Wright v The Queen [2015] VSCA 333

1 The appellant ('JW')[1] suffers from schizophrenia. He was first diagnosed at the age of 20, after experiencing his first psychotic episode. For almost 20 years, he was compliant with his antipsychotic medications and lived a law-abiding life. He completed a landscaping apprenticeship and was employed in that field.

2 In 2012, however, JW began taking methamphetamine and ceased taking his prescribed medication. Over the period 2012-14, he committed criminal offences of increasing seriousness, culminating in very serious offences of aggravated burglary and rape. Expert psychiatric evidence before the sentencing court established that the methamphetamine had caused JW to experience sexually obsessive thoughts and had led to a recurrence of auditory hallucinations.

3 The submission for JW on the plea (as on the appeal) was that the presence of psychotic symptoms at the time of the offending warranted a reduction in his moral culpability. The judge concluded, however, that the cause of the offending was not the underlying mental illness - which had been well controlled by medication - but his taking of methamphetamine instead of his prescribed medication, which he had continued to do even after he had come to appreciate the effects which methamphetamine had on him.

4 The appellant's case is that the sentencing judge did not take into account a relevant consideration and, as a result, erred in the exercise of his discretion.[2] For reasons which follow, we have concluded that there was no such error. On the contrary, we respectfully agree with his Honour's reasoning with respect to the question of moral culpability.

5 The evidence establishing the causative effect of the methamphetamine in the absence of the appellant's medication was overwhelming. Moreover, the fact that offences are committed under the influence of drugs does not mitigate the seriousness of the offending, or reduce the offender's moral culpability, unless the evidence establishes that the decision to begin taking the drug was not a free, rational decision.[3] There was no such evidence in the present case.

6 There was a related question about the risk of reoffending. As this case illustrates, a condition which attracts one or more of the principles restated in R v Verdins[4] may also suggest a heightened risk of reoffending and hence direct attention to the need to protect the community. In other words, the same impairment of mental functioning will be productive of countervailing sentencing considerations, one tending to favour a shorter sentence, the other a longer sentence.[5]

7 As will appear, the sentencing judge in the present case was alive to these issues from the outset. And, as the Chief Crown Prosecutor acknowledged on the appeal, his Honour dealt with them in an exemplary fashion.

8 JW was born in 1972. His parents separated when he was seven. He was thereafter raised by his mother, who is a general practitioner. He completed Year 11. He was an average student and generally well behaved. He was friendly and well liked by his peers.

9 He experienced his first psychotic episode aged 20, in the context of using cannabis and LSD. He was admitted to hospital after stabbing himself and injuring his dog. As already mentioned, he was under psychiatric care, and treated with antipsychotic medication, until 2012.

10 According to his mother, who gave evidence on the plea, he was mostly compliant with medication over that 20 year period. She said:

I think that he would occasionally miss a tablet but on the whole over that period of time he was compliant.

he had learned over the years that to ensure ... that he stayed well he should take his medication.

11 In March 2012, JW was brought by his sister to see his then treating psychiatrist, Dr Roman. According to Dr Roman's report, JW told him that he had been doing well, working as a builder's labourer, but had ceased his medication for a week and had become paranoid. As a result, JW told Dr Roman, he had formed the belief that a neighbour had reported him to Centrelink and had also broken into his flat to steal cigarettes. JW retaliated by breaking into the neighbour's flat. He subsequently increased the dose of his antipsychotic medication.

12 In November 2012, a forensic psychiatrist, Dr Cidoni, expressed the view that at the time of the March offending JW was suffering from a relapse of schizophrenia. Dr Cidoni noted, however, that the relapse had not been sufficient to warrant hospitalisation and that the illness had subsequently stabilised.

13 In July and August 2013, JW committed a series of thefts. He was arrested but was granted bail and then engaged in further dishonesty offending in December 2013. He was again granted bail, on condition that he attend the Raymond Hader Clinic in Geelong (the 'Clinic') to undergo drug rehabilitation.

14 JW was seen in February 2014 by another psychiatrist, Dr Walton, who reported in relation to the 2013 offending that JW

on the one hand, provides the relatively mundane motivation that he required the means to purchase methamphetamine. On the other hand, it seems that he was assailed by visual hallucinations of naked women and he described developing an 'obsession' with sexual matters, especially during the second period of the offending. He was also prone to non-specific auditory hallucinations and rather paranoid feelings that other people were intending to harm him.

