Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Devaney v R [2012] NSWCCA 285
• Hearing dates: 26 June 2012
• Decision date: 21 December 2012
• Before: Allsop P at [1]; Price J at [101]; Campbell J at [102]

Decision

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed on the applicant by the District Court on 3 June 2011 by quashing the sentence for the offence in count 1 and in its place sentencing the applicant to a non-parole period of eight years imprisonment commencing on 8 November 2009 and expiring on 7 November 2017, with a balance of term of four years imprisonment commencing on 8 November 2017 and expiring on 7 November 2021; the earliest date for release on parole being 7 November 2017.

• Catchwords: CRIMINAL LAW - sentencing - shooting with intent to murder - mental illness - effect of standard non-parole period on sentencing - balancing of factors when sentencing mentally ill offender - sentence manifestly excessive
• Legislation Cited: Crimes Act 1900 (NSW), s 23A, s 29; Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A, s 44; Criminal Appeal Act 1912 (NSW), s 5; Firearms Act 1996 (NSW), s 7, s 7A; Judicial Officers Act 1986 (NSW), s 8
• Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Beldon v R [2012] NSWCCA 194; Bolt v R [2012] NSWCCA 50; Butler v R [2012] NSWCCA 23; Butters v R [2010] NSWCCA 1; Carlton v R [2008] NSWCCA 244; 189 A Crim R 332; Channon v R (1978) 20 ALR 1; Courtney v R [2007] NSWCCA 195; 172 A Crim R 371; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Du Randt v R [2008] NSWCCA 121; HG v The Queen [1999] HCA 2; 197 CLR 414; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; House v The King [1936] HCA 40; 55 CLR 499; Leach v R [2008] NSWCCA 73; 183 A Crim R 1; Lowndes v The Queen [1999] HCA 29; 195 CLR 665; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Pfizner v R [2010] NSWCCA 314; Phelan v R (1993) 66 A Crim R 446; Reberger v R [2011] NSWCCA 132; R v Bugmy [2012] NSWCCA 223; R v Cramp [2004] NSWCCA 264; R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272; R v Engert (1995) 84 A Crim R 67; R v Geddes (1936) 36 SR (NSW) 554; R v Harrison (1997) 93 A Crim R 314; R v Heatley [2006] NSWSC 1199; R v Hemsley [2004] NSWCCA 228; R v Manna [1999] NSWCCA 314; R v Mathers [2011] NSWSC 339; R v O'Donoghue (1968) 34 A Crim R 397; R v Olbrich [1999] HCA 54; 199 CLR 270; R v Palu [2002] NSWCCA 381; 134 A Crim R 174; R v Qutami [2001] NSWCCA 353; 127 A Crim R 369; R v Robinson [2002] NSWCCA 359; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; R v Storey [1998] 1 VR 359; 89 A Crim R 519; R v Sutton [2004] NSWCCA 225; R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] VSCA 102; 16 VR 269; R v Warfield (1994) 73 A Crim R 516; 34 NSWLR 200; R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Windle [2012] NSWCCA 222; R v Wiskich [2000] SASC 64; R v Wright (1997) 93 A Crim R 48; R v Z [2006] NSWCCA 342; 167 A Crim R 436; Suttle v R [2007] NSWCCA 264; Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465; Williams v R [2012] NSWCCA 172; Wong v The Queen [2001] HCA 64; 207 CLR 584
• Category: Principal judgment
• Parties: Todd William Devaney (Applicant); Regina (Respondent)
• Representation: H Dhanji SC (Applicant); J Girdham (Respondent); Legal Aid NSW (Applicant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/9962

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-06-03 00:00:00
• Before: Syme DCJ
• File Number(s): 2009/9962

Judgment

1 ALLSOP P: The applicant seeks leave to appeal against a sentence imposed by the District Court on 3 June 2011. He pleaded guilty to four counts as follows:

1. Shooting with intent to murder (Crimes Act 1900 (NSW), s 29) - maximum penalty of 25 years imprisonment; standard non-parole period of 10 years.

2. Unauthorised possession of a prohibited firearm or pistol (Firearms Act 1996 (NSW), s 7(1)) - maximum penalty of 14 years imprisonment; standard non-parole period of 3 years.

3. Unauthorised possession of firearm (Firearms Act 1996 (NSW), s 7A(1)) - maximum penalty of 5 years imprisonment.

4. Unauthorised possession of a prohibited firearm or pistol (Firearms Act 1996 (NSW), s 7(1)) - maximum penalty of 14 years imprisonment; standard non-parole period of 3 years.

2 The offences arise out of the events of 8 May 2008. On that day the applicant entered a gym at the Star City casino where his ex-girlfriend was working. He walked up to her and drew a pistol. She turned to run, and he shot her. The bullet passed through her abdomen. A second shot missed and passed through a glass window. A third bullet struck the victim in the lower abdomen and exited near her right hip.

3 Amid the ensuing chaos at the scene, the applicant absconded out on to the streets of Pyrmont. He had donned a fake moustache and beard for disguise. Police had cordoned off the area. He tried to evade them, but was apprehended.

4 In a shower cubicle at the casino, police located the applicant's backpack. It was found to contain, among other things, 90 rounds of .22 calibre ammunition, 33 rounds of .45 ammunition, a balaclava, a wig, a New South Wales police badge and two Star City swipe cards used for accessing the gym.

5 When he was apprehended by police the applicant was found to have in his possession a knife, along with a police warrant card and badge in the name of someone else. He was also carrying the following weapons:

(a) a loaded semi-automatic .22 calibre Beretta pistol. This was the subject of count 4 on the indictment;

(b) a loaded .22 calibre Phoenix Arms pistol fitted with a silencer (count 3); and

(c) a loaded automatic .45 calibre Norinco pistol (count 2). This was the weapon used to shoot the victim.

The sentence

6 The applicant has been in custody since his arrest on 8 May 2008. Prior to that date he had been charged with unrelated assault and stalking offences and, while on bail for those, he was also charged with a common assault. On 5 May 2008 he was convicted of those offences and warrants were issued for his arrest. The sentence imposed by the Local Court for those offences expired on 5 February 2009. The sentencing judge for the present offences partially accumulated the sentences upon that Local Court sentence. She sentenced the applicant as follows:

(a) On Count 3: a fixed term of imprisonment for two years commencing 8 August 2008;

(b) On Count 2: imprisonment for 3 years and 4 months commencing 8 January 2009, comprising a non-parole period of 2 years and six months and a balance of term of 10 months;

(c) On Count 4: imprisonment for 3 years and 4 months commencing 8 January 2009, comprising a non-parole period of 2 years and 6 months and a balance of term of 10 months (this sentence was wholly concurrent with the sentence for count 2);

(d) On Count 1: 14 years imprisonment commencing 8 November 2009, comprising a non-parole period of 10 years and one month and a balance of term of 3 years and 11 months.

7 Three other offences were taken into account without any further penalty. They related to the applicant's unauthorised possession of ammunition and police identity paraphernalia.

8 Thus the overall sentence imposed was a non-parole period of 11 years and seven months, which would expire on 7 December 2019. The balance of three years and 11 months will expire on 7 November 2023,

The approach of the sentencing judge

9 In the course, if I may respectfully say, of her careful and substantial remarks on sentence, the primary judge canvassed the applicant's background, including his history with the victim. That history included an apprehended violence order (AVO) being granted to protect the victim from the applicant. That order was breached during the term of its currency. Both the order and its breach related to the sending of harassing and threatening text messages. In 2007 and 2008, the applicant was charged and convicted of assault and stalk/intimidate offences. These related to persons other than the victim.

10 Her Honour considered the applicant's guilty pleas, which came after the matter was committed for trial. There was some delay occasioned by the applicant's change of solicitors and by issues relating to his mental health. Her Honour applied a discount of 15 per cent for the utilitarian value of the pleas.

11 In directing herself to the objective seriousness of the offences, her Honour first considered the injuries of and consequences for the victim. These were, as already indicated, two entry and two exit wounds to the abdomen. One bullet perforated the victim's colon and missed an iliac artery by two centimetres. The medical evidence was that the perforation posed a considerable risk to her life. The injuries could have been lethal had one of the bullets struck a major vascular structure. The victim was discharged from hospital after a week and eventually made a good recovery, though it took her some months to regain most of her functioning. She suffered significant post-operative pain. She required physiotherapy and psychological counselling. She is still traumatised by the incident. Her Honour noted that, while these consequences are serious and substantial, they are not an aggravating circumstance due to the nature of the offence itself.

12 Her Honour noted the prior domestic relationship between the applicant and his victim and, as a consequence, characterised this as a domestic violence offence. She considered both general and specific deterrence to be strong considerations. She found the applicant to have been obsessed with his ex-girlfriend, which obsession was continuing; that he set out to intimidate and instil fear in her; and that he was motivated by revenge. Her Honour was concerned that some of the applicant's unexplained contact with the victim years after their relationship ended was at a time when there was no evidence that he was suffering from the illness with which he was later diagnosed.

13 The sentencing judge considered the applicant's premeditation of the offences. He brought disguises to the scene, made enquiries in advance, collected weapons and ammunition and arranged for a taxi to wait for him at the casino. This level of detail in planning was, in her Honour's view, more than is usual in this sort of offence, and she considered this to be of some, though limited, significance.

14 Her Honour noted that the offence was committed in a public place and posed a risk to bystanders. Three shots were fired, and one missed its target and went through a window. It was only a matter of luck that that stray bullet did not injure someone. The offence instilled a high degree of fear in the general public, and this, in her Honour's view, constituted a moderately aggravating circumstance.

15 The sentencing judge then considered the applicant's prior offences and his response to supervision in the past. His record was lengthy, but her Honour paid particular attention to two armed robberies and other offences relating to possession and discharge of firearms, as well as going disguised with intent. There was no evidence that the applicant was suffering from mental illness at the time that these offences were committed. The three-and-a-half year sentence that he received in the mid-1990s (with further supervision thereafter) apparently did nothing to deter him from again accessing firearms. Two of the firearms in the present offences were prohibited weapons. Two weapons had also had their serial numbers removed.

16 Her Honour noted that there was no evidence of the applicant suffering mental illness when he committed two assaults occasioning actual bodily harm and an offence of carrying a knife in 2003, nor when he committed stalk/intimidate offences against his ex-girlfriend (the victim of his shooting in the present offence) in breach of the AVO. While the stalking offence involved no physical violence, her Honour considered that the applicant posed a violent danger to the community even when mentally well. A suspended term of imprisonment was imposed for his breach of the AVO and he was ordered to undertake rehabilitation and a Domestic Violence Perpetrators Course but there was no evidence as to whether that was completed.

17 The sentencing judge concluded that the applicant's history of prior violent offending was an aggravating circumstance and should be taken into account in assessing his future danger to the community. In her Honour's view, it disclosed traits of aggression, intimidation and resort to weapons.

18 Her Honour rejected a submission to the effect that this offence was of lesser seriousness because the applicant supposedly aimed at non-lethal parts of his victim's body. Rather, the lack of any fatality was in her Honour's view due to sheer luck and quick medical attention. Three shots were fired at close range; two of them hit. Major blood vessels were narrowly missed. The applicant was not shown to be an expert in either anatomy or precision marksmanship. It was also to be recalled that the applicant had pleaded guilty to an intention to murder. The level of planning involved, his use of disguises and his continued possession of loaded firearms pointed against any putative "desistence" of the intention to kill.

19 The sentencing judge assessed the objective seriousness of the firearms offences (counts 2-4) to be in the mid-range. The applicant was disentitled from any leniency as he had prior firearms offences. As for the shooting with intent to murder, her Honour assessed it as lying slightly above the mid-range of seriousness.

20 Turning to subjective factors, her Honour considered references from the applicant's parents, his parish priest and a prison chaplain. She was unconvinced, however, by reports of the applicant's genuine remorse. This was, at least in part, due to the applicant's choice not to give evidence.

21 The sentencing judge considered the future danger to the community posed by the applicant. In this respect, mental health issues loomed large. Her Honour considered reports from three psychiatrists. There was a consensus view that, at the time of committing the offence, the applicant was in a state of psychosis. The cause of that psychosis was later diagnosed as paranoid schizophrenia.

22 The sentencing judge had before her three reports from Dr Westmore. With regard to the first report, dated 6 February 2009, her Honour was concerned by the applicant's tendency to blame his ex-girlfriend for his difficulties and the broader unreality of his thinking even before he commenced using illicit drugs, chiefly amphetamines. He also denied shooting to kill. Similar concerns were raised by aspects of Dr Allnutt's reports (dated 5 October 2010 and 11 March 2011). Some of the applicant's self-reporting in these reports about his relationship with his ex-girlfriend contained inaccuracies, unjustifiable rationalisations, or unreal hopes or expectations. Again, her Honour was concerned by the reports of the applicant's animosity towards his ex-girlfriend and her family, and his reluctance to discuss the circumstances of the AVO with any of the psychiatrists. This inability or refusal to confront the entirety of his past behaviour toward the victim particularly led her Honour to doubt the genuineness of his expressions of remorse or regret.

