, with his increasing use of cannabis to cope with his emotional problems, his judgment was most likely impaired at the time of committing the offences, due to his mental illness (7).

27 In her report dated 21 January 2016, Dr Pascu noted that on 5 January 2016 she had interviewed the appellant again. She was of the opinion that his condition had improved and he was now fit to deal with sentencing proceedings. However, she reiterated, in substance, her earlier clinical diagnosis:

[The appellant] has a psychotic illness, paranoid schizophrenia, chronic with an acute relapse of his illness at the time of the offences, most likely in context of the stress of his marriage break up, complicated by increased alcohol and cannabis use and in my opinion, insufficient or no medication in the community. I believe that his mental illness was undertreated in the community more so given the increased stress of his relationship deteriorating.

In relation to his offences I believe that due to his illness not being adequately treated, with his increasing use of cannabis to cope with his emotional problems, his judgment was most likely impaired at the time of committing the offences, due to his mental illness (7).

28 At the sentencing hearing, defence counsel referred to the appellant's medical records. The records revealed:

(a) Between July 2014 and May 2015, the appellant was receiving depot injections as an outpatient at the Alma Street Clinic.

(b) On 9 June 2015, the appellant attended at the Alma Street Clinic. He reported increased paranoia and said he was feeling depressed. The appellant expressed concern about seeing his children while he was mentally unstable, as it might cause him to behave irrationally. The appellant was examined, but the examination did not show any formal thought disorder or reaction to internal stimuli. He was assessed as having good judgment, insight and cognition. The author of the record noted that the appellant appeared to be suffering from mild paranoia in the early stages of a paranoid schizophrenia relapse.

(c) On 23 June 2015, Ms Cobb attended at the Alma Street Clinic and expressed concern about the appellant.

(d) On 29 June 2015, the appellant attended at the Alma Street Clinic and requested his medication. He said he had been very unwell for the last two weeks and had been experiencing auditory command hallucinations. The author of the record noted concern about the appellant's personal circumstances, but did not note whether the appellant was suffering from any particular symptoms.

(e) On 1 July 2015, the appellant attended at the Alma Street Clinic and requested accommodation support and more medication. He was recorded as having no psychotic symptoms and having been compliant with his medication.

29 At the sentencing hearing, defence counsel submitted that, based on Dr Pascu's reports and the appellant's medical records, at the time of the offending the appellant was experiencing a relapse of his psychiatric illness (ts 25). Defence counsel also submitted that the appellant's cannabis use was not directly connected to the offending, but was a factor in his psychiatric illness (ts 29).

30 At the sentencing hearing, the following exchange occurred between his Honour and the prosecutor in relation to Dr Pascu's report dated 21 January 2016:

GRINCERI, MR: So if your Honour finds that there is a causal connection between [the appellant's] mental health - and there is no doubt that he was labouring under mental health conditions at the time - the State says that based on Dr Pascu's report, at paragraphs 35 and 36, that your Honour could be satisfied that the offender himself contributed to his underlying mental health condition by abusing cannabis an alcohol. And, therefore, he shouldn't be given the full mitigation ...

FIANNACA J: Sorry. Are you referring to that as something that had happened over a period of time, not necessarily immediately before the offence?

GRINCERI, MR: Yes, over a period of time, your Honour. Yes.

FIANNACA J: Yes. All right (ts 33 - 34).

31 As I have mentioned, the State conceded at the sentencing hearing that Dr Pascu's reports confirmed that the appellant had suffered an acute relapse of his mental illness at the time of the offending and that there was a causal connection between the relapse and the commission of the offences.

32 After the prosecutor and defence counsel completed their submissions at the sentencing hearing, the sentencing judge adjourned the appellant's sentencing to 18 March 2016. His Honour said there were 'a number of complex matters' that he needed to consider and think about before deciding on the sentencing outcome (ts 35).

33 On 18 March 2016, his Honour made his sentencing remarks and imposed sentence.

34 I have set out at [16] above the sentencing judge's findings in relation to Dr Pascu's expert opinion and his rejection of the State's concession.

35 It is apparent that, in determining the appellant's mental state at the time of the offending, his Honour relied to a significant extent on his personal assessment of the appellant's appearance, and the manner in which the appellant conducted himself, in the electronically recorded interview with the police in the early morning of 12 July 2015 (shortly after midnight on 11 July 2015). The offences were committed on 10 July 2015.

