Austin v The State of Western Australia
[2023] WASCA 191
•12 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AUSTIN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 191
CORAM: BUSS P
MAZZA JA
VANDONGEN JA
HEARD: 23 OCTOBER & 7 NOVEMBER 2023
DELIVERED : 13 NOVEMBER 2023
PUBLISHED : 12 APRIL 2024
FILE NO/S: CACR 78 of 2023
BETWEEN: PIETER THEUNIS AUSTIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FORRESTER J
File Number : INS 47 of 2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count of attempted murder - Sentence of 5 years 6 months' imprisonment - Whether the sentencing judge denied the appellant procedural fairness in rejecting the opinion of a psychiatrist that the appellant's offending was causally related to his depression - Whether the sentence was manifestly excessive - Whether a different sentence should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 31
Criminal Code (WA), s 283(1)
Sentencing Act 1995 (WA), s 6, s 8, s 9AA, s 15
Result:
Application for an extension of time to appeal granted
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | F P Merenda & S R Pack |
| Respondent | : | R F Owen SC |
Solicitors:
| Appellant | : | Cooper Webb Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Baroudi v The Queen [2007] NSWCCA 48
Button v The Queen [2010] NSWCCA 264
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
DS v The Queen; DM v The Queen [2022] NSWCCA 156; (2022) 109 NSWLR 82
IEB v The State of Western Australia [2015] WASCA 207
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Phillips v The State of Western Australia [2011] WASCA 69
R v Engert (1995) 84 A Crim R 67
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Letteri (Unreported, NSWCCA, 18 March 1993)
R v Uzabeaga [2000] NSWCCA 318; (2000) 119 A Crim R 452
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Smith v The State of Western Australia [2010] WASCA 176
Suleiman v The State of Western Australia [2017] WASCA 26
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
The State of Western Australia v Austin [2023] WASCSR 3
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Maxton [2023] WASCA 174
The State of Western Australia v Radovic [2020] WASCA 46
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Weir v The Queen [2011] NSWCCA 123
Wheeler v The Queen [No 2] [2010] WASCA 105
BUSS P & MAZZA JA:
This is an appeal against sentence.
On 19 December 2022, the appellant was convicted, on his plea of guilty, of one count which alleged that on or about 17 January 2022, at Denmark, the appellant attempted to murder EG, contrary to s 283(1) of the Criminal Code (WA) (the Code).
On 3 February 2023, Forrester J sentenced the appellant to 5 years 6 months' imprisonment. The sentence was backdated to 2 February 2022 to take account of time the appellant had spent in custody solely in relation to the offence. A parole eligibility order was made.
The appellant requires an extension of time to appeal. The last date for appealing was 24 February 2023. The appellant did not file his appeal notice until 23 June 2023. The application for an extension of time is supported by an affidavit of the appellant's solicitor, Frederik Van der Walt, sworn 22 June 2023.
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the sentencing judge denied the appellant procedural fairness in rejecting the opinion of Dr Gosia Wojnarowska, a consultant psychiatrist, in her addendum report dated 26 January 2023 that the appellant's offending was causally connected to his depression in that:
(a)her Honour did not, during the sentencing hearing, give notice that she was not prepared to accept Dr Wojnarowska's opinion, notwithstanding that the opinion was not controverted by the State; and
(b)further or alternatively, her Honour, without informing the parties, obtained a copy of an article referred to in Dr Wojnarowska's addendum report, read the article and formed the view that the article did not support Dr Wojnarowska's opinion, and took that view into account in rejecting Dr Wojnarowska's opinion.
Ground 2 alleges, in essence, that the sentence imposed by her Honour was manifestly excessive.
The State conceded that the appellant had been denied procedural fairness as alleged in ground 1(b). The State submitted, however, that the sentence of 5 years 6 months' imprisonment was not manifestly excessive as alleged in ground 2.
On 23 October and 7 November 2023, the court heard the appeal. On 7 November 2023, the court reserved judgment.
On 13 November 2023, the court made orders as follows:
(1)Application for an extension of time within which to appeal granted.
(2)Leave to appeal on ground 1 granted.
(3)Leave to appeal on ground 2 refused.
(4)Appeal dismissed.
These are our reasons for making those orders.
The background to the offending
The appellant was aged 47 years at the time of the offending. He was born in South Africa and migrated to Australia in 2008.
The appellant is a medical practitioner. At all material times he practised as a general practitioner. Between about 2010 and about July 2018 the appellant practised in Denmark and from about July 2018 he practised in Albany. The appellant worked long hours; up to 14 or 16 hours a day during the week and about 5 to 10 hours on home visits during the weekend.