23 Dr Westmore's third report, dated 18 January 2011, noted an improvement in the applicant and an acknowledgement by him that he was ill. Dr Westmore agreed with the applicant's self-reporting on this occasion that he was responding well to medication. The applicant also expressed regret about his offending to Dr Westmore. While Dr Westmore agreed that the applicant was acutely mentally ill at the time of the offence, his efforts to evade police after the shooting were evidence of his awareness of the nature and wrongfulness of his actions.

24 Dr Westmore's opinion on future dangerousness (as contained in his third report) was that as at 18 January 2011 the applicant was not demonstrating any signs of acute mental illness and that no concerns were evident, either for the applicant's ex-girlfriend or the community generally, while he was mentally well. This, however, would change if the applicant re-developed acute signs of mental illness. Dr Westmore recommended management in a forensic facility and ongoing, long-term psychiatric support thereafter. Without that, his risk to the community would be "significant" (according to Dr Westmore's second report, dated 12 October 2010).

25 Drs Wilcox and Allnutt agreed that the applicant's mental illness resulted in paranoia that particularly incorporated his ex-girlfriend. They also largely agreed with Dr Westmore's assessment about the applicant's future dangerousness and the need for fairly extensive, ongoing psychiatric management.

26 Her Honour's conclusion from all of this material was that only if the applicant was receiving medication and abstaining from illicit drugs, and managing other potential stresses in his life, could his future dangerousness be regarded as acceptable.

27 However, she inclined to the view that the applicant was attempting to manipulate his interviews with psychiatrists while avoiding full confrontation with his history with and attitudes towards his ex-girlfriend. Her Honour found the applicant to have little insight into his offending, to have a past that includes considerable blaming of his victim and to offer no explanation of his current attitude towards his ex-girlfriend. Without such confrontation, explanation and insight, the sentencing judge was not satisfied that the applicant could be genuinely remorseful or could be relied upon to adhere to the necessary course of ongoing medication and psychiatric management in circumstances where there was evidence that he had at times failed to take his medication even while in prison. Her Honour considered that the applicant's choice not to give evidence did not assist in this respect and he was deprived thereby of any finding of credibility about such remorse as he expressed to his psychiatrists, or about his intention to continue taking his medication.

28 Her Honour concluded that a risk of re-offending was established. In this respect she pointed to the applicant's criminal record (including as it does offences involving intimidation, assault and weapons), his mental health diagnosis, his failure to take medication whilst in custody, his motive for targeting his ex-girlfriend, the level of premeditation of his offence, his propensity to use weapons, his past abuse of illicit drugs and the risk, based on past relapses, that this will resume at some point, as would his contact with associates whose effect on him is such as to bring out or worsen his psychiatric symptoms. Even when on medication in prison, her Honour noted, the applicant had been involved in riot and intimidation.

29 While accepting that the applicant's mental health was a factor in his favour when assessing the issues of moral culpability and general deterrence, her Honour found that it also reduced his prospects of rehabilitation and, thereby, increased the risk he posed to the community (and particularly his ex-girlfriend and her family). The learned sentencing judge concluded that the risk of re-offending, and the risk to the community from that, was high.

30 Her Honour had regard to particular sentencing principles that apply to offenders suffering from mental health problems. She quoted from R v Hemsley [2004] NSWCCA 228, in which Sperling J said that mental illness may be relevant to sentencing in four ways. First, if the illness contributes to the commission of the offence, an offender's moral culpability may be reduced and, along with it, the sentencing factors of denunciation and punishment. Second, mental illness may render an offender an inappropriate vehicle for general deterrence. Third, a custodial sentence may weigh more heavily on a mentally ill person. Fourth, however, is a countervailing consideration, namely that a mentally ill person may present a greater danger to the community. Her Honour cited Hemsley itself, as well as other cases, to the effect that mental illness does not automatically require or lead to a lesser sentence being imposed: R v Manna [1999] NSWCCA 314; Courtney v R [2007] NSWCCA 195; 172 A Crim R 371.

31 The complaints on appeal centred upon the sentencing judge's approach to the applicant's mental illness. It was accepted that her Honour properly directed herself to the relevant principles. Rather, what was in issue was her application of those principles to the circumstances of this applicant's offending in light of the seven psychiatric reports (from three doctors) that her Honour had before her. Although not all grounds of appeal were expressed in terms of mental illness, in most if not all of them it can nevertheless be seen as the primary factor informing the complaints made.

The grounds of appeal and submissions thereon

32 Before setting out the grounds of appeal and identifying the submissions directed thereto, it is appropriate to say at this point that I have come to the view that the sentence for the most serious charge was excessive. That conclusion can be reached without necessarily accepting the more precisely framed complaints in the grounds of appeal. There is force, however, in a number of the grounds which may go to explain the severity of the sentence, even though it may not be necessary to reach a final conclusion about specific grounds. For these reasons, I have set out in some detail the competing arguments.

33 May I also say, at this point, that the sentencing judge was faced with a most difficult sentencing exercise. The clarity and completeness of her Honour's remarks made the task of this Court less onerous, for which I am grateful.

Grounds 1-3

34 These were argued together and can conveniently be dealt with collectively. They are:

Ground 1: That her Honour erred in that she gave insufficient weight to the evidence relating to the applicant's acute psychotic disorder at the time of the offences.

Ground 2: That her Honour failed to apply the principles relevant to sentencing mentally ill offenders to the facts and circumstances of the present case.

Ground 3: That her Honour erred in finding that the objective seriousness of count 1 - the s 29 offence (shooting with intent to murder) - was slightly above the mid-range of seriousness.

35 The thrust of the applicant's argument on these grounds was that the learned sentencing judge failed properly to consider the evidence relating to the applicant's mental illness, particularly its commencement and its causal relationship to the offences. It was said that it was not open to her Honour to find that the offence was slightly above the mid-range of objective seriousness when she had found that the applicant was suffering an acute mental illness at the time, that the illness played a significant role in his committing the offence, and that the factors of moral culpability and general deterrence were reduced.

36 The applicant also took issue with her Honour's finding that his behaviour in 2007, when he attempted to contact his ex-girlfriend, was at a time when there was no evidence that he was suffering from mental illness. It was said that her Honour at least found that he was becoming ill towards the end of 2007, but that that too was an error as there was, according to the applicant, psychiatric evidence that he had been suffering mental illness in 2006 when he went to Egypt. It was submitted that her Honour's finding that the applicant's motive being to create fear in his ex-girlfriend in 2007 should have been grounded in an acceptance that that motive itself was driven by his mental illness.

37 Counsel for the applicant undertook a substantial survey of the evidence relating to the applicant's mental health. It began with his reported depression while incarcerated in 1997. He was prescribed an antidepressant. Around 1999 he commenced using amphetamines and methamphetamines. That drug use contributed to the deterioration of his relationship with the victim, around 2004-2005. In August 2004 he committed a stalking offence and breached the AVO with his ex-girlfriend. In November 2004 he committed other stalking and harassment offences.

38 In 2006 he went to Egypt. He reported to psychiatrists that at that time he developed some apparently bizarre and psychotic beliefs. According to Dr Wilcox these were symptoms of illness unrelated to drug use. The applicant reported similar beliefs and experiences from his time in a Thai boxing camp in 2006. Later that year he was injured and experienced depression, suicidal thoughts and paranoid delusions. He resumed his drug use. In the applicant's submission, therefore, her Honour ought to have seen the applicant's history from 2006 onwards as a manifestation of the mental illness that seems to have begun in that year and not "hived [it] off" and considered it as a manifestation of domestic problems or violent tendencies unrelated to that illness.

39 In 2007 he assaulted a taxi driver and stalked his ex-girlfriend. The applicant reported to psychiatrists the paranoia that drove the former offence. He was sentenced for the assault and the stalking offence on 5 May 2008 (that is, three days before the offences involved in this appeal). He reported angry and irrational thoughts arising from that sentencing hearing, such as a belief that his ex-girlfriend's family were somehow collaborating with police to harass him. He thought that spirits and/or people on the computer were communicating with him.

40 The applicant's submissions criticised the sentencing judge's finding that the reports of the applicant's illness given by his parents were unsupported by reasons. Attention was drawn to the parents' statement that "he was far from thinking rationally over the years". This was said to be important evidence that was not given any proper weight by her Honour. It was said to countervail the "grain of salt" which the Crown recommended to the learned sentencing judge in relation to the psychiatrists' reports, given that in important respects they were based on the applicant's uncorroborated self-reporting.

41 The upshot of the applicant's submissions on grounds 1-3 was that all three psychiatrists agreed that the applicant was (or was likely to be) suffering mental illness at the time of the offence and that this illness not only contributed to the commission of the offence but permeated many aspects of it and of the sentencing task more generally (such as some of the applicant's history post-2006, the premeditation involved in the offence, the applicant's attitude towards weaponry, the objective seriousness of the offending and the factor of specific deterrence). The illness involved persecutory and other delusions in which his ex-girlfriend featured prominently. His capacities to make rational judgments, to control his faculties or emotions and to understand the wrongfulness of his actions were, it was argued, severely impaired. The applicant's case was that the sentencing judge failed to apply the appropriate principles to those circumstances. In particular, as articulated in the course of oral submissions, senior counsel for the applicant contended that the applicant's mental illness "permeated almost all aspects of the [sentencing] exercise" whereas the sentencing judge approached it in a separated or "compartmentalised" fashion that failed to take into account how the mental illness fed into other aspects of the analysis.

42 The Crown submitted that her Honour had regard to the proper authorities and that she engaged in the task of making the "sensitive discretionary decision" (R v Engert (1995) 84 A Crim R 67) called for by them. She considered the full range of relevant factors and correctly appreciated that in this case the sentencing factors that were reduced by the applicant's mental illness - general deterrence, moral culpability - were balanced by a heightened risk to the community, particularly in light of her doubts as to the applicant's adherence to a regime of ongoing treatment and medication.

Ground 4

43 This was that the sentencing judge erred in making findings on the respondent's future dangerousness. The nature of those findings has been summarised above in the summary of her Honour's remarks.

44 The applicant contended that the sentencing judge based her opinion as to future dangerousness on facts which it was not open to her to find. Five facts were highlighted. The first four of them essentially related to what her Honour saw as the somewhat unreliable if not manipulative approach of the applicant to psychiatrists and prison authorities, and his failure to come to terms with his condition and his need for ongoing medication. The fifth was her finding that even when appropriately medicated his behaviour was not calm and compliant.

45 Again the applicant's submissions went into considerable chronological detail. In June 2008, a month after being taken into custody, he was admitted to a psychiatric hospital. His symptoms included persecutory delusions about his ex-girlfriend, her family, police and the media. He was suspicious, irritable and abusive to staff. He was treated with fortnightly intramuscular injections and oral medication. The former was gradually reduced in dosage by doctors. In late November 2008 the applicant went back to the main prison. He was discharged from the hospital free of symptoms. Dr Wilcox would not have allowed this if she believed he was at risk or might default on his medication.

46 The applicant ceased his intramuscular medication in May 2009 and his oral medication in November 2009. In March 2010 he was readmitted to psychiatric hospital. Again he was given fortnightly intramuscular injections. His behaviour gradually improved. Dr Allnutt's report noted that by March 2011 the applicant had achieved remission of his psychotic symptoms. Dr Allnutt did, however, note that having regard to the applicant's criminal history prior to the onset of symptoms of mental illness, he presented a higher risk to the community than the population average. Dr Allnutt's conclusion was that the applicant's risk status would remain dependent upon whether he adhered to psychiatric treatment and follow-up in the community (which adherence was untested outside of prison), whether he became involved with anti-social associates, whether he recommenced substance abuse and whether he persisted with his interest in firearms.

47 The applicant submitted that her Honour fell into error when she found that Dr Allnutt had failed to advert to reports of the applicant's failure to adhere to medication while in prison. A passage from Dr Allnutt's report of 5 October 2010 was pointed to, in which the doctor notes the applicant's relapse.

48 It was also submitted that the sentencing judge overlooked the oral evidence of Dr Wilcox as to the cessation of the use of the intramuscular medication (Risperdal). That evidence was that the applicant was initially put on a reasonably high dosage, that the dosage was reduced, that the applicant continued to complain of side effects and that his doctors allowed him to cease that medication. There was also some suggestion that there was a failure by medical staff to follow up on the applicant's medication regimen.

49 On this basis, senior counsel for the applicant attacked the sentencing judge's finding that the reduction of medication was for anything other than good medical reason. A second finding - that the decision to release him into the general prison population was attributable to the applicant's manipulations in order that he might escape his medication through less stringent supervision - was attacked for wanting any evidentiary basis.

50 Her Honour's further finding that even when medicated the applicant was not calm and compliant was also said to lack support from the evidence. Senior counsel for the applicant submitted that her Honour based that finding on incidents that occurred either while the applicant was not taking medication or at a time when it is unclear whether he was or was not.

51 It was also submitted that the sentencing judge overlooked positive evidence from Dr Wilcox to the effect that the applicant was compliant and successful on a new medication without side effects, that any non-compliance was attributable to side effects of a former medication, that he has developed insight into his condition and that, as at the time of the report, he would soon return to the general prison population due to his being, in Dr Wilcox's words, "stable and compliant with medication". This was said to be supported by evidence from his parents who visit him in prison. The applicant submitted that this evidence was not challenged and that it directly contradicts two further findings under this ground of appeal, namely the findings that there was no evidence that the applicant accepted the need to be medicated for the foreseeable future and that he did not accept his medical condition. The former of these was further marred, it was submitted, by the sentencing judge's error to the effect that she was unable to assess the applicant's willingness to continue with his medication because he did not give evidence.