36 The sentencing judge did not raise with the prosecutor or defence counsel, either at the sentencing hearing on 3 March 2016 or before he made his sentencing remarks and imposed sentence on 18 March 2016, that he was contemplating:

(a) finding that the State's concession overlooked, amongst other things, the fact that Dr Pascu had not viewed the appellant's electronically recorded interview with the police; and

(b) consequently, rejecting the State's concession that Dr Pascu's reports confirmed that, at the time of the offences, the appellant had suffered an acute relapse of his mental illness and that there was a causal connection between the acute relapse, on the one hand, and the commission of the offences, on the other.

37 A sentencing judge must conduct sentencing proceedings in accordance with the rules of procedural fairness. See Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 472 - 473 (Mason CJ & Brennan J), 482 - 483 (Deane, Toohey & Gaudron JJ); Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 293 - 296 (Kirby P, Handley & Sheller JJA agreeing); Baroudi v The Queen [2007] NSWCCA 48 [29] - [33] (Price J, Sully & Howie JJ agreeing); Button v The Queen [2010] NSWCCA 264 [14] - [18] (Latham J, Simpson & Kirby JJ agreeing).

38 Section 15 of the Sentencing Act 1995 (WA) provides:

To decide on the proper sentence to imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

39 The discretionary power conferred by s 15 must be exercised:

(a) in a manner that is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and

(b) in accordance with the rules of procedural fairness.

See Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [65] (Buss JA, Roberts-Smith JA agreeing).

40 The rules of procedural fairness are concerned with processes rather than outcomes. They are therefore rules which govern what a court must do in the course of deciding how a power should be exercised. That is, the rules of procedural fairness apply to the processes by which a decision pursuant to the exercise of power will be made. See Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [16] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

41 Fairness is essentially a practical concept. It is not abstract in nature. The rules of procedural fairness are concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).

42 In Pantorno, the appellant pleaded guilty to a charge of possession of a drug of dependence. Defence counsel told the sentencing judge that the quantity of the drug was very small and was for the appellant's own use. He referred to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as prescribing the relevant penalty 'where it is not a trafficable amount, and the Crown doesn't suggest for one moment that this is a trafficable amount'. The prosecutor did not challenge that assertion and made no submissions about sentence. The sentencing judge sentenced the appellant under s 73(1)(c) of the Act, which prescribed a higher penalty than s 73(1)(b), on the basis that there was no evidence before him that the appellant's possession of the drug was not for a purpose relating to trafficking. The High Court held that, since the proceedings before the sentencing judge had been conducted by the prosecutor and defence counsel on the footing that s 73(1)(b) applied, it had not been open to the judge to sentence under s 73(1)(c) without giving defence counsel an opportunity to show why the appellant was not liable to the higher penalty prescribed by s 73(1)(c).

When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary [[1976] 1 WLR 1255, at pp 1265 - 1266; [1976] 2 All ER 865, at p 874]. Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer (473).

In all the circumstances, it was incumbent upon the sentencing judge to indicate to counsel his lack of acceptance of the underlying assumption upon which the submissions upon sentence had been made. This was particularly the case when counsel had asserted, without dissent from the Crown or comment by the sentencing judge, that the small quantity of heroin found in his client's possession had, in any event, been for the applicant's personal use. In the result, the conclusion is unavoidable that the applicant was effectively denied any adequate opportunity at first instance to call the evidence which it was necessary to call ... The denial of that opportunity to call evidence constituted a denial of procedural fairness which vitiated the sentencing judge's finding that, by reason of absence of evidence, he was not satisfied of the absence of any purpose relating to trafficking (482 - 483).

45 In Parker, the Court of Appeal of New South Wales held that a failure by a trial judge to disclose that he was contemplating imposing a custodial sentence, in lieu of the non-custodial sentence appealed from, constituted, in the circumstances, a denial of procedural fairness. Kirby P commented:

Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view (296).

46 A sentencing judge is not, of course, bound to accept and act on the prosecutor's and defence counsel's agreement as to the factual basis on which an offender is to be sentenced. See Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 606 (Kirby P); R v Uzabeaga [2000] NSWCCA 318; (2000) 119 A Crim R 452 [34] (Bell J, Simpson & Dowd JJ agreeing). However, it does not follow from that proposition that a sentencing judge may make findings of fact inconsistent with the statement of agreed facts without warning the parties of his or her intention to do so. In Chow, Kirby P noted that 'circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will themselves amount to a departure from the rules of procedural fairness' (606). See also Uzabeaga [35].

47 In Baroudi, it was held that a sentencing judge had failed to accord procedural fairness to an offender in circumstances where the prosecutor in effect nominated an appropriate sentence. In particular, the prosecutor conceded that the effective non-parole period should be 'another 12 months and no more' [26]. The judge then asked defence counsel whether he wished to say anything in opposition to that course. Defence counsel made his submissions on sentence in accordance with the prosecutor's concession. The judge imposed a more severe sentence (in particular, a more severe non-parole period) than that nominated by the prosecutor. Price J commented:

[I]t was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness [33].

