Wilmot v Regina

The application 20 Ms Davenport SC, for the applicant, argued that the sentencing judge erred in his approach to the evidence of the applicant's mental illness, and in his assessment of the starting point of sentence for the offence of malicious wounding with intent. 21 It is convenient to begin with the second of those arguments, which was put in Ms Davenport's written submissions but not developed in oral argument. As I have said, the malicious wounding with intent offence carried a maximum sentence of twenty-five years and a standard non-parole period of seven years. His Honour expressed the view that that offence was "a case well above the standard non-parole period and well above mid-range in objective seriousness…". He then referred to the maximum sentence of twenty-five years and concluded that the offence called for a starting point of twelve-and-a-half years "before discounts for this particular offence". 22 As I understand Ms Davenport's written submissions, her complaint is founded upon the assumption that twelve-and-a-half years was his Honour's starting point for the non-parole period, and that his reference to where the offence stood in a range of objective seriousness was for the purpose of determining what that period should be in the light of the prescribed standard non-parole period. However, as the Crown prosecutor in this Court pointed out, a careful reading of this passage of his Honour's remarks discloses that he was addressing the appropriate "head" sentence, not the non-parole period. This appears clearly enough from his Honour's reference to the maximum sentence of twenty-five years imprisonment. 23 Let me turn, then, to his Honour's approach to the applicant's mental illness, which was the primary focus of the application. As I have said, his Honour accepted that the applicant suffered from mental illness and took that into account as a subjective factor. However, he did not find that that illness played a role in the applicant's commission of the offences, notwithstanding Dr Westmore's opinion that it probably did. He rejected a submission that the applicant should be found not to be fully aware of the consequences of his actions because of his mental state, saying that the manner in which the attack upon Mr Mostafa "was conducted, planned and carried out speaks against that finding". He later referred to the "calculated manner" in which the applicant "approached his task of stalking Mr Mostafa and then attacking him…". 24 As to the applicant's use of an offensive weapon to avoid lawful apprehension, his Honour said: … the effect of that mental condition is not readily apparent in much of the activity that occurred on this day, although the reason for his offending is a different matter entirely. But the actual actions he took do not match up with the mental problem that he has been diagnosed with. 25 What his Honour meant by the observation that "the reason for his offending is a different matter" is not entirely clear. However, it is apparent from his remarks that he did not accept that the applicant's mental illness had any bearing upon the commission of either offence. Ms Davenport argued that this was in error and could not be supported, given the view expressed by Dr Westmore in his second report. Accordingly, she said, his Honour had failed to take into account a significant matter when assessing the objective gravity of both offences. 26 It is unnecessary to revisit the familiar line of authority dealing with the bearing of mental illness upon sentence: see, for example, R v Engert (1995) 84 A Crim R 67. Undoubtedly, a finding that the applicant's mental illness contributed to his criminal behaviour would have been relevant to an assessment of the objective gravity of his offences. However, that is a matter in mitigation as to which the applicant bore the burden of proof, and there needed to be evidence sufficient to establish it. 27 Certainly, there is a bizarre quality to both offences. This can be seen in the somewhat elaborate planning of the malicious wounding of Mr Mostafa and the ferocity of the attack upon him, as well as in the applicant's expression to police of a preference to be shot rather than be imprisoned. As to the planning of the first offence, it may be that that is not inconsistent with its being the product of mental illness. Moreover, one might question the effectiveness of the applicant's disguise when committing that offence in the presence of members of his family. As I have said, it did not prevent his daughter recognising him. 28 Nevertheless, a finding that the applicant's mental illness contributed to the offences would need to have been supported by expert evidence disclosing the basis upon which that finding was available. In his second report Dr Westmore did not elaborate at all upon his assertion of a link between the illness and the applicant's behaviour. His ability to proffer a basis for that opinion must have been hampered by the fact that the applicant declined to provide him with an account of the offences. Nor did the applicant give evidence in the sentence proceedings, and Ms Davenport was unable to take us to any part of his recorded police interview which might have provided a foundation for the doctor's opinion. 29 Ms Davenport referred to a passage in the Justice Health material from which it appears that the applicant told a health professional that he believed that Mr Mostafa was planning to sexually abuse his daughter. This appears in notes made on 12 July 2004, five days after his arrest. Nothing of the kind was suggested elsewhere in the evidence. In particular, he said nothing about it in his recorded police interview and there was no reference to it in Dr Westmore's reports or in his father's evidence. Nor is it referred to in his Honour's remarks and, indeed, it does not appear to have been raised at the sentence proceedings. 30 It is difficult to place any weight on this assertion, or to afford any significance to it. There appears to have been no material before his Honour by which it might be decided whether there was some factual basis for it, whether it was a fabrication or whether it was a delusional belief. Certainly, there was no evidence, expert or otherwise, to establish that it was engendered by mental illness. 31 Ms Davenport emphasised the fact that almost immediately after the applicant's arrest he was found to be suffering from a psychiatric condition, previously undiagnosed and apparently of long standing. She argued that this alone warranted a conclusion that his condition influenced the commission of the offences. 32 I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant's mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It was open to his Honour to find that the connection had not been established. 33 Accordingly, I consider that neither of the challenges to the sentencing process has been made out. The sentences are severe but the criminality of both offences, particularly the wounding of Mr Mostafa, was of a high order. That offence was aggravated by the fact that the applicant was subject to an apprehended violence order in respect of the same victim: R v Edigarov (2001) 125 A Crim R 551, per Wood CJ at CL at [50(c)]. Given his Honour's approach in determining the sentence for that offence, summarised above, it is not entirely clear that the applicant received the specified discount of twenty-five percent for his plea of guilty. However, no point was taken about this in the application. Nor was it argued that the sentences are, in any event, manifestly excessive. 34 I would grant leave to appeal but dismiss the appeal. 35 HOWIE J: I agree with Hidden J.