Ground 5

52 This ground of appeal was that the sentencing judge erred in failing to give any or sufficient weight to evidence of the applicant's remorse. Her Honour acknowledged that the applicant had expressed remorse to his psychiatrists. However, she gave either slight or no weight to such expressions. Her Honour said that the applicant could not have the benefit of a finding of credibility on this score as he had declined to give evidence. The applicant, citing Butters v R [2010] NSWCCA 1 and Pfizner v R [2010] NSWCCA 314, contended that this was erroneous as s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not prevent a finding of remorse if an applicant fails to give evidence. The persons to whom remorse was expressed - the psychiatrists and a priest - did not consider it to be insincere.

53 Taking grounds 4 and 5 together, the Crown submitted that her Honour was not in error to offset against certain subjective factors in the applicant's favour her findings as to his future dangerousness to the community. The onus of making out the mitigating circumstances in his favour lay on him (on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270). In that circumstance, it was argued that the applicant's failure to give sworn evidence capable of being tested at the hearing was properly used in assessing the weight to be given to assertions of remorse.

54 The Crown pointed to her Honour's overall assessment that the applicant only represented an acceptable risk to the community if he was receiving medication, abstaining from illicit drugs and managing other potential stresses in his life. This was said to be appropriately buttressed by correct findings of fact. Moreover, the Crown submitted, her Honour's findings as to the AVO in 2004 (before any symptoms of mental illness), indicating as they did threatening behaviour and animosity towards his ex-girlfriend, were unchallenged, as were her observations as to his reluctance to discuss that incident. This, it was argued, was sound evidence of what her Honour found, namely that the applicant's expressions of remorse were unaccompanied by a confrontation with the whole of his past behaviour and therefore were liable to have some doubts cast upon them.

55 The Crown emphasised those aspects of the psychiatrists' reports that indicated the applicant's higher than baseline risk even while medicated. This was attributed by Dr Wilcox to his interest in guns, his tendency to psychosis when on drugs and his past record of violence. Dr Westmore opined that the applicant belonged to a sub-group of mentally ill persons who pose a higher risk compared to both the general community and to other mentally ill persons. Dr Allnutt reported that considering the applicant's history prior to the onset of his psychotic symptoms - which included a violent offence, use of weapons, stalking and the breach of the AVO - the applicant represented an increased risk to the community when he was mentally unwell. All the doctors agreed that the applicant's risk to the community was reduced by an effective regimen of medication and treatment and agreed further on the need for this regimen to continue into the future in order to keep the risk manageable.

56 As for the applicant's cessation of medication and relapse, the Crown submitted that, even with the applicant's complaints about side effects, the cessation of all medication could not have been for any good clinical reason. It was argued that the primary judge's fears about the applicant avoiding his medication were well-founded when, according to the oral evidence of Dr Wilcox, even in a prison environment he was able to avoid following-up and to cease his medication. The doubts about the applicant's adherence to treatment, it was submitted, were buttressed by the sentencing judge's findings about his reluctance to confront his past and his illness fully. The self-reporting contained in the psychiatrists' histories, it was said, came close to a traversal of the applicant's own guilty plea.

57 The Crown supplemented these considerations with the evidence of the applicant's past hostility and intimidation towards his ex-girlfriend, which pre-dated any symptoms of mental illness.

58 The Crown also pointed to the applicant's account to Dr Wilcox, in parts of which he placed an "unjustified gloss" on events - for example, he said that he wished to harm his ex-girlfriend in the shooting (rather than to kill her) and that he presented himself to police (rather than disguise himself and attempt to evade them). This report was provided on 15 June 2010, however, and the Crown accepted - as her Honour did - that between March and June 2010 the applicant was suffering mental illness and was in the prison hospital.

59 The history given to Dr Westmore on 3 February 2009, which was a time when the applicant was receiving medication, reported that the applicant spoke not of his own illicit drug use but of his ex-girlfriend's and that it was he who delivered an ultimatum to her. He also said that he did not shoot to kill.

60 The Crown also pointed to the applicant's account to Dr Allnutt. While he acknowledged in this history that it was his own substance abuse that caused problems with his ex-girlfriend, he rationalised his offending by asserting that she was "a tough person" and again was ambivalent about his intention to kill.

61 The Crown submissions relied on R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and R v Palu [2002] NSWCCA 381; 134 A Crim R 174 to warn that a court ought to be wary of certain psychiatric evidence where the offender does not personally give evidence because it may constitute an uncontested history given through a third person by a self-interested person. Given that, it was put that her Honour was not required to act on the applicant's assertions to the psychiatrists and was right to be concerned that she had not received the direct evidence of the applicant. Accordingly, it was argued, her Honour's findings as to the genuineness and extent of his remorse, self-insight, likelihood to adhere to treatment and so on (and ultimately, through those factors, the risk he posed to the community in the future) were open to her to make, particularly in circumstances where the applicant had a history of violence even when no mental illness was claimed to be operative.

Ground 6

62 This ground is that the total sentence and non-parole period for count 1 were manifestly excessive. The sentence for count 1 - the shooting offence - was 14 years imprisonment with a non-parole period of 10 years and one month. As already noted, the maximum penalty is 25 years imprisonment and the standard non-parole period (SNPP) is 10 years.

63 The sentencing judge applied a discount of 15 per cent for the applicant's guilty plea. No complaint is made about that. Complaint is made, however, about her Honour's use of the SNPP as what was said to be a "starting point" for the determination of the appropriate sentence. The applicant's submissions pointed to three considerations. First, the sentencing judge assessed the count 1 offence as lying slightly above the mid-point of objective seriousness. Second, a 15 per cent discount was applied. Third, her Honour imposed a non-parole period of 10 years and one month (i.e. one month longer than the SNPP). In these circumstances, it was submitted that the SNPP was either used as a starting point or was given "determinative significance" in fixing the sentence (contrary to Muldrock v R [2011] HCA 39; 244 CLR 120 at [32]).

64 Given the demonstrated mental illness which the applicant was suffering, it was argued, following Muldrock, that the SNPP ought not to be regarded as significant when fixing a sentence for this applicant. This is because factors such as moral culpability, general deterrence, accountability and denunciation are all of reduced significance in the case of an offender with such a degree of mental illness.

65 Against this the Crown submitted that ss 54A(2) and 54B(2) and (3) oblige the Court to take into account the full range of factors, including the maximum sentence and the SNPP. Section 54A(2) requires that content be given to the SNPP for an offence in the mid-range of objective seriousness. The Crown also pointed to her Honour's acknowledgement of an eventuality that has been noted in the authorities (the sentencing judge cited Hemsley and Courtney), namely that the factors weighing in an offender's favour by virtue of mental illness can be balanced out by the consideration that that mental illness also means that the factor of future dangerousness/protection of the public may warrant greater weight: Veen v R (No 2) [1988] HCA 14 164 CLR 465 at 476-7.

66 Further, it was argued that the consideration of general deterrence here continues to be relevant despite the applicant's mental illness. The Crown pointed to authorities that suggest that one factor going to general deterrence is the offender's appreciation of what he or she was doing and the gravity of those actions: R v Wright (1997) 93 A Crim R 48 at 51. Thus, it was said, if this offender knew and appreciated what he was doing and the gravity of his criminal conduct, then general deterrence remains a relevant and not-greatly-moderated consideration here.

67 In this respect, it was submitted that the applicant's guilty plea indicated his acceptance of criminal responsibility and of an intention to kill. He formulated a plan, armed himself with three guns and ammunition for them, and obtained disguises. One could add that he arranged a taxi in advance for escape. These factors were said to constitute evidence that he acted with knowledge of what he was doing and of the gravity of his criminal conduct.

68 In these circumstances, and given the criminality involved, the sentencing judge's determination was said to be warranted. The Crown also pointed to the leniency that her Honour demonstrated by making the sentences for counts 2 and 4 wholly concurrent and structuring the sentences such that the applicant serves only 15 months for the three firearm offences (counts 2-4) before the shooting sentence commences.

Ground 7

69 The final ground of appeal is that the sentencing judge erred in failing to find special circumstances and in not imposing a non-parole period less than three quarters of the total sentence. The total of the accumulated sentences here is 15 years and six months. The total non-parole period is 11 years and seven months. This is approximately 75 per cent of the total head sentence (the precise figure is 74.73 per cent). Section 44(2) of the Crimes (Sentencing Procedure) Act requires that the non-parole period be no less than three quarters of the term of the sentence unless there are special circumstances that warrant it being less.

70 There is passing reference in her Honour's sentencing remarks that would seem to indicate that she made a finding of special circumstances in relation to count 1 based on the time that the applicant had already spent in custody for the local court sentences. The sentence for count 1 was 14 years with a non-parole period of 10 years and one month. This represents 72 per cent of the head sentence. Her Honour explicitly found no other features of this case that would amount to special circumstances.

71 The applicant argued that this was a case apt for a clear finding of special circumstances to be reflected in a lesser non-parole period. The applicant relied on Phelan v R (1993) 66 A Crim R 446 at 449-50, and the need or desirability - as expressed here by the psychiatrists - for the applicant to undergo an extensive period of conditional release subject to parole supervision. It was submitted that the critical factor in the evidence concerning the applicant's mental health was the need for his supervision and his adherence to a treatment regimen if his risk to the community on release is to be minimised.

72 The Crown referred, amongst other cases, to R v Cramp [2004] NSWCCA 264 where it was said that a finding of special circumstances raises so many discretionary considerations that an appellate court should be slow to intervene. Such intervention ought only arise if the non-parole period imposed is manifestly inadequate or excessive. Here, it was said, her Honour constructed an overall sentence that maintained the statutory ratio in the aggregate term in the absence of special circumstances.

73 The Crown argued that appellate intervention might be appropriate where the accumulation of sentences creates a disproportion between the overall non-parole period and the overall balance of term. However, the degree of accumulation remains a matter to be approached on a case-by-case basis and here, it was submitted, no error has been demonstrated - her Honour achieved what she set out to achieve in structuring a sentence that reflected the statutory ratio in its aggregate term.

Resolution of the appeal

74 The appeal raises difficult questions of judgment and assessment in imposing a sentence for a serious crime on an offender who is mentally ill. It raises problems which are, as Basten JA said in Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1], "to an extent intractable".

75 These considerations arise by reason of the need to resolve the just and proportionate response to the commission of a grave crime by someone suffering significant a psychiatric illness that is relevant, indeed central to the commission of the crime. Logic may dictate that such circumstances necessarily lead to significant leniency in sentence. That is not so. Nevertheless, in my view, the sentence for count 1 here was manifestly excessive.

76 Whilst no significant debate took place in argument about the relevant principles to apply in sentencing a mentally ill offender, reference to such principles is necessary to guide not only the proper assessment of the sentence imposed by the sentencing judge, but also, given my view that it was manifestly excessive, the sentence that should be imposed.

77 One necessarily begins with the purposes of the sentence: the Crimes (Sentencing Procedure) Act, s 3A:

"The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community."

See also Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 476:

"... protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform."

78 Gleeson CJ, in Engert, remarked that the interplay of these considerations (referring to Veen (No 2)) may be complex, even intricate. The Chief Justice referred to the frequency with which the mentally ill came into collision with the criminal justice system and to the "sensitive discretionary decision" that is called for in these circumstances.

79 The judgment of the majority (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen (No 2), especially at 472-477, though dealing with manslaughter by reason of diminished responsibility, is of particular guiding assistance. The place of the protection of the public in the assessment of the just and proportionate sentence, as distinct from preventative detention derived from the need for such protection, and the difficulty in distinguishing the two is illuminatingly discussed. As the majority in Veen (No 2) said (at 476), sentencing is not an exercise in logic. A heavy sentence for someone whose moral responsibility for a crime has been lessened by mental impairment may be illogical. But the just proportionality of a sentence must be such as supports, and not undermines, public confidence in the processes of criminal justice and the law: cf Veen (No 2) at 477. Powerful considerations in any case in that regard are the institutional response to and punishment of life threatening violence inflicted in a terrifying attack, and the protection of the public. The difficulties involved were discussed by Basten JA in R v Windle [2012] NSWCCA 222 at [41]-[50].

80 Veen (No 2) and Engert make clear that the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead to an automatic (or logical) consequence of a reduction in sentence because of its effect on moral culpability. The same point was made by Brennan J (sitting on appeal in the Federal Court from the Supreme Court of the Northern Territory) in Channon v R (1978) 20 ALR 1 at 4-5. Brennan J also referred to the, perhaps wider, notion of "protection of society" used by Herron CJ (with the agreement of Sugerman JA and Walsh JA) in R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274, as the ultimate purpose of the courts in sentencing, mediated through an assessment of the moral sense of the community (and thus the reaching of a just and proportionate punishment): see also R v Geddes (1936) 36 SR (NSW) 554 at 555 (a case which might be thought to reflect the change over time in the general moral sense of the community and its impact on what is a just and proportionate sentence).