Over the years Mr Wright's psychiatric treatment has been dispensed by private psychiatrists and his attendance in the last two years has been haphazard at best, and seemingly not at all since early 2013 which also corresponded to his not taking his routinely prescribed antipsychotic medication.

Since he was received back into custody, Mr Wright was prescribed Seroquel, a sedative/major tranquilizer, seemingly towards promoting sleep and that was only in low dose and has now ceased but he continues to take alternative antipsychotic medication. This has been effective.

In context of Mr Wright having desisted with his maintenance antipsychotic medication and his indulging in methamphetamine, it does appear that he had lapsed into psychotic disturbance during the periods of alleged offending. Apart from what he describes as a sexual obsession, there appear to be no relevant deluded beliefs specifically in relation to the offending and, in particular, Mr Wright does not seem to have been driven by so-called command hallucinations, directing him specifically towards the offending. It is his own self-assessment, with which I am inclined to concur, that he was not deprived of the capacity to meaningfully distinguish right from wrong during the period of the offending. Principally he was desirous of acquiring the means to purchase further methamphetamine and the women's underclothing was acquired in relation to his fetishistic urges, albeit the latter seemingly being the product of his psychosis.

...

What can be stated of a positive nature is that at present Mr Wright's psychiatric symptoms are well controlled, treatment with which he complies voluntarily. That does seem to have enhanced his insight into the nature of his mental illness and the requirement for the ongoing drug rehabilitation. However, this falls short of a guarantee that he could reliably apply himself to further drug rehabilitation if released to the community again.

...

Fortunately Mr Wright does seem to be suffering from a medication-responsive mental illness and the likelihood of his remaining well will be significantly enhanced if he avoids further drug abuse. Thus the prognosis is far from unremittingly gloomy both in terms of maintaining his mental health and also reducing the risk of recidivism as his offending does seem to be fairly closely related to the drug abuse and his mental illness.[6]

16 On 19 August 2013, JW entered the bedroom of a sleeping 16-year-old girl and indecently assaulted her, having broken into her family home with an intent to steal. He was not interviewed by police in relation to the indecent assault until 27 March 2014. He told police that he had been living at his mother's address in August 2013, which was near where the offending took place, but said that he did not have any recollection of the circumstances of the offending. He was not charged with those offences until his ultimate arrest.

17 On 3 April 2014, JW absconded from the Clinic. Between 19 and 20 April, he stole about 15 pairs of women's underwear and five bras, which were attached to a portable clothes hanger in a courtyard behind a unit. Two days later, he entered a unit in the block in which he was living and rifled through the clothing drawers of two bedrooms. He again stole underwear. The following weekend, JW re-entered that same unit and again searched through the clothing drawers. He then stole a number of items, including underwear and a credit card.

18 Soon after, he entered another unit, near to where he was staying, in the early hours of the morning. He entered with the intention of committing sexual assault. He was equipped with a torch, some personal lubricant and condoms. The victim was lying asleep when she was woken. She felt a pointy object against her throat which, it was accepted on the plea, was a pair of scissors. JW then committed anal rape, digitally penetrating the victim after lubricating his fingers, and penile/vaginal rape. JW was arrested the following morning.

19 In October 2014, JW was interviewed by Dr Deacon, consultant psychiatrist, at the request of his solicitors. Dr Deacon's report was the centrepiece of the defence submissions on the plea.

20 After describing JW's early psychiatric and drug history, Dr Deacon said:

He was mostly compliant with prescribed medication until 2013 when he commenced using methamphetamine and heroin in varying combinations. He also took Quetiapine (Seroquel) in the past to assist with sleep.

Mr Wright confirmed he had continued to experience auditory hallucinations whilst using methamphetamine, although he was mostly able to either block them out or distract himself. He noted the voices, usually a female, told him to take drugs. He had also been afflicted by paranoia, mostly centered on beliefs that he was being listened to by 'bugs'. The level of psychotic symptoms reduced when he reduced or refrained from using methamphetamine.

Mr Wright commenced using cannabis in his mid-teens. He stopped for a period but resumed at age 25. He had persistently used cannabis until his arrest. He used various hallucinogens in his late teens. He used heroin for a period in his late thirties, resuming again dependently two years ago, coinciding with the commencement of prolific methamphetamine use. He consistently used up to [a] point of methamphetamine per day. He associated euphoria with methamphetamine use, but also aggressive tendencies during periods of withdrawal.