In about 2018 the appellant diagnosed himself as suffering from depression and prescribed himself antidepressant medication. The appellant's practice manager noticed the appellant's long hours at work, his reliance upon energy drinks and his apparent anxiety symptoms. The practice manager recommended that the appellant consult a psychiatrist, but he did not.
A few months before the offending, the appellant reduced the dose of his antidepressant medication. This contributed to a relapse of his depression.
EG is the youngest daughter of MG and BG.
EG was born on 2 October 2015. She suffers from Aicardi‑Goutiéres syndrome. This is a rare inherited disorder which affects the brain and results in severe mental and physical disability as well as a significantly reduced life expectancy. EG is non‑verbal and is fed through a nasogastric tube. The syndrome is incurable.
In about 2015 or 2016 the appellant became the family doctor for MG and BG and their children. From late 2018 the appellant saw EG on a weekly basis.
MG told the appellant, and he believed, that children who suffer from Aicardi‑Goutiéres syndrome usually die by about 2 or 3 years of age.
By late 2021, EG was suffering frequent chest infections, losing weight and often admitted to hospital.
In late 2021, MG told the appellant that her time with EG was 'running out'. MG also told the appellant that she was concerned that the family was about to lose their home because BG's employment was jeopardised by his refusal to be vaccinated. MG informed the appellant that she had attempted to smother EG 'but she just wouldn't die'. MG asked the appellant if he could give her something to end EG's life. The appellant did not comply with this request. Instead, he discussed counselling with MG, which she refused.
The facts and circumstances of the offending
On 13 December 2021, shortly after EG had been admitted to and then discharged from hospital, MG and EG had an appointment with the appellant. The appellant made a note that EG was 'deemed palliative', had been 'deteriorating a lot', was 'losing weight' and was 'clinically in a lot of pain'. MG said that EG's 'time had come' and she was 'not going to live'. MG asked the appellant about the most humane substance to inject EG with to end her life. The appellant responded 'I think insulin'. MG enquired how insulin was used. The appellant explained that insulin was usually injected under the skin. MG asked the appellant to write a prescription for insulin so that she could inject EG with it. The appellant agreed. He wrote and gave her a prescription. MG used the prescription that afternoon to obtain insulin but did not inject EG with it. After he was arrested the appellant voluntarily disclosed the plan to police.
On 5 January 2022, MG and EG had an appointment with the appellant. MG asked the appellant for another prescription for insulin. The appellant gave her a computer‑generated prescription. MG used the prescription to obtain insulin.
On 19 January 2022, MG administered insulin to EG. Fortunately, BG arrived home earlier than expected. He noticed that something was amiss with EG and took her to hospital. Ultimately, hospital staff discovered that EG had been injected with insulin and treated her. The treatment ensured that EG did not suffer any long‑term consequences from the insulin. Had she not been treated by hospital staff, EG may have suffered long‑term neurological deterioration or death.
During EG's admission and treatment in hospital, the appellant did not inform hospital staff that he had prescribed insulin for EG or that her illness was attributable to insulin.
In February 2022, after his involvement in the administration of insulin to EG had been identified, the appellant was arrested by police. The appellant then made full admissions including in relation to his appointments with MG and EG and that the administration of insulin had been his idea. Police were unaware of those facts until the appellant voluntarily disclosed them.
Dr Wojnarowska's report dated 24 August 2022
Dr Wojnarowska carried out an assessment of the appellant at the request of the appellant's lawyers. Dr Wojnarowska interviewed the appellant on 29 July 2022 and 1 August 2022. The documents provided to Dr Wojnarowska included a letter dated 21 June 2022 from the appellant's lawyers; a statement of material facts relating to the offending dated 2 February 2022 and prepared by the Office of the Director of Public Prosecutions (WA); and a copy of an electronic record of the appellant's interview with police on 2 February 2022. Dr Wojnarowska prepared a report dated 24 August 2022.
Dr Wojnarowska said in her report that:
(a)the appellant did not currently have any psychiatric condition including any personality psychopathology [15];
(b)there was 'a causal association between the alleged offence and [the appellant's] mental state at that time' [16]; and
(c)the appellant had gained 'good insight since his remand to prison into the fact that his alleged offence was unethical and constitute[d] … a serious breach of his duty as a doctor' [17].
Dr Wojnarowska expressed her opinion in relation to the appellant, relevantly, as follows [47] ‑ [48]:
[The appellant] first developed depressive symptoms in 2017, which he successfully treated with high doses of [the] antidepressant medication, Sertraline. In late 2021, he commenced reduction of his medications due to side effects and at the time of the alleged offence the dose was at 50% of the initial one resulting in relapse of depressive symptoms. Unfortunately, he self‑medicated and did not seek treatment by an independent practitioner who would have been able to objectively monitor his treatment. It is also evident that [the appellant] already had poor professional boundaries which stemmed from his personality structure. The relapse into depression due to dose reduction of his medication further eroded his professional judgement and culminated in what appears to be not only professional misconduct but also a criminal matter.