81 Guidance as to the effect of psychiatric illness not amounting to insanity to the sentencing process was helpfully discussed by the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398 at 400 and in R v Verdins [2007] VSCA 102; 16 VR 269 at 276 [32]. In the latter case the Court (Maxwell P, Buchanan and Vincent JJA) discussed Tsiaras in some detail by reference to other intermediate appellate decisions around Australia and said at [32]:

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

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

82 The first to fourth of those considerations are of particular relevance here. One matter not discussed in that analysis is the critical question of the protection of the public. This matter weighed heavily on the sentencing judge's consideration, and rightly so.

83 Verdins has been followed in a number of decisions of this Court: eg Leach v R [2008] NSWCCA 73; 183 A Crim R 1; Courtney v R [2007] NSWCCA 195; 172 A Crim R 371; Carlton v R [2008] NSWCCA 244; 189 A Crim R 332; Du Randt v R [2008] NSWCCA 121; Suttle v R [2007] NSWCCA 264; and Windle.

84 Some considerations need to be recalled at all times. First, the applicant pleaded guilty to count 1; and thus to the mental element of shoot with intent to murder. Secondly, notwithstanding a degree of merit in the applicant's submissions about her Honour's findings about the dangerousness of the applicant, he is, without doubt, a man capable of violence of the most serious kind. He was a kickboxer and has a knowledge of, and some facility with, guns. He has now used them in an attempt to kill a person. He is potentially a very dangerous man. His psychiatric condition is such that unless he is taking appropriately prescribed medication, he can be prone to psychosis and violence. This would be made worse if he relapses to resort to amphetamines or to keep some of his former company. Thirdly, whilst protection of the public is an important consideration (see Crimes (Sentencing Procedure) Act, s 3A(c)) the sentence that is imposed should be no more than is just and appropriate in the light of the offending.

85 In my respectful view, the sentence for count 1 was manifestly excessive.

86 There was agreement among all three psychiatrists that the offence was committed while the applicant was suffering from a psychotic illness involving persecutory beliefs that were directly contributory to the commission of the crime. He was delusional. He had no awareness that he was suffering from any mental illness. He was floridly psychotic. His mental state should have permeated the consideration of the appropriate sentence. Together with the potential danger to the public, it was the dominating consideration in the sentencing process. For instance, it can be readily accepted that there was a degree of careful planning and execution of the crime. That is not surprising in one psychotically deluded as to the victim's part in a plot by police, ASIO and her family to have him put in prison.

87 The Crown put the submission below and on appeal, and to a degree the submission was adopted by her Honour, that there should be some discounting of the clarity and force of the psychiatric evidence because the applicant did not give evidence. For instance, her Honour thought that there was a degree of manipulation of the psychiatrists by the applicant.

88 It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition. Further, the submissions of the applicant about her Honour's findings concerning his response to medication have force.

89 Whilst it is uncontroversial to recognise the significant degree of danger to the community that the applicant represents if he is unmedicated, the sentencing judge was not entitled to conclude on the material, for the reasons addressed by the applicant, that the applicant had manipulated the psychiatrists or that he removed himself from medication. That is not to say, in particular in the light of Dr Wilcox's oral evidence, that there is not a risk that he will fall off his medication if out of prison.

90 Given the unanimous medical evidence as to the psychotic condition of the applicant at the time of the offending and of its causative relevance, notions of deterrence (especially general deterrence) and denunciation become significantly attenuated. The mental illness was a consideration to permeate the whole of the sentencing task.

91 It is difficult to conclude in the circumstances of the case, in particular in the light of the medical evidence, that the SNPP was not given determinative significance, or at least a significance not warranted given the applicant's mental condition. There is no particular expression of reasons that would immediately reveal operative error from an approach derived from R v Way [2004] NSWCCA 131; 60 NSWLR 168 that could be seen to be disapproved in Muldrock. Nevertheless, the conformance of the sentence in fact with a calculation that can be derived from working back from 15 years, with a 15 per cent discount and a characterisation of slightly above the middle of the range of objective seriousness, leads one to infer that such weight was given to the SNPP that it contributed to a sentence of excessive severity. Certainly the sentencing judge can be taken to have followed the then present orthodoxy of approach following Way before it was corrected in Muldrock: Bolt v R [2012] NSWCCA 50 at [35]-[36]; Williams v R [2012] NSWCCA 172 at [4]. It is not necessary to come to a final view about whether the sentencing judge made this error. Its possibility may assist, however, in explaining the heaviness of the sentence.

92 Contrary to the views of the sentencing judge, the mental illness, its capacity for treatment and the views of the psychiatrists as to the desirability of an extensive period of conditional release under supervision made this case particularly apt for a shorter non-parole period than 75 per cent under the Crimes (Sentencing Procedure) Act, s 44.

93 The above reasons call for the applicant to be resentenced. The focus of the submissions was upon the excessive nature of the sentence for count 1. No submission was put in respect of the structure of the sentences and in particular the accumulation. Thus, I will concentrate upon the sentence for count 1.

94 I do not propose to repeat all the considerations to which I have made reference on the primary facts. Undoubtedly protection of the public is a significant consideration. The applicant had a specific intent to murder. If, however, his aim had been better, he would undoubtedly have murdered the victim. The medical evidence was unanimous that he would have been entitled to a factual finding of substantial impairment. The statistics provided for manslaughter by substantial impairment after the hearing of the appeal were of some, though necessarily limited, significance. What is not clear from them as a group is the extent to which danger to the public was present as it is here, should medication not be taken. Taken individually, comparison of different cases is apt to mislead or confuse because of the need for moral or judgmental comparisons that will only distract from the central task of assessment of this offending. They do, however, give a sense of the "moral sense of the community": cf Cuthbert.

95 Parole conditions for any balance of term could no doubt be structured to require close supervision of his medication, in the absence of compliance with which he would be returned to prison.

96 The imposition of an appropriate sentence is extraordinarily difficult. The applicant intended to kill a young woman in an attack which was terrifying for her; he badly injured her, giving her lasting physical and psychological damage. His psychological state was delusional, which was directly causative of the attack. His moral culpability is significantly reduced by the psychotic state; specific deterrence is of reduced relevance; and general deterrence is significantly attenuated. A significant period of supervision on parole is called for, not least because of his danger to the public when not under medication. There had also been violence in the past but it was far from clear that those episodes were not substantially connected with his mental illness as it was developing or had developed.

97 Nevertheless, the sentence should be sufficiently severe such that it will not undermine public confidence in the sentencing process being carried out in a way that places protection of society (including the victim and her family) at its heart in the ascertainment of a proportionate and just sentence.

98 In my view, a head sentence of 12 years with a non-parole period of eight years is the just and proportionate sentence for count 1. Any parole conditions in due course would no doubt be directed closely to the supervision of his compliance with a regime of medication.

99 The significant head sentence reflects the available protection to the public should he not comply with parole conditions. The non-parole period is also significant. It represents the importance of his plea to the mental element of the offence - his intention to kill the victim - as well as a proportionate response to a potentially deadly and terrifying attack by someone who has been violent in the past, ameliorated by his reduced moral culpability and the attenuated relevance of deterrence. The special circumstances arise from his clear need for extended supervision in relation to maintaining his medication regime.

100 Thus the orders that I propose are:

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed on the applicant by the District Court on 3 June 2011 by quashing the sentence for the offence in count 1 and in its place sentencing the applicant to a non-parole period of eight years imprisonment commencing on 8 November 2009 and expiring on 7 November 2017, with a balance of term of four years imprisonment commencing on 8 November 2017 and expiring on 7 November 2021; the earliest date for release on parole being 7 November 2017.

101 PRICE J: I agree with Allsop P.

102 CAMPBELL J: I have had the benefit of reading the judgment of Allsop P in draft. With great respect, I have come to a different view about the disposition of the appeal. In light of this, it is necessary to set out my reasons in some detail. Unfortunately, this will involve repetition of matters covered by the President about which there is no, or no great, disagreement.

Background

103 Her Honour summarised the primary facts relating to the commission of the offences in the following way (ROS p2-6):

The facts are not complicated but the circumstances of the offences commence four years prior to the offences actually occurring. A statement of agreed facts was tendered. In summary they disclose that the accused and Ms Graham were involved in a domestic relationship between mid 2001 and August 2004. They lived together for some of that time but were physically separated by August 2004. In November 2003 an apprehended violence order was granted to protect the victim Ms. Graham from the accused. That order expired in February 2005 but the accused breached it during the course of its currency. Both the AVO and the breach of the AVO involved the offender sending harassing and threatening text messages to her often in the context of his drug use but did not involve actual physical violence against her. They caused her concern for her safety. Approximately four years passed without Ms. Graham having received any harassing or threatening communication from the offender. On 25 July 2007 the offender called and asked her to meet him for coffee. She replied "I can't do that, please don't call me anymore, I've actually moved on and I'm engaged. Please take care, best wishes", before terminating the call.

On 26 October 2007 the offender was charged with an unrelated assault and stalk intimidate. He was released on bail. On 19 April 2008 he was charged in relation to the common assault of a different acquaintance. On 5 May 2008 the offender was convicted of both the charges in his absence, s.25(2) warrants were issued for his arrest. On 8 May 2008 the events, the subject of these charges, occurred.

In November 2006 Ms Graham began working at the Star City Casino gym on Level 5 as a fitness instructor. On 8 May 2008 after returning from holiday she had began her shift at 1 pm and was scheduled to conduct a yoga class at 1:30 pm. The offender was observed on the steps of the Star City Casino at 12:47 pm. He remained in the toilets until 1.41 pm before he requested a swipe card at reception. Some time before 2 pm the offender approached a taxi driver waiting at the Star City Casino rank and handed the driver a $20 note saying "I'm going upstairs for something then I'll come back down". The driver thought the offender seemed normal not nervous or in a rush and speaking normally. The offender re-entered the casino and travelled to the gym on Level 5.

Ms. Graham began her class at approximately 1:40pm. After the class began she saw the offender approaching walking straight towards her. She was immediately scared and expected trouble so she asked the sole participant in the class, Ms Sari Busan to leave. As Ms Graham looked toward the offender who was now approximately two or three metres away, she saw him move his right hand from behind his back holding a large grey gun. He came closer held the gun out and pointed it at the middle of her body. Ms. Busan heard the offender say something like "just leave us here" to her. Ms. Busan moved away. Ms. Graham was shocked and scared, she turned to run, although the offender was blocking any escape path. She then felt shock to her body and heard the sound of a gunshot. A bullet entered her body just below the right rib cage and exited just below the left rib cage. The offender then fired a second shot that missed her and travelled through a large glass window into the gymnasium area. The offender turned towards the victim, then pointed the gun down towards the victim's hips and fired a third shot. The bullet from that shot entered her left lower abdomen and exited near the right hip. The three shots were approximately one second apart. The scene within the gym became chaotic with staff running everywhere. The offender presenting as confident and not afraid placed the pistol into his backpack and walked to the far exit door. Also in the gym at the time was Samir Bahan who ran and hid behind some equipment and then watched the offender walk with the gun in his hand and backpack on at a fast pace towards the entrance and he exited. A staff member of the gym, John Barker, administered first aid to the victim and he was joined by a Renee Jones. The victim told Barker and Jones that the male who shot her was the offender, her ex-boyfriend.

The offender came through the door into the lounge area of the Chairman's Lounge on Level 4, asked for directions to the elevators and sprinted off in that direction. Security staff located an image of the offender in a lift. Numerous copies were made and distributed to police and security.

The offender was seen by Jessica Moss at a business located on the corner of Pyrmont Bridge Road and Pyrmont Street. He ran around the corner to the entrance of that business and rang the intercom, then grabbed the door handle and began shaking it forcefully in an apparent attempt to gain entry. When sirens were heard the offender looked over his shoulder and seemed to become agitated. He de-camped and dropped his dark jacket and pressed himself into the corner of the alcove in an apparent attempt to hide. The offender held his backpack in front of him and ran across the road towards Harris Street where he entered the car park area of a building. Police wearing bullet proof vests established traffic control points at the corner of Pyrmont and Union Streets and surrounds. They conducted a search. Inside a stairwell on the ground floor they located a toilet area where they found a dark coloured backpack in a shower cubicle, the contents of that backpack included a box containing 75 rounds CCI brand .22 calibre ammunition, a black woollen balaclava, a box containing 33 rounds of PMC .45 calibre ammunition, a black wig with Ascot sales tag attached, two bottles of adhesive gum and solvent and two Star City swipe cards.

Constable Coffey observed the offender walking down Pyrmont Street towards Pyrmont Bridge Road. The offender was now wearing a fake moustache and beard, was perspiring heavily and appeared to be attempting to avoid police. Constable Coffey asked the offender what his name was and the offender replied "Todd". Constable Coffey immediately apprehended him. A number of other police began to assist, Constable Coffey advised the offender that he was under arrest for the shooting and told him to drop the bag however the offender held it until police removed it from him. Constable Coffey began to place handcuffs on the offender and said, "Where's the gun". The offender said "pocket, front pocket". Another officer removed the back semi automatic Beretta .22 calibre pistol from his pocket. Constable Coffey then again informed the offender that he was under arrest and cautioned him, when asked whether he understood the offender replied "yeah" and nodded.