Mr Wright noted he experienced heightened libido and associated obsessive sexualized thinking whilst using methamphetamine. He specifically developed 'visions to do sexual stuff', including sexually driven crime, whilst using methamphetamine. He denied a history suggestive of sexuality confusion or sexual perversion when not under the influence of methamphetamine.

Mr Wright was rather awkward and vague in responding to questions regarding his altered mental state whilst using methamphetamine, consistent with feelings of shame and guilt. He confirmed he developed a fetish for [women's] lingerie. This lead to stealing [women's] clothes and lingerie from clotheslines, and on occasions he elected to wear the clothing underneath his own clothing. He also developed fantasies to commit a sexual crime. He developed ideas of breaking into a house and non-coercively engaging in sexual activity.

Mr Wright said auditory hallucinations 'planted the seed' to initiate the sexual crimes, as the voices told him 'get in quick'.[7]

21 The concluding part of the report was headed 'Opinion and recommendations'. The relevant parts were as follows:

He appears to have been reasonably mentally well from age 20 to 39/40.

Mr Wright has been significantly methamphetamine dependent for the last two years. He has also used heroin in a dependent pattern. Methamphetamine combined with the absence of antipsychotic medication has contributed to a significant decline in the stability of his mental health, and further contributed to committing the offence.

Mr Wright has a history of increase[d] sexual preoccupation whilst using methamphetamine. Methamphetamine appears to have generated the onset of an obsessive-fetish type sexual drive whereby he became motivated to access and often wear female underwear. Also, and more alarming, has been a history of intense sexual fantasies, experienced as imaginary sexual scripts, including the odd notion of finding a female stranger in a house during a burglary, leading to a fanciful consensual and non-coercive sexual interaction.

Mr Wright appears to have experienced a similar pattern of behaviour in 2013 leading to his arrest and incarceration. Dr Lester Walton obtained a remarkably similar history, although it did not include the detail of rape fantasies.

Mr Wright had used methamphetamine over a period of a month prior to the offence following a period of failed drug rehabilitation in Geelong. During this period he was not taking prescribed antipsychotic medication. He developed the onset of the sexually preoccupying thoughts and desires. He also experienced auditory hallucinations that appear to have interacted with the background intensifying sexual obsessiveness triggered by methamphetamine use.

Mr Wright indicated that he was afflicted with auditory hallucinations immediately prior to the serious sexual offence on 29th April 2014. The auditory hallucinations did not command him to commit the offence, but they were perhaps encouraging and persuasive, and in a complex manner, interacting with his rising sexual obsession.

Mr Wright was obviously mentally unwell during the period of offending, mostly due to the impact of methamphetamine, but combined with a lack of antipsychotic medication. His altered mental state was mostly attributable to methamphetamine, but he was also in the grips of a psychotic process. The elevated sexual preoccupation was the primary driver to the offending but the onset of auditory hallucinations further reinforced the compulsion to offend. He was not so impaired to not be able to understand the wrongfulness of his actions. His capacity to exercise reasonable judgment during the offending period was likely to have been significantly compromised. Notably he was immediately aware that he had committed a serious crime after raping the victim. His unstable mental condition should be considered to have reduced his moral culpability [for] the offending conduct to at least a mild extent.

Mr Wright's mental state has stabilized since being arrested and remanded in custody. He has resumed antipsychotic medication and he has remained abstinent from illicit drugs.

...

Mr Wright should be considered ... more vulnerable than a prisoner of normal mental health given he has a major mental illness. He has already felt quite vulnerable amongst mainstream prisoners and he could foreseeably be targeted during his sentence. He is likely to experience prison as more onerous given his mental illness. Prison may impact on his mental health, but currently he is managing satisfactorily. He indicated that he was significantly burdened by feelings of guilt for the crime.[8]

22 Defence counsel's written outline on the plea advanced submissions based on the principles set out in Verdins. In relation to moral culpability, counsel relied on Dr Deacon's opinion that

his unstable mental condition should be considered to have reduced his moral culpability [for] the offending conduct to at least a mild extent.

23 With respect, that was not a proper basis for such a submission. As the Court pointed out recently, the considerations discussed in Verdins are sentencing considerations. Whether one or more of those considerations is applicable is a question for the sentencing court alone.[9]

24 Sentencing courts depend upon the evidence of psychiatrists and psychologists in relation to the mental functioning of offenders at relevant times, but it is wholly outside their expertise to express views on whether one or other of the Verdins principles is applicable. Practitioners who commission such reports, and rely on them for plea submissions, should take care to ensure that they do not contain impermissible opinions of this kind.