In my opinion there is a causal association between his mental state and his actions leading to the alleged offence.
The proceedings before the sentencing judge on 19 December 2022
On 19 December 2022, the appellant was arraigned before the sentencing judge. He pleaded guilty to the charged offence of attempted murder (ts 2).
Shortly after the proceedings commenced there was a discussion between her Honour and defence counsel about the trial of MG, who had also been charged with the attempted murder of EG and who had pleaded not guilty. Her Honour indicated, in the context of a suppression order that she proposed to make, that she would not sentence the appellant at the hearing on 19 December 2022. Her Honour said in effect that after hearing submissions from the prosecutor and defence counsel she would adjourn the sentencing of the appellant to a date to be fixed (ts 4).
The prosecutor read aloud the State's amended statement of material facts dated 16 December 2022. The prosecutor said that the facts had been agreed between the parties (ts 7 ‑ 25).
Defence counsel confirmed that the facts had been agreed (ts 26 ‑ 27) and proceeded to make submissions on sentence.
Defence counsel said (ts 28):
The starting point, I think, is that the psychiatric report [dated 24 August 2022], which is embraced and accepted by both parties, clearly show[s] a causal connection between [the appellant's] depression and the way in which he was under immense pressure at that particular point in time.
The sentencing judge responded (ts 28):
I do have some difficulty with Dr Wojnarowska's opinion in that regard because it's not explained, and that's one of the issues I wanted to raise with you, is that she's very brief in saying how the depression, which I accept existed, causally resulted in what has happened. I can absolutely see that it's an explanation in the sense that his state of mind was affected …
Defence counsel then said that, having regard to her Honour's previous indication that she would 'reserve [her] decision in relation to sentence … it may be we'll need to get a supplementary report [from Dr Wojnarowska] … so that your Honour can have a little bit more confidence in the expression of that opinion' (ts 29).
Defence counsel proceeded to make other submissions on sentence and the prosecutor made submissions in reply.
The prosecutor and the sentencing judge referred to defence counsel's proposal to obtain an addendum to Dr Wojnarowska's report in relation to any causal connection between the appellant's mental state and his commission of the offence (ts 71). Her Honour adjourned the appellant's sentencing to 30 January 2023 on the basis that the appellant would file any additional material (including an addendum to Dr Wojnarowska's report) by 27 January 2023 (ts 73, 75).
Dr Wojnarowska's addendum report dated 26 January 2023
Dr Wojnarowska prepared an addendum report dated 26 January 2023 at the request of the appellant's lawyers. In her addendum report Dr Wojnarowska dealt with two matters. First, the provision of additional reasoning in relation to Dr Wojnarowska's conclusion in her report dated 24 August 2022 that there was a causal association between the commission of the offence and the appellant's mental state at the time. Secondly, the provision of an explanation as to how the appellant's mental state at the time of the offending may have impacted upon his decision making in relation to the offending.
As to the first issue, Dr Wojnarowska said [3] ‑ [4]:
[The appellant's] mental state was of concern to the practice manager who noticed that [the appellant] worked long hours, on average 12hour days, at times extending to 18 hours, for months prior to being charged. He self‑reported that he had used to drink up to six caffeine loaded drinks (Red Bull) per day to assist with his fatigue. He was experiencing prominent anxiety symptoms during that period of time which prevented him from being able to have a restful sleep. He ruminated over the welfare of his patients, particularly those affected by the COVID restrictions and vaccination requirement. His inconsistency with taking his antidepressant medication and then cessation of treatment was not a sound decision from a medical point of view and very likely caused the relapse of depression.
[The appellant's] consistent history, his presentation during the interview and my psychiatric assessment leaves me with no doubt that he has provided an accurate history of events and is a reliable source.
As to the second issue, Dr Wojnarowska said [5] ‑ [7]:
Depression is characterised, among other symptoms by anxiety, guilt, hopelessness, restlessness, fatigue, sleep problems, and ruminations. In addition, depression affects cognitive abilities of understanding, appreciating, reasoning and ability to express a choice ((Thomas Hindmarch, Mathew Hotopf & Gareth S Owen) Depression and decision‑making capacity: a systematic review; BMC Medical Ethics 14, Article number 54 (2013)).
Although [the appellant] did not present as acutely depressed, as evidenced by his affect reactivity, occasional humour, and open body posture during his interview with police, in my opinion, he had been accustomed to concealing his symptoms for a long time in order to function as a doctor. It is also my opinion that after having been charged he immediately accepted his guilt and did not seek to justify his actions by blaming his mental state for what had occurred.