Senior constable Rose checked the pistol and noted that the magazine was loaded although no round was chambered. He searched the bag, inside was a silver and black Phoenix Arms .22 calibre pistol with a loaded magazine and grey silencer attached. He also located a black Norinco .44 calibre pistol with a loaded magazine and another magazine. Also located was a full faced novelty mask with a receipt from Presto Magic Studios dated 26 February 2008. A silver coloured knife was located on the body of the offender.

In checking the crime scene and ballistics the following was observed: Inside the gym Star City Casino three .45 calibre colt pistol cartridges casings were located, a glass panel window of the gym was fractured by a bullet hole approximately ninety one centimetres up from the ground. On 18 July 2008 a number of exhibits were examined and they included the .45 calibre automatic self loading pistol with its serial number obliterated, that the firearm was in working order and is a prohibited pistol. Secondly a .22 long rifle calibre Phoenix armed self loading pistol with its serial number obliterated, Senior Constable Shay concluded that the firearm was in working order, can be fitted with a silencer and is a pistol. And thirdly a .22 calibre long rifle calibre Pietro Beretta self loading pistol serial number M21058.

The firearm was in working order and is a prohibited pistol. A series of cartridges were examined and found to be suited for use in the firearms examined, testing revealed that the .45 automatic colt pistol calibre rounds had been discharged from that firearm.

104 The applicant was convicted of unrelated assault and stalking offences on 5th May 2008, but absconded before sentence, and a warrant had been issued for his arrest. He told Dr. Bruce Westmore, a forensic psychiatrist qualified to give evidence on his behalf for the purpose of the proceedings in the Local Court (Exhibit "C" - Report 6 February 2009), that after his conviction on these offences he refused to return to Court to be sentenced.

105 Dr. Rosalie Wilcox, his treating psychiatrist, who gave evidence in report form and orally, recorded that during the court lunch break on 5th May 2008 the prosecutor, in response to Mr. Devaney's inquiry, had told Mr. Devaney that he would be asking the Court to impose a full-time custodial sentence because Mr. Devaney had a "stalk and intimidate" on his prior record. That matter, as her Honour pointed out, related to the victim, Ms. Graham. (Exhibit "A" report 15th June 2010).

106 I interpolate, one would think a prior conviction in 1995 for a series of offences relating to armed robbery with a firearm may have been more pertinent.

107 Apparently, however, the prosecutor's comment led Mr. Devaney to blame the victim of the shooting for his then predicament. He told Dr. Westmore I thought all the police harassment started with her and her family. In any event, his account to both psychiatrists was to the effect that he returned to his parents' home and got all my guns. He told Dr. Westmore I knew I was going to do something bad but I didn't know what yet. Dr. Wilcox received this version (Exhibit A, pp3-4):

He did not want anything illegal found on his father's property and for this reason he took all his pistols from his safe. He knew that he had snapped and was going to do something stupid or bad, although at that stage he was not sure what he was going to do and recalled feeling confused and distressed.

Dr. Stephen H. Allnutt, who reported on behalf of the prosecution (5th October 2010, Exhibit 3), was given a slightly different version, but to the same effect. Mr. Devaney told him that he blamed Ms. Graham for his predicament. He confirmed (at p 5):

He went home and collected his guns; having left court prematurely he was aware that he was now probably a man with a warrant out for his arrest; he collected his guns because he knew that the Police were going to his home and probably his house and that his guns were illegal.

108 As the President has said, all of the psychiatrists agreed that at the time of the occurrence of the offences, Mr. Devaney was suffering the active symptoms of paranoid schizophrenia, previously undiagnosed and, accordingly, untreated. Dr. Wilcox and Dr. Westmore were of the view that had Ms. Graham died, Mr. Devaney's condition was such that he would have had available to him the partial defence of substantial impairment (Dr. Wilcox Exhibit "A" 15th June 2010; Dr. Westmore Exhibit "B" 18th January 2011). That matter is, of course, hypothetical, fortunately, but it is apt to point out that the question of whether Mr. Devaney's impairment was so substantial so as to warrant liability for murder being reduced to manslaughter would not have been a matter for expert opinion: s.23A(2) Crimes Act 1900 (NSW) ("Crimes Act").

General Propositions

109 Before dealing specifically with the grounds of appeal, I think it appropriate to acknowledge that the principles governing the exercise by an intermediate appellate court of its powers in sentencing appeals. They are clearly settled and require no elucidation by me. Notwithstanding this I remind myself that the identification of appellable error in this context depends upon the engagement of the well known principles enunciated in House v. The King (1936) 55 CLR 499 at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

110 In Wong v. The Queen (2001) 207 CLR 584 at 605 [58] Gaudron, Gummow and Hayne JJ said:

Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

111 Moreover, the statement of the unanimous Court in Lowndes v. The Queen (1999) 195 CLR 665 at 671 - 2 [15] must always be brought to mind:

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established... Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

112 Her Honour, as she was required by law to do, passed sentence on Mr. Devaney for the Part 4 Division 1A offences in conformity with the decision of this Court in R. v. Way (2004) 60 NSWLR 168.

113 In written submissions, copies of which were provided to us at the hearing, each party directed her Honour's attention to the need to apply Way's case.

114 At ROS 7, her Honour showed that she accepted these submissions in the following way:

In assessing the objective seriousness of the offences the court has regard to the facts [and] matters which relate directly to and may explain why the offences were committed, the circumstances of aggravation and of mitigation which are present or which apply to the particular offender as listed in s.21A of the Crimes (Sentencing Procedure) Act. These are matters which the court must take into account as referred to in the case of R. v. Way...

Following that statement of approach, her Honour, as the President has observed, embarked upon a careful, detailed, and comprehensive consideration of all the relevant factors which, in her Honour's judgment, bore upon her decision in the particular circumstances of the case before concluding, after a reference to s.3A of the Sentencing Act (ROS 30), as follows:

I assess the shooting with intent to murder offence as an offence of slightly above mid range seriousness.

115 In Muldrock v. The Queen (2011) 244 CLR 120, a unanimous High Court disapproved of the approach that had been taken to sentencing in standard non-parole period matters in Way in two respects which may be important for the present case. First, (at 132 [27]):

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

Secondly, the Part 4 Division 1A amendments neither require or permit the adoption of a two stage approach to the sentencing of offenders ... commencing with the consideration of whether an offence is within the middle range of objective seriousness by comparison with an hypothesised offence answering that description, and in the event that it does, by inquiring if there are matters justifying a longer or shorter period. Rather, what is required is for the judge:

...to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. (Muldrock, 132 [29]).

116 By reference to these considerations, it can be seen that her Honour, by faithfully applying Way, possibly may be said to have, without any "fault" on her part, or the part of the parties, adopted an approach which, strictly, offends the first principle referred to in the immediately preceding paragraph, and which accordingly constitutes an error of principle.

117 However, the cases in this Court which have considered claims of "Muldrock error" clearly establish that adherence to the authority of Way does not necessarily bespeak error: e.g. Butler v. R [2012] NSWCCA 23 at 26 per Davies J; Williams v. R. [2012] NSWCCA 172 at [40] - [43] per Price J. (I do not purport to be exhaustive. For a full review of the relevant decisions by R.A. Hulme J writing extra-judicially see (2012) 24 JOB 81).

118 It must be said that despite the detailed and careful written and oral argument advanced on behalf of Mr. Devaney, error of principle of this nature is not contended for, except indirectly in relation to ground six. Moreover, to my mind, the full identification by the learned sentencing judge of the facts, matters and circumstances which her Honour concluded bear upon the judgment that she reached about the appropriate sentence demonstrate substantial compliance with the requirements of Muldrock (at 132 [29]). In Wong at 611 [75] Gaudron, Gummow and Hayne JJ described the task of the sentencer in these terms:

... to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. (Footnotes omitted);

(See also Markarian v. The Queen (2005) 228 CLR 357 at 378 [51]).

119 In my judgment, it follows that to demonstrate appellable error, Mr. Devaney needs to make good, otherwise than by reference to "Muldrock error", one or more of his enumerated grounds of appeal, and even then only if he has demonstrated error in the House v. R sense.

Grounds of appeal

Grounds 1, 2, and 3

120 The applicant and crown addressed the first three grounds together. These grounds concern how the trial judge dealt with the issue of the applicant's undoubted mental illness.

121 It is submitted that it was incorrect for the learned sentencer to state that there was no evidence of the applicant's mental illness at the time of his contact with his victim in 2007, and that this constituted error.

122 The applicant submitted that the judge erred in her consideration of the evidence relating to the applicant's mental illness, in particular the questions of when it commenced, and its causal relationship to the offences. It was submitted that these errors resulted in the erroneous conclusion that the objective seriousness of count 1 was slightly above the mid range of seriousness. It was said that this finding was not open to the sentencing judge because of the applicant's mental illness at the time of the offence.

123 The applicant further submitted that her Honour's findings with respect to the commencement of the applicant's mental illness are inconsistent with the evidence contained in the psychiatrist's reports, causing an error which clouded the judge's entire opinion of the significance of the applicant's mental illness.

124 The Crown submitted that there was no "Muldrock error". The Crown further submitted that although decided in accordance with Way, her Honour's approach was entirely consistent with the instinctive synthesis approach whereby the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and makes a value to judgment as to what is an appropriate sentence given all the factors in the case: Crown submissions page 11 [35]. It was argued that her Honour was fully cognisant of the centrality of the question of Mr. Devaney's mental illness. It was put:

It cannot be said that her Honour was not entirely cognisant of the fact that she was involved in the sentencing exercise involving an offender who was acutely psychiatrically ill at the time he committed the offences (18.15T).

Her Honour's findings about the applicant's mental illness

125 At ROS 16, her Honour said the following:

Mental health issues are dealt with by reports from three psychiatrists, the issues of the offender's mental health are relevant, both to an assessment of moral culpability and to future dangerousness. There is consensus that when the offence was committed, the offender was in a state of psychosis. The cause of that psychosis has now been diagnosed as Paranoid Schizophrenia. This fact reduces the moral culpability of the offender for the offence and can effect the importance of general deterrence as a sentencing consideration [emphasis added].

126 The relevant psychiatric evidence consisted of seven reports; two from Dr Allnut, two from Dr Wilcox and three from Dr Westmore. The trial judge considered these reports and, at ROS 18, said the following:

Dr Wilcox and Dr Allnut are both of the opinion that the offender's mental illness resulted in a thought content with paranoid themes directly incorporating [the complainant]. Dr Wilcox is of the view that as a result of his mental illness his capacity to control himself was severely impaired. This is an opinion she confirmed in her oral evidence in court. She is of the view that his then undiagnosed mental illness was a major contributor to the offence.

Dr Westmore has observed that notwithstanding his view that the offender was suffering from a substantial impairment his actions after the shooting in attempting to avoid detection are evidence of his awareness of the nature of the actions and an awareness that his actions were wrong.

127 At ROS 24-25, the trial judge made the following remarks:

The offending behaviour must however be seen in the context of [the appellants] recently diagnosed mental illness, paranoid schizophrenia. An observation of the COPS entries in mid 2007 and the reports from each of the psychiatrists confirm that he was becoming ill for around about six months before the offence was committed and possibly longer.

128 Her Honour made several remarks about the commencement of the applicant's mental illness. For example, at ROS 8 her Honour said the following:

His [the appellant's] contact [in 2007], when there is no evidence he was suffering from his now diagnosed [mental] illness, is a worrying feature of this case [emphasis added].

129 The following further remarks are relevant to this question:

The offender's prior criminal record contains entries for two armed robbery offences in 1995, together with offences relating to possession of firearms, discharge of firearms, and then disguised with intent. It is of concern that, notwithstanding there is no suggestion he was suffering from a mental illness when those offences were committed, he was committing crimes of violence with a firearm. [ROS p10].

In March 2003, he was convicted of two counts of assault occasioning actual bodily harm, and one of carrying a knife. It is observed that these offences were committed before any suggestion of a psychosis or mental illness being relevant to offending. [ROS p11].

130 It is clear to me that the learned sentencing judge appreciated that the salient questions concerning Mr. Devaney's mental illness were complex. She fully appreciated, and I think took the view, that Mr. Devaney's mental illness provided only a partial explanation for his offending on the 8th of May 2008. Other relevant matters, including his antecedent criminal history, were relevant to show:

His current offending is far from an aberration, it is simply a more serious form of violent or intimidating behaviour as he has exhibited in the past [ROS p39]

But her Honour went on to say:

The offending behaviour must however be seen in the context of his recently diagnosed mental illness, paranoid schizophrenia.

131 Her Honour pointed out that on her view of the evidence before her, the degree of pre-meditation and planning of the offence was not a manifestation of the underlying disease. At ROS 24 her Honour said:

Dr. Wilcox explained that even though the offender was suffering from a psychosis at the time, planning is not thereby excluded.

132 I understand this to be a finding that her Honour considered that the degree of careful planning involved in this particular offence was not part and parcel of Mr. Devaney's illness. As her Honour pointed out, Dr. Wilcox expressed the following view in her report of 4th September 2010 (page 2):

I note that an individual may suffer from a mental illness and still be able to devise and carry out plans in a relatively organised manner. However when the individual is suffering from prominent delusions (false beliefs) their judgment is impaired and the basis for the planning is irrational and distorted. I have seen individuals who are extremely paranoid yet appear totally calm.