25 Counsel also relied on the statement by Dr Deacon that JW's

altered mental state was mostly attributable to methamphetamine, but he was also in the grips of a psychotic process.

Acknowledging that the primary cause of the offending conduct was the methamphetamine use, counsel maintained that the underlying mental illness was still operative and should therefore be viewed as reducing JW's moral culpability. At this point, the judge indicated to counsel that the statements in the report could not be relied on unless Dr Deacon was called to give viva voce evidence.[10] The plea was adjourned to enable that to occur.

Mr Wright appears to have a history whereby when he is using methamphetamine, it triggers the onset of these sexual obsessions and fetishes. There doesn't appear to be a history predating the onset of his use of methamphetamine that correlates to that sort of conduct and those sorts of obsessions.

... [I]n my examination I was focusing particularly on the month [April 2014] that he had been out of [the Clinic] when the offences were committed.

... And it was during that period particularly that he was plagued by these obsessions.

27 Dr Deacon said that, on the basis of what JW had told him, it was

when and only when he used methamphetamine [that he had] the experience of ... the sexual preoccupations and what is described as an obsessive fetish for women's underwear and him wearing that underwear. Again, there was no preceding history of that sort of behaviour before the onset of his use of methamphetamine.

28 His Honour drew attention to the fact that, before committing the rapes, JW had equipped himself with condoms and lubricant, and asked Dr Deacon if this apparent pre-planning could be reconciled with his opinion that JW was psychotic at the time. Dr Deacon responded as follows:

I think it is important to understand when someone is psychotic it doesn't necessarily preclude them from being able to have some degree of organisation of their behaviour. There is many a person with schizophrenia who can be actively hallucinating but can still go about their daily life, and some of them work ...

29 More than once in his answers, Dr Deacon used the phrase 'complex interaction' to describe JW's state of mind at the time of the sexual offending:

So there was this sort of complex interaction between the effect of methamphetamine which was heightening his libido, that was inducing the onset of this sexual preoccupation and fetish that ... seemed to evoke the onset of these sexual scripts in his mind.

I've described them as more strongly related to the effect of methamphetamine rather than psychosis, but in fact, it could be some other complex interaction going on ... which is going to be almost impossible to tease out, but in the terms of a psychotic symptom, it was the hallucination that, combined with the sexual preoccupation, reinforced to him that he was going to commit a rape and he did.

So there is again a complex interaction between the effect of methamphetamine which has got a specific effect on his sexual preoccupation that also destabilised his illness. On top of that, he wasn't taking his medication, which in combination led to the destabilisation of his psychotic condition and putting that all together, really predisposed him to committing a crime.

30 Under cross-examination, Dr Deacon agreed that the methamphetamine was 'very much the root cause of this set of offending'. Noting the intensity of JW's methamphetamine addiction, Dr Deacon agreed that it was the methamphetamine use which had brought about a 'distinct deterioration' in his mental state after he left the Clinic in April.

31 In re-examination, Dr Deacon confirmed that JW's risks of reoffending in a similar manner would be 'significantly reduced, if he weaned himself off methamphetamine and was taking his antipsychotic medication'. Dr Deacon said:

He has actually had a long period for well over, I think 15 years, when he was mentally well - well, not using drugs - so there is proof that he has had that capacity. The thing that's really tragically unhinged things is his use of methamphetamine.

32 Resuming his submissions following Dr Deacon's evidence, defence counsel acknowledged the difficulty of 'trying to unravel the causative nature of influences' on JW. Counsel submitted as follows:

The answer to the question of what caused what specifically is too difficult. But what does interplay is that ... when using amphetamines does the psychotic illness undermine the capacity to make reasoned decisions about the likely effect of it or whether to continue with using drugs or whether the decreased judgment due to the underlying mental illness undermined the capacity to start using the drugs in the context of the addiction to those drugs comes first or is more important, it is difficult to say. They are inextricably intertwined.

33 The judge responded by pointing out that, although JW had a 'long-standing psychiatrically diagnosed schizophrenic condition', the offending had occurred 'almost exclusively when he commences to use ice and other substances and ceases to employ prescribed medication'. His Honour further pointed out that, when interviewed by police, JW made

substantial admissions and expressed a degree of insight into what ice does to him and how it changes his behaviour and how he gets benefits from ice that he does not get from prescribed medication.

What he has chosen to do ... is to discard prescribed medication in favour of ice because of the benefits he attaches to ice, as distinct from the deleterious effects of prescribed medication. There has been a conscious decision to use ice notwithstanding two periods of treatment in the Clinic.