See also Button v The Queen [2010] NSWCCA 264; Weir v The Queen [2011] NSWCCA 123.

48 In the present case, I am satisfied that the sentencing judge's failure to raise with defence counsel, before he made his sentencing remarks and imposed sentence on 18 March 2016:

(a) that his Honour was proposing to reject the State's concession in relation to Dr Pascu's reports; and

(b) the basis on which he proposed to reject the State's concession,

49 His Honour's failure caused the appellant practical injustice. First, it deprived defence counsel of the opportunity to apply for an adjournment for the purpose of clarifying with Dr Pascu whether she had viewed the electronically recorded interview. It would have been appropriate, in the circumstances, to have granted an adjournment in the context of the agreed position between the prosecutor and defence counsel in relation to the substance and effect of her reports; the significance of the appellant's mental state at the material time from a sentencing perspective; and his Honour's decision to adjourn the sentencing from 3 March 2016 to 18 March 2016 because there were 'a number of complex matters' that he needed to consider and think about. Secondly, the adjournment would have enabled Dr Pascu (who, as I have mentioned, was appointed by the court to assess the appellant's mental state) to view the electronically recorded interview (if she had not done so) and give evidence, either orally or in a further report, as to whether the appellant's demeanour and interaction with the police officers during the interview affected the opinions she had already expressed. Thirdly, the diagnosis of a mental illness requires expert evidence from a psychiatrist and is not to be made by the application of a non-expert's common-sense, rationality and experience. See Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659, 663 (Dixon CJ, McTiernan, Fullagar, Menzies & Windeyer JJ).

50 That part of ground 1 which asserts, in effect, that his Honour denied the appellant procedural fairness in the course of deciding that:

(a) Dr Pascu's clinical diagnosis should not be accepted; and

(b) he was not satisfied, on the balance of probabilities, that at the time of the offending the appellant was suffering from an acute relapse of his mental illness,

51 It is unnecessary to consider the balance of ground 1.

52 The additional evidence sought to be adduced by the appellant in the appeal comprises Dr Pascu's affidavit sworn 27 May 2016 and her report dated 26 May 2016 which is annexed to the affidavit.

53 Section 40(1)(e) of the Criminal Appeals Act 2004 (WA) confers on this court power to admit additional evidence in an appeal. The power should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA); The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P, Buss JA & Mazza J agreeing); AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] - [124] (Martin CJ, Mazza JA & Hall J).

(a) After preparing her reports dated 9 November 2015 and 21 January 2016, she viewed the appellant's electronically recorded interview with the police held on 10 July 2015 [1], [5].

(b) The interview was 'of [an] investigational nature carried out by police officers for an entirely different purpose than a psychiatric examination' and 'the quality of the recording did not allow a good observation of [the appellant's] affect and aspects of his mental state that would be required for an appropriate psychiatric assessment' [21], [30].

(c) However, during the interview the appellant appeared 'at times almost disconnected from the content of the conversation' and that was 'in keeping with an underlying psychotic illness and distractibility secondary to it' [22], [31].

(d) The appellant has a psychotic illness, paranoid schizophrenia, chronic with an acute relapse of his illness at the time of the offending, most likely in the context of the stress of his marriage break up, complicated by his illness not being adequately treated in the community [26].

(e) The appellant's increased use of alcohol and cannabis was not the primary cause of his altered mental state, but may have contributed to increased agitation [27].

(f) The appellant's judgment was most likely impaired at the time of the offending due to his illness, inadequate treatment of that illness and, possibly, the use of alcohol to cope with his emotional problems [28], [39].

(g) At the beginning of the interview, when the police officers inquired about the appellant's health, he said he had a mental illness and he did not feel well [32].

(h) It is inadequate to ignore a documented history of a person's psychiatric illness because the person's thoughts, perceptions and behaviours must be considered in the context of their history [34].

(i) Viewing the interview did not alter her opinion that the appellant was more likely than not to have experienced a relapse of his illness [35].

(j) It is clearly documented in the appellant's prison and hospital notes that his mental state has deteriorated, despite treatment, and despite the appellant having no access to alcohol and illicit drugs in prison. That is not consistent with the appellant having a psychotic illness secondary to alcohol and illicit drugs [37].

(k) The appellant will require ongoing long term follow up and treatment for his mental illness [41], [43], [44].

(l) The level of mental health and psychological services available in prison is limited and the appellant is unlikely to receive the required level of individual care [45].