133 The following evidence appears at 21.20 - 30T in the proceedings on sentence:

Q. So you say that he found out this information about the place where Ms. Graham worked and the times that she worked there before he was at the height of his paranoid schizophrenia?

A. No, I think... he was unwell for quite some time but he was - you can still plan things and do things while you're paranoid and suspicious, the two things aren't exclusive with each other.

Q. Yes, but finding out when she was going to be there, it has no purpose unless he planned to go there and confront her for some reason does it?

A. No, that's right, yes so he was part of - he was planning to do it and he got the information but then he could have got the information and not done anything with the information. [Emphasis added].

Dr. Wilcox made it clear that, in her opinion, Mr. Devaney acted on his plan because of his illness.

134 But on the basis of this material, in my judgment, the learned sentencing judge was entitled to find that the mental illness was not the sole cause of Mr. Devaney's offending on this occasion, whether or not others might have taken a different view of the same evidence.

135 The learned sentencing judge found that the condition of paranoid schizophrenia manifested itself in or about mid-2007 (ROS 24 - 25; ROS 28). Complaint is made of these findings and in particular the finding at ROS 8 dealing with Mr. Devaney's attempt to contact Ms. Graham on 25th July 2007:

His contact, when there is no evidence that he was suffering from his now diagnosed mental illness, is a worrying feature of this case.

136 As Allsop P notes in his reasons, and as is discussed below, the mental illness of the offender may present a paradox in sentencing proceedings. One aspect of mental illness may tend towards a longer custodial sentence, another towards a shorter: Veen v. The Queen (No. 2) (1988) 164 CLR 465 at 466-7. To the extent to which a particular aspect of mental illness may favour the offender on a sentencing procedure, he or she carries the onus of proof to the civil standard: R. v. Storey [1998] 1 VR 359 at 369, approved by R. v. Olbrich (1999) 199 CLR 270 at 281 [24] - [27]. In the present case, if it could be shown that Mr. Devaney's disease commenced at an early point in time, that fact would be favourable to him because it would explain certain events such as his contact with Ms. Graham in 2007, more favourably than otherwise. In my judgment, he carried the relevant onus of proof.

137 Accordingly, it was not open to Mr. Devaney to raise a "no evidence" point of law concerning that finding: Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D. At the same time, it was not necessary for the argument to rise to that level. Mr. Devaney only had to establish that in this material respect her Honour mistook the facts.

138 Mr. Devaney did not give evidence at the proceedings on sentence. The available evidence consisted largely of the reports of the psychiatrists recording the histories provided by Mr. Devaney and expressing opinions in the light of the history received. Additionally, with relevance to this issue, amongst the references tendered as to character and remorse (Exhibit E), there was a letter to her Honour from Mr. Devaney's parents who stated that following an operation in respect of an industrial accident received on 6 June 2006:

Todd was very depressed and he spent most of his time on the lounge watching television and increasingly not taking care of himself. He was becoming increasingly anxious and suspected people were hacking into our computer and that the telephone was being bugged. We were very concerned about his behaviour and contacted various organisations including drug rehabilitation (we suspected we may have been on drugs), our doctor and the local medical health unit. We did this anonymously as we were aware that he would get very angry with us if we disclosed who we were.

This evidence did not place these events chronologically with precision, except to say they followed the surgery, which inferentially, occurred in 2006.

139 The printout of a COPS entry tendered before the learned sentencing judge recorded that Mr. Devaney had attended Penrith Police Station in July 2007 complaining that police were tapping his mobile phone (which they were not). Mr. Devaney apparently asserted that it started around the time of the Cronulla riots. Whilst one may accept, as her Honour obviously did, that Mr Devaney's belief was a paranoid manifestation of his underlying disease, one must question the timing of the onset of it. The court may take judicial notice that the Cronulla riots occurred on 11th December 2005. There is no real suggestion anywhere in the evidence of an onset of Mr. Devaney's illness quite as early as that. The earliest possible manifestation, based on the histories provided to the psychiatrists, is early 2006, before his accident, when he underwent a religious experience while visiting the Great Pyramid.

140 As the sentencing judge, her Honour was entitled to discount the observations of Mr. Devaney's parents. As lay-folk, the medical significance of their observations was likely to be worthy of little weight. They frankly acknowledged that their view that Mr. Devaney has been suffering from a mental illness for many years prior to his accident was based on hindsight. Moreover, such weight as their observations of Mr. Devaney following the 2006 industrial accident may otherwise bear is confounded by the circumstance that following that occurrence he developed severe depression for which he received treatment from a psychologist: Dr. Wilcox Exhibit "A" 15th June 2010. For what it is worth, there is no evidence that the psychologist suspected, let alone "diagnosed", a psychotic illness.

141 It is accurate to say that each of the psychiatrists, based on the history received from Mr. Devaney, expressed the view that his mental illness had developed over a period of years, rather than months, prior to May 2008. Dr. Allnut said approximately 4 to 5 years; Dr. Wilcox seems to date the onset of symptoms from 2006. Likewise Dr. Westmore (6th February 2009 page 7). Dr. Westmore read some typed pages composed by Mr. Devaney, according to Mr Devaney's own account, some time in 2006. Dr. Westmore considered that their content would suggest a disturbed mental state of unknown aetiology.

142 The learned sentencing judge said more than once that she was not prepared to act upon statements made by Mr. Devaney to psychiatrists. For example, at ROS 12 she said:

Any statements made to his psychiatrists are of a self-serving nature, not subject to scrutiny, and said in the knowledge that they would be used in court and in mitigation. The purpose of a psychiatrist interview is different to the fact-finding exercise required to be undertaken by a court.

143 The learned sentencing judge closely analysed the content of the account given by Mr. Devaney to the psychiatrists. She did so in a very systematic way when dealing with each of the many factors that she considered relevant to her decision. At ROS 20, her Honour said:

He appears to be attempting to manipulate the interviews with the psychiatrists to have potentially favourable information before the Court while avoiding difficult issues such as his past conduct towards Miss Graham.

And at ROS 26 - 7 she expressed the view that very considerable caution should be exercised in relying on such statements when an offender does not give any evidence and the matters are in dispute. In my judgment, this approach is unexceptionable and her Honour was entitled to look for, and rely on, objectively demonstrable facts rather than Mr. Devaney's hearsay account as recorded in the psychiatric reports.

144 I appreciate the force of the President's view that the expertise of psychiatrists extends to assessment of the significance of a patient's history for the purpose of diagnosis (see [88] hereof). However it seems to me a question may still arise about the reliability of the patient's account without calling into question the expert's reliability or competence. Psychiatrists are not experts in the acceptability of lay evidence: HG v The Queen (1999) 197 CLR 414 at 427 [42]-[44].

145 For my part, I am not persuaded that her Honour's approach to the facts portrays any process error, or otherwise has been shown to be wrong. In my view, her Honour's analysis of the factual matters was cogent and the conclusions she reached were more than open to her. Her Honour gave appropriate weight to the evidence relating to the applicant's acute psychotic disorder at the time of the offences and did not mistake the primary facts relating to it.

Did her Honour fail to correctly apply the principles relevant to sentencing mentally ill offenders to the facts of the present case?

146 After considering the evidence regarding the applicant's mental illness, her Honour went on to outline the principles relevant to the impact of mental health issues on sentencing. In this regard, reference was made to a series of cases said to demonstrate the competing considerations the court must take into account (ROS 29).

147 Her Honour made reference to the following principles from R v Hemsley [2004] NSWCCA 228 per Sperling J at [33]-[36]:

[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced

[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration

[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person

[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence [citations omitted].

148 That passage, of course, has been very frequently applied in this court. Some examples only will suffice: Director of Public Prosecutions (Cth) v. De La Rosa (2010) 79 NSWLR 1 at 43 [177] per McClellan CJ at CL; Reberger v R [2011] NSWCCA 132 at [54] - [55] per Campbell JA; Beldon v. R. [2012] NSWCCA 194 per Johnson J; R. v. Bugmy [2012] NSWCCA 223 per Hoeben JA at [44].

149 The sentencing judge also noted the case of Courtney v R [2007] NSWCCA 195 in which Howie J at [83] said:

The fact that an offender is mentally ill does not mean that the sentence imposed must be less than that imposed upon a person who commits the same criminal act without any abnormality of mind. It may do so for all the reasons given in R v Israil [2002] NSWCCA 225. In particular the fact that the offender is suffering from a mental illness may reduce the person's culpability. But even that fact does not necessarily result in a lesser sentence. Mr Veen's culpability for the second killing was diminished by reason of his mental illness but it did not mean that the maximum penalty for the offence was not appropriate: Veen v R (No 2) (1988) 164 CLR 465. This was because the protection of the public required that he be sentenced to a period of imprisonment by way of preventative detention because of his danger to society. Provided that the sentence is commensurate with the gravity of the offence viewed objectively, there is no error of principle in imposing a sentence aimed at protecting the community from the offender's recidivism by removing him or her from society.

150 Her Honour also made reference to R v Manna [1999] NSWCCA 314, in which Hidden J at [26] said the following:

His [mental] condition should be taken into account but, in the circumstances, it cannot afford him any marked measure of leniency. On the other hand, of course, it must not lead to the imposition of a sentence more severe than that which would have been appropriate if he were not suffering from any mental abnormality

151 The last sentence was a reference to the principle expressed by the High Court of Australia in Veen v The Queen (No 2). In that case, Mason CJ, Brennan, Dawson and Toohey JJ said the following at 476-77:

...sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality

152 There can be no doubt that her Honour correctly identified the relevant principles. The applicant's complaint is she failed to apply them. I would reject this argument. At ROS 16 her Honour said:

Mental health issues are dealt with by reports from three psychiatrists, the issues of the offender's mental health are relevant, both to an assessment of moral culpability and to future dangerousness. There is a consensus that when the offence was committed the offender was in a state of psychosis. The cause of that psychosis has now been diagnosed as Paranoid Schizophrenia. This fact reduces the moral culpability of the offender for the offence and can effect the importance of general deterrence as a sentencing consideration. Each case depends on it's individual circumstances as to the ameliorating effect of a mental illness may have (sic) on moral culpability, may have on prospects of rehabilitation and the future danger to the community.

153 In the end her Honour considered that the questions of Mr Devaney's prospects of rehabilitation, and future danger to the community, were those most difficult of resolution. With respect, in my judgment, this was the correct approach. The question of the protection of society is the subject of Ground 4 to which I will now turn.

Ground 4: Her Honour erred in making findings on the respondent's future dangerousness.

154 As the well-known passage from Veen (No. 2) set out above demonstrates, subject to the principle of proportionality, that an offender's mental illness may make him a danger to society when he is at large is a factor tending towards a longer custodial sentence. As the Justices in the majority pointed out, to the extent to which mental illness may provide more than one guidepost to the appropriate sentence in a given case, the guideposts often point in different directions. And as Gleeson CJ pointed out in R. v. Engert (1995) 84 A Crim R 67 at 68 ... a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

155 At 68 his Honour continued:

... [No] automatic consequences follow from the presence or absence of particular factual circumstances.

And at 71 his Honour re-emphasised the point in this way:

... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, 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 of the need to protect the public.

156 In R. v. Windle [2012] NSWCCA 222 Basten JA closely analysed the judgments in Veen (No. 2) in the context of the need to give effect to the appropriate protection of society as a factor in sentencing at [43] - [50] and at [47]. One must accept, as I think his Honour points out, that except in a case like Veen (No. 2) where an indeterminate, life sentence was appropriate, this factor can be problematic in practice given that the principle of proportionality will operate as a brake on the ability of the court to protect the public absolutely from the dangerously mentally ill. But it is well to bear in mind that for so long as the dangerously mentally ill offender is incarcerated the community is protected from him. And this is a legitimate purpose of sentencing: s.3A(c) Sentencing Act. At [57] his Honour said:

The offender will have to be released sooner or later. The appropriate mechanism for protecting society cannot be found in the criminal law; the need for protection arises from mental illness and it is through mental health legislation that such protection as may be available must be sought.

His Honour made these observations in the context of his factual determination. But in principle, as the unanimous court said in Muldrock at 141 [61]:

The notion that a sentence might be reduced to take into account the existence of a regime outside the criminal law providing for the detention of sex offenders may be thought to have little to commend it as a matter of principle.

In the same passage, their Honours went on to say:

A court may not refrain from imposing a sentence that, within the limits of proportionality, serves to protect the community in a case that calls for it because at some future time the offender may be made the subject of an order under the Sex Offenders Act.

In my judgment this statement applies by parity of reasoning to mental health legislation.

157 Accordingly, in the present case, the real question for the learned sentencing judge was whether this was a case which called for a sentence that served to protect the community, and this, intrinsically, was a question of fact.

158 In considering the applicant's future dangerousness, the sentencing judge fully considered the psychiatric evidence before her.

159 At ROS 19, her Honour quoted the following opinion of Dr Westmore, dated 12 October 2010:

Mr Devaney appears to fall into the small group of mentally ill people who represent an increased risk of dangerousness when compared to the general population of mentally ill people and the general community at large.

This subgroup is usually comprised of younger males who suffer paranoid illness who have in the past demonstrated aggressive behaviour. They are at their greatest risk when acutely ill suffering auditory perceptual disturbances and paranoid thoughts. For his long-term safety and for the safety of others, it would be prudent for this man to be managed as a forensic patient in a longer term (sic).