35 The response of defence counsel, by reference to cases discussed below,[11] was that JW was 'not the classic rational adult actor simply seeking pleasure'. This was said to be so because his mental illness compromised his reasoning capacity and affected his executive function, combined with the fact that methylamphetamine use made him feel better.

36 After setting out the circumstances of the offending, the judge described it as 'objectively most serious', listing the key features in these terms:

• sustained offending;
• on two separate occasions you sexually assaulted females in their homes at night after breaking into their units;
• on 19 August 2013, you entered the bedroom of a sleeping 16 year old girl and indecently assaulted her after breaking into her unit with an intent to steal;
• on 29 April 2014, you anally and vaginally raped a 46 year old woman [K] who was sleeping alone in her house. You had previously seen [K] through a window and broke in with the intention of sexually assaulting her;
• your attack upon [K] involved a significant degree of premeditation as you entered the unit with lubricant and condoms and used both items to perpetrate the rapes;
• you held scissors against [K]s' throat in order to terrify and intimidate her; and
• despite being interviewed by police on 27 March 2014 in respect of the indecent assault committed in August 2013, and despite being subject to multiple sets of bail, you were undeterred and your rapes of [K] on 29 April 2014 represent an escalating of your offending.

In my view, your rapes of [K] are serious and disturbing examples of a serious offence.[12]

37 His Honour then turned to deal with the relevance of JW's mental illness. He said:

It is not in dispute that you have an established diagnosis of schizophrenia and that you have been significantly methamphetamine-dependent for the past two to three years. You have also used heroin. Methamphetamine, combined with the absence of antipsychotic medication, has contributed to a significant decline in the stability of your mental health. You have a history of increased sexual pre-occupation whilst using methamphetamine. Dr Deacon opined that:

Methamphetamine appears to have generated the onset of an obsessive fetish-type sexual drive whereby he became motivated to access and often wear female underwear. Also, and more alarming, has been a history of intense sexual fantasies, experienced as imaginary sexual scripts, including the odd notion of finding a female stranger in a house during a burglary, leading to a fanciful consensual and non-coercive sexual interaction.

...

Dr Deacon concluded that you were obviously mentally unwell at the time you offended, mostly due to the impact of methamphetamine, combined with your non-compliance with antipsychotic medication. Dr Deacon states:

His altered mental state was mostly attributable to methamphetamine, but he was also in the grips of a psychotic process. The elevated sexual pre-occupation was the primary driver to the offending but the onset of auditory hallucinations further reinforced the compulsion to offend. He was not so impaired to not be able to understand the wrongfulness of his actions. His capacity to exercise reasonable judgment during the offending period was likely to have been significantly compromised. Notably he was immediately aware that he'd committed a serious crime after raping the victim. His unstable mental condition should be considered to have reduced his moral culpability of the offending conduct to at least a mild extent.

It is not in dispute that you should be considered more vulnerable in gaol than a prisoner of normal mental health. Dr Deacon indicates that you have already felt quite vulnerable amongst mainstream prisoners and that you could foreseeably be targeted whilst serving a sentence. I accept that you are likely to experience prison as more onerous given your mental illness and that prison may impact on your mental health although, currently, this Court was told that you are managing satisfactorily.

The question of whether your unstable mental condition should be assessed as reducing your moral culpability has been extensively canvassed during the course of submissions. I am far from persuaded that this contention has been established. In my view, it is significant that your offending on 29 April 2014 displayed a considerable measure of premeditation and, further, that upon being interviewed by police, you acknowledged that your use of ice and failure to take your antipsychotic medication, was the trigger for your sexual fantasies.

You have shown over two decades that you can be law abiding when taking prescribed medication. Your offending is a product of abusing methamphetamine which you preferred to your prescribed treatment. You well knew that your use of methamphetamine was intimately connected to your aberrant sexual conduct and caused dis-inhibition. Nonetheless you persisted to abuse that drug despite residential treatment and awareness of its effect upon you. Your aberrant conduct was the subject of a record of interview with police on 27 March 2014. Yet within 23 days of that interview you broke into houses and stole women's underwear and 10 days later you raped [K].