(m) The appellant may become vulnerable to ill-treatment from other inmates because of his major mental illness and secondary behavioural disturbances [46].

55 The opinions expressed by Dr Pascu in her reports dated 9 November 2015, 21 January 2016 and 26 May 2016 should be accepted for the following reasons. First, the material facts and circumstances on which Dr Pascu's opinions are based were not challenged by the State either before the sentencing judge or this court. There is no reasonable basis for declining to accept those facts and circumstances. Secondly, the diagnosis of a mental illness requires expert evidence from a psychiatrist. Dr Pascu is a highly qualified and experienced consultant forensic psychiatrist. Thirdly, Dr Pascu's opinions were not contradicted by other psychiatric evidence either before his Honour or this court. Fourthly, Dr Pascu's opinions were supported by the appellant's medical records referred to by defence counsel at the sentencing hearing.

56 The only conclusion reasonably open, having regard to Dr Pascu's reports, is that the appellant had suffered an acute relapse of mental illness at the time of the offending and that there was a causal connection between the relapse and the commission of the offences.

57 At the material time, the appellant's mental illness was not being treated adequately in the community. He had been attending regularly at the Alma Street Clinic. On 9 June 2015, the appellant reported increased paranoia and said he was feeling depressed. He expressed concern about seeing his children while he was mentally unstable, as it might cause him to behave irrationally.

58 It is 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.

59 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 numerous 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; Wheeler v The Queen [No 2] [2010] WASCA 105; Smith v The State of Western Australia [2010] WASCA 176; The State of Western Australia v Khasay [2014] WASCA 58; IEB v The State of Western Australia [2015] WASCA 207.

60 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] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). 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]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).

61 In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:

The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].

See also R v Wright (1997) 93 A Crim R 48, 50 - 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

62 In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, 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 [12]. 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].

63 Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) 14, adopted and emphasised by Gleeson CJ in Engert (71).

64 In the present case, had the additional evidence been before his Honour at the sentencing hearing, different (and materially lower) sentences should have been imposed.

65 I am satisfied, after examining Dr Pascu's reports and the appellant's medical records, that the sentencing judge's rejection of the State's concession, and his Honour's failure to be satisfied, on the balance of probabilities, that at the time of the offending the appellant was suffering from an acute relapse of his mental illness, occasioned a miscarriage of justice.

66 The appellant's application for leave to adduce the additional evidence in the appeal should be granted.

69 The appellant's appeal against sentence should be allowed because:

(a) the appellant was denied procedural fairness by the sentencing judge;

(b) different (and materially lower) sentences should have been imposed on the appellant; and

(c) a miscarriage of justice occurred when the appellant was sentenced by his Honour.

70 This court has the material necessary to resentence the appellant.

71 The maximum penalty for count 1 is 15 years' imprisonment, the maximum penalty for count 2 is 20 years' imprisonment and the maximum penalty for count 3 is 10 years' imprisonment.

72 Pursuant to s 9AA of the Sentencing Act, I would reduce the head sentence that I would otherwise have imposed for each of counts 1 and 2 by 25%, on account of the appellant's pleas of guilty at the first reasonable opportunity. This recognises the benefits to the State, and to the victim of and witnesses to each offence, resulting from the plea.

73 I have also reduced the sentences I would otherwise have imposed because of a number of other mitigating factors; in particular, the appellant's mental illness and the causal connection between that illness and the commission of the offences; the appellant's consequential diminished moral culpability for the offences and the consequential diminished importance of general deterrence; the appellant's efforts to obtain treatment for his illness in the community; imprisonment has been and is likely to be more difficult for the appellant than for someone who does not have a serious psychiatric condition; and the appellant's demonstration of genuine remorse.

74 After taking into account the maximum penalty for each offence, the facts and circumstances of each offence, the general standards of sentencing for the kind of offence in question, the place which each offence occupies on the scale of seriousness of the kind of offence in question, the appellant's personal circumstances and all other relevant sentencing principles, including mitigating factors, I would impose individual sentences as follows:

75 I am satisfied that it is not appropriate to suspend or conditionally suspend the terms of imprisonment for counts 1 and 2. After considering again all of the relevant facts and circumstances of the offending, all of the appellant's personal circumstances and all other relevant sentencing

principles and factors, I am of the opinion that the objective seriousness of the appellant's offending and the protection of the community require that he serve the terms of imprisonment immediately.

76 The new sentences for counts 1 and 2 are to be served concurrently with each other. The new total effective sentence is therefore 2 years' immediate imprisonment. The new sentences are to be taken to have taken effect on 10 July 2015. The appellant remains eligible for parole.