If on his release he is not supported sufficiently by psychiatric services, his risks to himself in terms of his potential behaviour to others will be significant.

160 Her Honour went on at ROS 21 to quote the following opinion from the report of Dr Allnut dated 11th March 2011 (part of Exhibit 3)

...[w]hen he is unwell his risk is increased... However, even taking into account the moderating effects of age, remission of his psychotic symptoms due to treatment, his risk is higher than the average population. The risk depends on whether he remains adherent to his psychiatric treatment and on follow up in the community... It is promising that he is taking his medication while in prison, but this remains untested in the community.

This opinion was obviously influential in the observations her Honour made at ROS 11 as follows:

His history of prior personal violence offending is a feature of aggravation and will be taken into account in assessing future danger to the community. The context in which it will be taken into account will be as a predictor of future conduct and the effectiveness of supervised orders in the past. It will not be used to punish the offender again for offences committed in the past. The record, however, highlights what appears to be a character trait of aggression, intimidation and resort to weapons [ROS 11].

161 Dr. Wilcox also referred to this topic in her oral evidence. At 16T.15 - 35 she gave the following evidence:

Q. So providing he continues with his medication and doesn't engage in drug abuse he should be symptom free is that correct?

A. Look you can never sort of say he will always be symptom free, but so long as he is maintained on his medication and the medication is, he hasn't had enough other stressors, because stressors can, even on medication people can become unwell, so not only does he need to be on medication, he needs to be reviewed and monitored and he needs to abstain from all illicit substances.

Q. And once, and if we assume that these symptoms are in control by him doing those things, is it your opinion that his risk of committing similar offences in respect to similar psychotic symptoms is low?

A. Yes I would hope that he won't become psychotic again, you know, because he has an illness which fortunately does respond to medication you know, we have lots of patients who don't respond as well as he does and he does respond well which is a good prognostic sign, you know his medication works for him, it does keep his symptoms at bay so long as he takes the medication ... the symptoms you know will be much less likely to occur.

Then at 30.4 - 31.30T, the following evidence appears:

Q. ... would you agree, doctor, that even on medication this prisoner's risk of dangerousness to the community including Ms. Graham has to be greater than average or the base line?

A. Well... there is a past history of aggression towards to Ms. Graham. In the past the factors that contributed was his substance use, his problems with anger related to his substance abuse and probably towards the end of their relationship he may have even been starting to become unwell. But I think that the risk is reduced with medication and as I said I would believe that he is a different person now, he's an older more mature person and hopefully he has acquired some awareness of the folly of his prior actions.

...

Her Honour:

Q. I am not sure that you have addressed the question though Doctor.

A. Okay, just remind me what was the question?

Q. The question was, do you agree his potential danger is higher than the base?

A. I would agree that ---

Q. You've addressed a whole lot of issues but is it or isn't it?

A. You would have to say it is higher than the base, yes.

Cuneen

Q. Yes, because he's got this interest in guns?

A. Yes.

Q. He's prone to be psychotic when he's on drugs?

A. Yes.

Q. He's got a bad record for violence?

A. Yes.

Q. In fact, he shot someone?

A. Yes, there are all these risk factors, but as I said before a lot of those risk factors have been decreased and can be managed so we accept that he has got a lot of risk factors but we also accept that we can manage a vast majority of those risk factors, yes.

162 A further factor which concerned her Honour (ROS 22) was that Mr. Devaney was at one stage, whilst in prison, able to convince authorities to reduce and ultimately stop his medication. This finding was amply justified by the oral evidence given by Dr. Wilcox. At the conclusion of cross-examination by counsel, her Honour asked some questions in clarification of this issue (31.45 - 32.45T).

Q. The last time he was put in the prison population, I understand your evidence being that he complained to doctors about a lot of the side effects of the medication and was successful in convincing them that his medication could be reduced and then ceased?

A. That's correct.

Q. Doesn't that present a risk problem?

A. He is on a different medication now.

...

Q. Right, but when he was on the Risperidone was that managing his paranoia?

A. It was managing his paranoia but it was causing him to feel sedated and tired.

Q. So why wouldn't the doctors simply on his complaint reduce the medication and not perhaps alter the medication or put him back in hospital and stabilised him on a different medication? (sic)

A. I wonder that too.

...

Q. How long did it take him to convince doctors that the Risperidone should be reduced to nil?

A. I think it was over a number of months, yes, it was over a number of months, yes... I think they just phased it out and then no one followed up what was happening --

Q. No one followed it up?

A. Yes, no one followed it up.

Q. Even in a prison population if he's on an injectable medication it was possible for him just not to turn up?

A. It was, yes.

163 As her Honour observed at ROS 23 -24 Exhibit 4, records of the Department of Corrective Services indicated relevant breaches of discipline even when Mr Devaney was said to be compliant with his medication. In November 2009, he was reported and punished for intimidation and in May 2010 for participating in, and inciting, a riot. This was relevant evidence. Her Honour was entitled to take it into account in deciding the question of his future dangerousness, if any.

164 Her Honour directed herself by reference to R v Harrison (1997) 93 A Crim R 314, in which Hunt CJ at CL, Newman and Ireland JJ emphasised at page 319 that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown. That passage was applied In R v Robinson [2002] NSWCCA 359, with Giles JA, Dunford and James JJ adding at [49] that the likelihood must be a real likelihood, but certainty of re-offending can never be found. In my view, this was the correct approach.

165 Her Honour carefully reviewed the evidence, and relevant considerations, before concluding at ROS 25:

For these reasons I assess his risk of re-offending and his risk to the community as being high. While he is in a secure setting well managed by medication and not challenged he is at his best. If the risk factors referred to by the psychiatrists who have assessed him come to fruition then his risk of future danger to the community is high.

In my judgment, this finding was well open to her Honour on the evidence to which I have referred and for the reasons that she expressed. The question to be decided by the learned sentencing judge involved the complex interplay of a number of competing considerations. That others may have assessed them differently is not to the point.

166 The applicant submitted that her Honour's findings with respect to future dangerousness were based upon findings of fact not open to her on the evidence. The applicant put his submission in the following terms:

First, it was not open for her Honour to find at [52] that the decision by medical practitioners to reduce his medication was made for anything other than for good clinical reason (the first finding). Secondly, it was not open to her Honour to find at [52] that the decision to 'release [the applicant] into the general prison population' in November 2008 was made as a result of manipulation by the applicant because he knew that the supervision of his medication would be less strict (the second finding). Thirdly, it was not open for her Honour to find [at 50, 53] that there was no evidence at the time of sentence that the applicant accepted the need to be medicated for the foreseeable future (the third finding). Fourthly, it was not open for her Honour to find [at 53] that at the time of sentence, he did not accept his medical condition (the fourth finding). Fifthly, it was not open for her Honour to find that even when he was medicated appropriately his behaviour was not calm and compliant (the fifth finding).

For the reasons I have expressed, I reject this submission. I might add that the verbal formulation adopted - that it was not open for her Honour to make certain findings - to some extent misconceives the nature of the task facing an applicant on a sentence appeal. Moreover, although the question of whether there was a real likelihood of a risk of re-offending was a matter upon which the Crown bore the onus, it was not necessary for the Crown to prove every relevant primary fact to the criminal standard. But importantly, it was for Mr. Devaney to prove on the balance of probabilities that his former dangerousness had been ameliorated by successful treatment. There was evidence to that effect, which her Honour did weigh and assess with the competing evidence in the process of arriving at her conclusion - a conclusion which in my judgment was well open to her.

167 In my judgment, the Crown correctly submitted that these findings of primary fact may only be interfered with if it is demonstrated that there is no evidence to support a particular finding on which the Crown bore the onus, or the evidence is all one way, or the judge has misdirected him or herself: R v O'Donoghue (1968) 34 A Crim R 397 per Hunt J (as his Honour then was); R v Warfield (1994) 34 NSWLR 200 at 209. Mr. Devaney has failed in this endeavour.

168 The Crown submitted that the onus of establishing future dangerousness as a mitigating factor rested with the applicant on the balance of probabilities (The Queen v Olbrich (1999) 199 CLR 270) and that in the absence of direct evidence from the applicant the issue with respect to this ground is the weight to be afforded to the evidence presented. I reject this part of the Crown submission. Certainly, as I have already observed, Mr. Devaney bore the onus of establishing facts arising out of his mental illness which were favourable to him to the extent to which they were tendered to ameliorate the severity of the sentence that might otherwise be called for. But in my view, her Honour correctly found at ROS 16 that the facts that increase the assessment of level of danger [to the community] are to be proven to the criminal standard and by the prosecution.

Ground 5: Her Honour erred in failing to give any or sufficient weight to the evidence of remorse.

169 Her Honour carefully considered the question of remorse at ROS 26-27. Mr. Devaney complains in particular of the following statement at the end of that passage:

His psychiatrist gave the opinion that he was well enough to plead and well enough to be in the general prison population, he was obviously then well enough to give evidence but chose not to do so. That is his right, however he cannot have the benefit of a finding of credibility in relation to the information he gave to psychiatrists in those circumstances. [Emphasis in the applicant's written submissions].

To emphasise the clause underlined is to take it out of context. Her Honour was not stating a proposition of law. Rather, she was expressing a conclusion of fact that she made in those circumstances, having regard to the reasons that she had already given by way of analysis of the issue and the evidence. Those matters were also dealt with at ROS 15 and 16 to 17. In these passages, her Honour gave cogent reasons for not accepting the statements of remorse recorded by the psychiatrists at face value. Her reasons included that Mr Devaney in his account to Dr. Westmore maintained that Ms. Graham was the cause of his difficulties, and blamed the victim for most of what had gone wrong. Statements of this nature tended to undermine the bare expressions of remorse.

170 Acceptance by the psychiatrists of the genuineness of the remorse did not advance the applicant's case. That topic was not a matter for expert evidence: HG at 427 [41]. As her Honour acknowledged at ROS 27, a psychiatrist may be able to state as a matter of expertise that paranoid schizophrenia does not militate against Mr. Devaney telling the truth. But the point is that the question of whether he was telling the truth when he expressed remorse is entirely a question of fact for the trial judge, and the reasons expressed by her Honour for not accepting his out of court expressions of remorse were in my opinion open.

171 Counsel were in agreement about the relevant law. Section 21A(3) of the Sentencing Act provides that the mitigating factors to be taken into account in determining the appropriate sentence includes:

(1) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

172 This Court has held that, on its proper construction, the statutory precondition to reliance on remorse as a mitigating factor is the requirement under s21A(3) for an offender to provide evidence that he or she has accepted responsibility for his or her actions, has acknowledged any injury, loss or damage caused by his or her actions, and of any reparation for such injury, loss or damage, or of any of those matters: Butters v R [2010] NSWCCA 1 per Fullerton J at [17], (with whom McClellan CJ at CL and McCallum J agreed). This requirement does not equate with a requirement that the offender give evidence personally, either of remorse generally or of the matters set out in the section, before remorse can be taken into account in the calculation of sentence: Butters at [16] - [17].

173 Fullerton J in Butters went on to say the following at [18]:

...his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 69 and TS v R [2007] NSWCCA 194 at [30].

174 And in Pfizner v R [2010] NSWCCA 314, McClellan CJ at CL said at [33]:

In Butters the court made plain that s 21A(3)(1) of the Crime (Sentencing Procedure) Act does not require an offender to give evidence before a finding of remorse is available. However, it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made. It is one matter for an offender to express remorse to a psychologist and a psychiatrist or even when interviewed by the police and quite another matter to give sworn evidence and be cross-examined about the issue. When interviewed by the police or by a psychiatrist or psychologist it is unlikely that the offender's response will be challenged. It may be otherwise when the offender gives evidence. Furthermore, an issue of remorse may be susceptible to evaluation by consideration of an offender's demeanour, an opportunity which will be denied the sentencing judge unless the offender gives evidence.

Her Honour's decision on this factor was in my view open to her.

Ground 6: The total sentence and the standard non-parole period for count 1 was manifestly excessive

175 Although formulated as a "manifest excess" ground, the argument advanced on behalf of Mr. Devaney raised specified errors of principle. This is a curiosity: Wong at 605 [58]. The errors specified included an asserted Muldrock error and, by reference to Muldrock, a reiteration of factors relevant to grounds 1 - 4.

176 The applicant submitted that her Honour, in a manner contrary to Muldrock, impermissibly used the standard non-parole period either as a starting point for the determination of an appropriate sentence, or by giving it 'determinative significance' in fixing the sentence: submissions at 82 and 83.

177 The applicant further submitted that the moral culpability of the applicant, the significance of general deterrence, the need to make the applicant accountable for his actions and the denunciatory purposes of sentencing are all of much less significance in this case (submissions 83). In support of this submission, Muldrock at [53] and [54] is relied upon:

[53] ...One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this [R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160]:

"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

In the same case, Lush J explained the reason for the principle in this way [at 160-161]:

"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."

[54] The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

178 With respect to the second of these arguments, the Crown submitted that the degree to which a sentencing judge is obliged to moderate the significance of general deterrence in any case is essentially a matter of discretion, taking into account all the relevant factors on sentence when making a value judgment as to what is considered to be an appropriate sentence in all of the circumstances. Reference is made to Veen v The Queen (No. 2) at 476-477.