I am not persuaded, on the balance of probabilities, that your underlying mental illness lessens your moral culpability. Further, even if this Court were to find that your moral culpability was lessened as a consequence of your mental illness, in my view, other countervailing sentencing considerations, including protection of the community, would prevail.[13]

38 The judge sentenced JW as set out in the table which appears at the conclusion of these reasons.

39 The sole ground of appeal was that the sentencing judge had erred in his approach to the application of the considerations listed in Verdins. The focus of the argument, as it had been on the plea, was on proposition 1 in Verdins, concerning moral culpability. Submissions were also directed at propositions 3 and 4, concerning deterrence, dealt with below.

40 Counsel for JW (who did not appear on the plea) submitted that the expert evidence before the judge demonstrated that, separately from the effect of the methamphetamine, JW's mental illness had contributed to the offending behaviour. Counsel relied on Dr Deacon's statement that JW was 'in the grips of a psychotic process' at the time, and on his references to the 'complex interaction' between JW's use of methamphetamine and his mental illness. The written case contended that:

[W]here the evidence indicates that an offender's mental illness has interacted with drug use in such a way that the mental illness can still be seen to have a realistic connection with the offending and is one of the causative factors, some reduction in moral culpability will still be open notwithstanding that drug use.

41 No such general proposition can be accepted. In addressing proposition 1 in Verdins, the question for the judge was whether JW's mental illness had contributed to the offending in such a way as to render him less blameworthy - less 'morally culpable' - than a person who did not suffer from that illness. As this Court has pointed out, a common (though not the only) approach to this question is to treat the issue as one of causation.[14]

42 In O'Donohue v The Queen, Nettle JA (with whom Coghlan JA agreed) said:[15]

The cases in Victoria which have applied proposition 1 of Verdins have, on the whole, taken the view that a causal connection needs to be established between the impairment of mental functioning and the offending for which sentence is to be imposed. As Maxwell P said in Carroll v The Queen:

Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes - on the balance of probabilities - that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?

But nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability was to show a causal connection. The case law shows that - for what, in our view, are quite understandable reasons - sentencing judges look for some kind of causal link in order to reduce the moral responsibility which is otherwise to be properly to be laid at the feet of the offender.

The court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(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.

As the court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list - item (f) - referred to causal connection. In short, counsel making submissions on the basis of Verdins has always been in a position to contend that it is not necessary to establish a causal connection.

In that case, the Court found that the applicant's depleted psychological condition and cognitive deficits reduced his moral culpability, despite the absence of a causal connection between his mental condition and his offending.

43 In the present case, there was no evidence that JW's mental illness was a cause of the offending. Nor was there evidence which established some other relevant nexus between his mental illness and his moral culpability for the offending. On the contrary, the evidence showed that the offending was the direct result of JW having deliberately ceased taking prescribed antipsychotic medication and begun taking methamphetamine.

44 It was taking methamphetamine which led to a recurrence of the psychotic symptoms, which had up to that point been well controlled.[16] JW persisted in taking the drug in full knowledge of its adverse effect on him. The evidence also showed that it was the methamphetamine alone which had prompted the development of the sexual obsessions which led to the sexual offending - first the stealing of female underwear, then an indecent assault, and then, most seriously, the rapes.

45 In other words, but for the switch to methamphetamine and the abandonment of the medication on which JW knew his mental health depended, he would almost certainly not have committed these offences. In those circumstances, in our view, the judge correctly concluded that there was no relevant link between the offending and the schizophrenia.[17]

46 JW was thus to be viewed as a person who had offended under the influence of drugs. In a series of decisions, this Court has explored the relevance of drug addiction as a mitigating factor in sentence. Whether the existence of an addiction as a causal factor in the offending warrants a reduction in moral culpability depends upon 'the extent to which a decision to experiment with drugs is freely made'.[18]

47 The sentencing court may for this purpose have regard to the circumstances which led to the development of an addiction. Youth, disadvantage and impairment of mental functioning are all capable of bearing on the sentencing court's determination of that issue.[19]

48 In Johnston v The Queen,[20] the appellant had an underlying depressive illness, which both preceded and was exacerbated by his use of drugs. The Court upheld the sentencing judge's refusal to accept that there was a causal link between his depressive disorder and his drug abuse. Redlich JA (with whom Priest JA and Robson AJA agreed) said:[21]

For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a 'realistic connection' between the mental condition and the commission of an offence. It must have 'caused or contributed' to the offending or have been 'causally linked' to it. The argument raised here - that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction, and an underlying mental disorder - must be rejected.

Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender's moral culpability. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person's mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs.

49 In the present case, there was no investigation with the expert witness of whether JW's mental illness - even when controlled by medication - should be viewed as having robbed him of the ability to make a rational choice to give up the medication and start taking methamphetamine. As noted earlier, defence counsel made that submission to the judge, and it was repeated on the appeal. But there was nothing in the expert evidence to support the proposition.

50 Had it been investigated, it would inevitably have been a question of some complexity. On the uncontested evidence, JW had been 'reasonably mentally well' during his long period of compliance with medication, had been able to communicate well with his mother and had been able to hold down employment. At the same time, there were aspects of his mother's evidence which raised questions about JW's insight into his illness:

I wouldn't describe Jesse's insight as good. As part of his disease he doesn't have good insight, and he doesn't have good insight [into] sometimes the consequences of his behaviour, which is always a concern. But he had learned over the years that to ensure that he stayed well he should take his medication.

51 His mother confirmed that, when JW admitted to her that he had used ice, she had talked to him about the dangers of the drug and about the need for him to have treatment. She also believed that she had pointed out to him that the drug had a 'special danger for him'. He was aware, she said, of how distressed his family were 'by his behaviour and the things that he did when he was using ice'.

52 It would also have been relevant that, after the first re-emergence of psychosis in March 2012, JW had - apparently on his own initiative - increased the dose of his antipsychotic medication. That suggested a clear awareness of the adverse effects of ceasing his medication. Finally, as the judge pointed out, the answers which JW gave in his record of interview suggested that he had made a deliberate choice to stop taking his prescribed medication and use methamphetamine instead, because 'it's a lot different. It's ... more enjoyable'.

53 In those circumstances, expert evidence would have been required if JW wished to establish a link between his mental illness and his decision to stop taking his prescribed medication and start taking methamphetamine. There having been no such evidence, the fact that he was drug-affected when he offended did not reduce his moral culpability.

54 As already discussed, the judge was not persuaded that JW's moral culpability was affected by his underlying mental illness. He went on, however, to make an alternative finding in these terms:

even if this Court were to find that your moral culpability was lessened as a consequence of your mental illness, in my view, other countervailing sentencing considerations, including protection of the community, would prevail.

55 As mentioned earlier, this was an issue to which his Honour drew attention from the outset of the plea. Early in defence counsel's submissions, the judge said:

The question that is clearly raised is how to evaluate his future risk and prospects of rehabilitation. He made a number of illuminating answers in the course of his record of interview as to his attraction to ice and the effect it has upon him.

56 Subsequently, his Honour expressed concern about the fact that, soon after the 29 March 2014 police interview, JW had committed more serious sexual offences. His Honour said to defence counsel:

His offending escalated notwithstanding that he was on notice. I have to ultimately have regard amongst other factors to the protection of the community ... I must still form a view about your client's prospects of rehabilitation and have a view about the degree to which he represents a continuing danger to the community.

... [T]he question for a sentencing judge is how to evaluate ongoing risk. In my view it is relevant to an assessment of ongoing risk as to the number of occasions in which your client has offended in a sexual context ...

57 Quite rightly, his Honour was making the point that the very aspects of JW's mental functioning which were said to explain the offending - and to warrant a reduction in moral culpability - also suggested an increased risk of similar offences in the future and, hence, the need to treat protection of the community as a very significant consideration. A similar issue arose in DPP v Patterson,[22] where intellectual disability was, on the one hand, said to reduce the offender's culpability and, on the other, to increase the need for community protection. This Court described the sentencing exercise in such a case as one of particular difficulty.[23] There, as here, s 6D of the Sentencing Act 1991 applied, obliging the sentencing court to treat community protection as the paramount sentencing consideration.

58 There was no challenge on the appeal to his Honour's conclusions about the significance of the risk of reoffending. In our respectful opinion, his Honour's alternative conclusion was also well open. That is, even if he had been persuaded that the mental illness (as distinct from the effect of methamphetamine) had contributed to the offending, he would not have reached a different conclusion as to the appropriate sentence, given the importance of protection of the community as a sentencing consideration.[24]

59 We turn finally to deal with the question of general deterrence.

60 As has been made clear, the plea submissions and the expert evidence concentrated on the question of moral culpability. No separate oral submissions were directed at the question of general deterrence. The point was, nevertheless, raised in defence counsel's written outline, in these terms:

The primary cause of the obsessive conduct was the methamphetamine use, which arose in the context of his reduced capacity due to psychosis.