179 The Crown also relies on R v Wright (1997) 93 A Crim R 48 at [51] as authority for the proposition that where a mentally ill offender acts with knowledge of what he or she is doing and with knowledge of the gravity of the actions, the moderation by reason of general deterrence need not be great. The gravity of the criminal conduct is also an important consideration: R v Wiskich [2000] SASC 64 at [62]; cited with approval in R v Z [2006] NSWCCA 342. It was further submitted that by his guilty plea the applicant has accepted criminal responsibility for intent to kill the victim, and acted with knowledge of what was being done and with knowledge of the gravity of his criminal conduct. On this basis the Crown submitted that, having regard to the criminality involved, and notwithstanding his mental health, the sentencing judge was entitled to determine that the overlapping purposes of sentencing required a sentence in accordance with that which was given.

180 It will be apparent that many of these arguments reiterate what was ventilated in relation to grounds 3 and 4. To that extent I am not satisfied that this ground is made out for the reasons I have already expressed.

181 The Crown submitted that the sentence imposed on count 1 was wholly warranted in law on the given facts, and that when regard is had to the two legislative guideposts of the maximum sentence of 25 years, on the one hand, and the standard non-parole period of 10 years, on the other, a non-parole period of 10 years 1 month with an additional term of three years is not unreasonable or plainly unjust.

182 As I have already stated, her Honour passed sentence on Mr. Devaney at a time when Way held sway. But, as I have said already, it does not follow that the decision is affected by Muldrock error. It is more than evident from her Honour's careful approach that she did not commence by asking whether there are reasons for imposing the standard non-parole period nor did the learned sentencing judge proceed to an assessment of whether the offence is within the mid range of objective seriousness and thereafter make additions, or subtractions, according to aggravating, or mitigating, factors found. Rather in my judgment, her Honour, consistently with Muldrock at 131 [26], adopted an approach to sentencing which accords with the judgment of McHugh J in Markarian.

183 Her Honour identified all of the factors relevant to the sentence, discussed their significance, and made a value judgment as to the appropriate sentence given all the factors of the case. On a careful and fair reading of her Honour's remarks as a whole, there is no hint or flavour of any adoption of any impermissible two-stage approach. Among the factors considered and fully discussed by her Honour were the following:

(a) Injuries to, and consequences for, the victim;

(b) The aspect of domestic violence and other circumstances of the offence;

(c) Premeditation as a circumstance of the offence;

(d) Commission of the offence causing potential risk to others;

(b) The history of prior offences in response to supervision in the past;

(c) An argument (inconsistent with the plea) that Mr. Devaney desisted in his intent to murder;

(d) Mr. Devaney's personal and subjective circumstances and in particular the significance of his mental illness;

(e) Future danger to the community or any specific person;

(f) Remorse and contrition.

Of all these factors, her Honour fully appreciated the centrality of the issue of mental illness in the particular circumstances of this case.

184 In my judgment, her Honour did identify fully the facts, matters and circumstances which the judge conclude[d] [bore] upon the judgment that [her Honour] reached about the appropriate sentence to be imposed: Muldrock at 132 [29]. I would regard her Honour's conclusion at ROS 30 that the shooting with intent to murder was an offence which was slightly above mid-range seriousness as a product of instinctive synthesis. Bearing in mind that:

This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence, like the one under discussion, balances many different and conflicting features (Wong at 611 [75]).

185 Moreover, I accept the force of the Crown argument that the degree to which mental illness will bear upon the significance of each relevant conflicting factor affected by it is a matter of weight for the trial judge. Questions of weight are a barren field for a party aggrieved by a sentence. In my judgment, the sentence is neither unreasonable nor plainly unjust. I respectfully disagree with the President that the sentence is manifestly excessive.

Ground 7: Her Honour erred in failing to find special circumstances and impose a non-parole period less than three-quarters of the total sentence.

186 As Mr. Devaney acknowledges in submissions, the learned sentencing judge found that the need for accumulation was a special circumstance. Having regard to it, her Honour adjusted the statutory ratio fixed by s.44(2) Sentencing Act downwards, according to my reckoning, by a period of five months. Mr. Devaney describes this adjustment as very minor (AWS [89]). This may be so. It is also argued that his need for an extended period of conditional release subject to supervision on parole to ensure compliance with necessary treatment regimes was a consideration that cried out for a finding of special circumstances further reducing the s44(2) ratio (AWS [91]).

187 In support of this argument, reference was made to Phelan v R (1993) 66 A Crim R 446 at 449-450. The applicant submitted that her Honour failed to consider the evidence of Dr Westmore and Dr Allnut and the implications of that evidence, which are said to be that the critical factor in ensuring that the applicant no longer poses a danger to the community on release will be his supervision on parole and his adherence to any medication regime or any other safety provisions that will be considered by experts who will provide reports closer to his release.

188 The Crown submitted that the decision as to the finding of special circumstances is essentially a matter within the trial judge's discretion: R v Cramp [2004] NSWCCA 264 at [29] - [37] per Spigelman CJ.

189 In R. v. Simpson (2001) 53 NSWLR 704 at 719 - 20 [73] Spigelman CJ (with whom the other members of the five bench court relevantly agreed) said:

There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequately or manifestly excessive.

190 Findings relating to special circumstances are questions of discretion par excellence. It is difficult for a court of criminal appeal to find appellable error justifying an appeal, let alone re-exercise the sentencing discretion, on that ground alone.

191 In R. v. Sutton [2004] NSWCCA 225 at [30] Howie J said:

His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in jail. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for "extended supervision and counselling". I believe that the non-parole period should be four years.

It should be pointed out that those observations were made after his Honour had found appellable error on other grounds and had proceeded to re-exercise the sentencing discretion. The comments in no way constitute any statement of principle, and do not assist Mr. Devaney in the present case.

192 Her Honour did not find that the matter constituted special circumstances in the present case. The evidence supporting such a need related Mr. Devaney's mental illness. But the mental illness itself, and its consequences and ramifications, was taken into account in a variety of different ways as her Honour considered the various factors relevant to the determination of the appropriate sentence. To have taken the matter into account again at this point may well have been to double count it's effect. Leaving that question to one side, I am of the view that her discretion did not miscarry by reason of a failure to make a finding of special circumstances on account of a need for extended supervision on release. By then he will have been under supervision and treatment for some years. The additional term fixed, in any event, is not a short period of supervision. Accordingly, I would reject ground 7.

Additional Ground

193 During the course of oral argument, the Court raised with counsel the question of whether, for sentencing purposes, there was an analogy between the circumstances of Mr. Devaney's offence and an offence of murder reduced to manslaughter by reason of a substantial impairment by abnormality of mind within the meaning of s.23A Crimes Act. After all, at least at one level, had Mr. Devaney's murderous intent been fully fulfilled, on the evidence I have recounted, that question would have been a live issue had Mr. Devaney stood trial for murder. If the analogy is a true one, then the pattern of sentencing, if any, and subject to legal constraints, may have been a consideration relevant to Mr. Devaney's manifest excess ground.

194 The legal constraints to which I have referred include some of the principles discussed in Wong (at 606 [59]) and Hili v. The Queen; Jones v. The Queen (2010) 242 CLR 520. Both relate to sentencing principles for federal offences, but the relevant principle is equally applicable to State law, subject to statute. In Wong Gaudron, Gummow and Hayne JJ said:

Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unified principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the Judge who is about to pass sentence on the offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. (Emphasis in original)

195 One may accept, of course, that the concept of consistency should be included amongst the list of established principles to which the exercise of the sentencing discretion is subject: cf Muldrock at 128 [18]; Wong at 591 [6].

196 As the plurality of six justices of the High Court of Australia pointed out in Hili, consistency is not demonstrated by numerical equivalence. The requirement relates to consistency in the application of relevant legal principle: Hili at 535 [48] - [49]. Although it is legitimate for sentencing judges to have regard to what has been done in other cases (Hili 536 [53]) regard to the outcome of comparable cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal (Wong at 606 [59]).

197 It is important to emphasise that the plurality in Hili specifically approved of the following statement of principle by Simpson J in De La Rosa at 70 [303] - 71 [305] (Hili at 537 [54]).

A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts

But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong v The Queen (at [59]).

In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character andantecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character. (Emphasis added).

198 Given the provisions of s.8 Judicial Officers Act 1986 (NSW), it needs to be borne in mind, as I have said, that Wong, Hili and De La Rosa involve expositions of Federal law. The information and reports disseminated by the Judicial Commission in relation to sentencing must be regarded as relevant considerations to be taken into account in the interests of consistency. However, the statements which I have quoted may be taken to extend beyond Federal jurisdiction's curtilage. They represent a statement of principle derived from the general law in the Federal context.

199 As the plurality pointed out in Hili at 539 [60], what reveals manifest excess, or inadequacy, of sentence is a consideration of all the matters that are relevant to fixing the sentence by the appellate court. The detection of manifest error is not fundamentally intuitive.

200 In compliance with the direction made by the Court, the parties lodged with the Registry an additional submission concerning this ground. As it transpires, the statistics maintained by the Judicial Commission do not separately compile and collate sentences in cases to which s.23A Crimes Act applied, nor does the Director of Public Prosecutions. The Public Defender's Office does maintain a record on its website, a printout of which was provided to the Court together with similar information in regard to three additional cases provided by the DPP. In total, 47 cases were provided between 1999 and 2011. The schedule also records that s.23A was amended with effect from 3rd April 1998 to replace the former provision that dealt with the partial defence of diminished responsibility.

201 Mr. Devaney argued that the material provided was relevant because it would create an anomaly if the applicant's sentence was not proportionate to the sentence that might have been expected had the victim died and the applicant faced a sentence for an offence of manslaughter [reduced from murder on the basis of substantial impairment]. It is argued that such proportionality calls for a significantly lower sentence in the present case.

202 The Crown argued that any attempt at comparison is unproductive and contrary to principle. That approach would require the Court to speculate about what a jury might have found about the question of whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: s.23A(1)(b) Crimes Act. I would accept Mr. Devaney's argument that this question is a matter which the sentencing court was qualified to decide had the question arisen for it's determination.

203 This highlights a difficulty. Because the question was raised by the Court in the course of the hearing of the application for leave to appeal, the question was not agitated below, although some evidence relevant to it was led in the form of psychiatric evidence, but the Judge was not called upon to consider the matter.

204 Given the principles established in relation to the proper use of comparative sentences, in my judgment, it is not appropriate to seek to identify any "tariff" from the raw material provided, much less to undertake the exercise of individually examining all the circumstances of each of the 47 cases involved in an attempt to deduce from a close examination of all the factors considered relevant to the sentence actually passed, principles which may be applied to achieve a sentence in the present case reasonably consistent with all of the sentences in the other 47 cases. Because of the limited utility of information of the type under consideration, in my judgment the relevant principle does not require the Court to explore each of these cases in detail.

205 The results provided by the parties range from a suspended term of imprisonment of two years (R. v. Mathers [2011] NSWSC 339) to a term of imprisonment of fourteen years with a non-parole period of eight years (R. v. Heatley [2006] NSWSC 1199). In Heatley the manslaughter sentence was ordered to be served cumulatively with a four year fixed term for an unrelated armed robbery. The total effective term of imprisonment was eighteen years with a non-parole period of twelve years.

206 But, as Simpson J pointed out in De La Rosa, the only true range is that fixed by parliament. And in the present case, that range is from zero to twenty-five years: s.29 Crimes Act. It should also be borne in mind that Veen (No. 2) involved an offence under the former s.23A. In the circumstances of that case, the appropriate sentence was an indeterminate, life term.

207 In Heatley the offender, in gaol on remand at the time of the homicide of a new cell-mate, had said:

I didn't want to kill him man, I didn't even know him. I'm not schizo but I do have a mental problem. I'm homicidal, I have told them that for days. Then they tell me this morning that they're putting this guy with me and I begged them not to but they said they were going to. I told them I'll kill him but they just said "you're full of shit". So about 11:30 they put us together and by 12:30 he's dead. I didn't want to do it, I know he's got a mum and dad and his mum is probably crying now. I know what it's like to lose someone. I lost my dad. (Heatley at [9]).

The offender also had said that the deceased had done nothing to provoke him, and that he had kicked the deceased to death. It is difficult to draw any comparison of principle useful to the present case.

208 Except to say that the results in these cases show that a very wide range of sentences have in fact been imposed in the past for crimes under s.23A Crimes Act, in my judgment, they do not provide any guidance given that the Court does not have the whole of the circumstances that have given rise to the sentence in each of those individual cases (De La Rosa at 70 [304]). I agree with what the President has written at [94].

209 As the Crown have argued it is also well to bear in mind that an offence under s.29 Crimes Act is one of specific intent. By his plea Mr. Devaney admitted that he had the specific intent to commit murder. That specific intention is one, but only one, of the significant factors in the case. The intent to kill rises above other aspects of mens rea sufficient to support a conviction for murder.

210 I express my appreciation to the parties for providing the additional information requested. But it does not cause me to alter the view I have formed in relation to Grounds 1 to 7.

211 I would have disposed of the appeal as follows:

(1) Leave to appeal granted.

(2) Appeal dismissed.

**********

Decision last updated: 21 December 2012