The principles in Verdins apply to an appropriate extent:

(a) moral culpability should be assessed in the context set out by Dr Deacon at Opinions 7-8 (page 7-8), that is to at least to a mild extent;

(b) general and specific deterrence should therefore be moderated to some degree;

(c) Mr Wright will be more vulnerable in gaol than a prisoner with normal mental health and will likely experience gaol as more onerous (Opinion 12); and

(d) the prison setting may impact adversely on his mental health (opinion 12).[25]

61 As can be seen from the words 'should therefore be' in paragraph (b), the contention that general and specific deterrence should be 'moderated to some degree' was said to be the corollary of the contention with respect to moral culpability. As already discussed, the latter contention could only succeed if a relevant connection were established between the mental illness and the offending. The contention as to general deterrence proceeded from the same premise. That is, if the mental illness were shown to be an operative cause of the offending, then JW should not be viewed as a suitable vehicle for general deterrence. That is, of course, one of the ways - indeed, the most common way - in which this consideration is addressed in a case such as the present.[26]

62 Logically, therefore, the judge's rejection of the contention with respect to moral culpability meant that the contention concerning general deterrence had also to be rejected. On his Honour's finding, JW was not to be viewed as (relevantly) a 'mentally ill' offender at the time of the offending. Rather, he was to be viewed as someone who had taken a powerful drug which had caused him to offend in the way he did.

63 On the appeal, however, counsel for JW submitted that the question of general deterrence could, and should, have been looked at in a different way. As counsel pointed out, the relevant proposition (no 4) was expressed by the Court in Verdins as follows:

Whether general deterrence is to 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.[27]

64 The Court there quoted the following statement from R v Engert:[28]

General deterrence is simply the deterrence, of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'.[29]

65 Whether this argument would have been available to JW would have depended on evidence and argument which were not presented to the sentencing judge. On the evidence, as already noted, JW is capable of leading a relatively normal, law-abiding life so long as he adheres to his prescribed antipsychotic medication. At the time of sentence, he had been back on his medication, and abstinent from methamphetamine, for some months. He would still, of course, have been accurately described as suffering from an underlying mental illness but, in the absence of expert evidence, no firm conclusion could have been reached about whether the existence of that underlying condition - at the time of sentence - required some moderation of general deterrence.

66 As we have explained, this contention was not advanced before the judge. As this Court has made very clear, arguments based on Verdins must be articulated at first instance. Except in the rarest of circumstances, the Court will not allow a new argument based on Verdins to be raised for the first time on appeal.[30]

67 A final point should be made about general deterrence. As Osborn JA pointed out in argument, those taking antipsychotic medication comprise a class of people who are themselves properly the subject of general deterrence, given the nexus between illicit drug use by such persons and the commission of serious offences.

68 For these reasons, the appeal against sentence must be dismissed.

Possess drug of dependence (cannabis)[37]

Deal with proceeds suspected of being the proceeds of crime[38]

Other orders: Forfeiture Order; Compensation Order; Disposal Order; sentenced as a serious sexual offender in respect of charges 11 and 12; registered as a sex offender for life

[1] The abbreviation is used for ease of reference only.

[2] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[3] See [45]-[47] below.

[4] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 476-7; see DPP v Kemp [2015] VSCA 108 [48]; and see Nairn v The Queen [2015] NSWCCA 290 [36]-[38].

[9] O'Connor v The Queen [2014] VSCA 108 [22], [63] ('O'Connor').

[10] Cf Ross v the Queen [2015] VSCA 302.

[11] See [45]-[47].

[12] DPP v Wright (County Court of Victoria, Judge Taft, 18 November 2014) ('Reasons').

[14] See DPP v O'Neill [2015] VSCA 325 [74] ('O'Neill').

[15] [2013] VSCA 196 [25], quoting Tran v The Queen [2012] VSCA 110 [17]-[19] (citations omitted).

[16] DPP v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, 311 [33]-[34].

[17] See O'Connor [2014] VSCA 108 [71].

[18] R v McKee [2003] VSCA 16 [13].

[19] Ibid [13], [21]; R v Lacey [2007] VSCA 196 [16]-[17].

[20] [2013] VSCA 362.

[22] [2009] VSCA 222.

[24] See Green v The Queen [2011] VSCA 311.

[26] See, eg, Khoja v The Queen (2014) 66 MVR 116, 122-3 [28].

[27] [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (emphasis added).

[28] (1995) 84 A Crim R 67.

[29] Ibid 72. And see now O'Neill [2015] VSCA 325 [82]-[83].

[30] Romero v The Queen [2011] VSCA 45.