[The appellant's] views about [the] public health system, Covid vaccination requirements and even his poor professional boundaries are undoubtedly related to his personality characteristics. However, in my view, the fact that he crossed the most important boundary in [the] medical profession (First Do No Harm) indicates that his judgement at that time was severely impaired. (original emphasis)
The proceedings before the sentencing judge on 30 January 2023
At the resumed sentencing hearing on 30 January 2023 defence counsel made these submissions in relation to Dr Wojnarowska's addendum report dated 26 January 2023 (ts 77 ‑ 78):
[Dr Wojnarowska] has confirmed her opinion that there is a direct connection between depression suffered by [the appellant] and his decision‑making in relation to the offending. As observed by the psychiatrist in her first report dated 24 August 2022 … there is a causal connection between the alleged offence and his mental state at the time.
Defence counsel also referred to some additional material from the prison authorities including evidence that the appellant had been placed in protective custody at his own request.
The prosecutor made these submissions in relation to Dr Wojnarowska's addendum report dated 26 January 2023 and the additional material from the prison authorities (ts 80):
The State notes … the further addendum … report of Dr Wojnarowska, and also the prison materials. Your Honour, in the State's submission, they speak for themselves. The State makes no further submissions in relation to those further documents.
…
… In relation to the [causal] connection, it's submitted that it still, in the State's submission, does appear quite tenuous, but it's the opinion of Dr Wojnarowska that the depression has contributed in relation to the offending conduct at the time, so, your Honour, the State can't take that matter further.
The sentencing judge then informed the prosecutor and defence counsel that she would adjourn the sentencing of the appellant to 3 February 2023.
The proceedings before the sentencing judge on 3 February 2023
At the resumed sentencing hearing on 3 February 2023 the sentencing judge took appearances from the prosecutor and defence counsel. Her Honour then asked whether there was anything that needed to be dealt with before her Honour passed sentence. The prosecutor and defence counsel said that nothing needed to be dealt with. Her Honour then made her sentencing remarks and imposed the sentence of 5 years 6 months' imprisonment, backdated to 2 February 2022, with eligibility for parole.
In her sentencing remarks her Honour made findings and comments relevant to ground 1 as follows.
The sentencing judge accepted that at the time of the offending the appellant was 'struggling significantly' and was 'regularly overstepping reasonable professional boundaries' between him and his patients [55]. Her Honour also accepted that at the time of the offending the appellant was suffering from depression and that this was a mitigating factor. However, her Honour did not accept that the depression reduced the appellant's moral culpability for his offending. Her Honour's reasoning on that issue was, in summary, as follows:
(a)Despite his depression, the appellant was able to maintain his medical practice and treat patients 'excellently' while performing the role of a principal of the practice [56].
(b)The appellant was aware that his conduct would be perceived as illegal and unethical, but he felt helpless and hopeless and wanted to help EG and her family to avoid ongoing suffering. However, it was not properly explained why the appellant did not seek 'one of the many other available means of helping the family' [81].
(c)The appellant did not seek the assistance of a psychiatrist for his depression, despite having been advised to do so by the practice manager [82].
(d)A psychiatrist (namely Dr Mat Coleman) visited the appellant at the request of the practice manager. The appellant informed the psychiatrist that he was being treated with antidepressants. These were self-prescribed [82], [84].
(e)The appellant relapsed into depression because he reduced the dose of his antidepressant medication. The appellant did not seek independent medical advice [83].
(f)There was no evidence that the appellant sought medical assistance either before or after committing the offence [84].
(g)It was unknown whether the appellant has continued to take antidepressant medication. However, the appellant did not present to Dr Wojnarowska as presently having any identifiable mental illness or psychopathology [84].
(h)Dr Wojnarowska opined that the appellant now had insight and was remorseful. His personality style is characterised by an excess of empathy and by feeling responsible for the welfare of others [85].
(i)In support of her opinion that there was a causal connection between the appellant's mental state and his offending, Dr Wojnarowska noted that the appellant's mental state was of concern to the practice manager. The appellant experienced prominent anxiety, ruminated over the welfare of his patients and managed fatigue by consuming high caffeine drinks. Inconsistent medication 'very likely caused the relapse of [his] depression'. Dr Wojnarowska regarded the appellant as a reliable historian [86].
(j)Dr Wojnarowska explained that depression is characterised by anxiety, guilt, hopelessness, restlessness, fatigue, sleep problems and ruminations [87].
(k)Citing a 2013 article, Dr Wojnarowska opined that depression also affects cognitive abilities of understanding, appreciating, reasoning and the ability to express a choice (addendum report of Dr Wojnarowska dated 26 January 2023 [5]). Having obtained and read the article, the sentencing judge concluded that this aspect of Dr Wojnarowska's opinion did not accurately reflect the results of the study. Her Honour also noted that, in any event, 'it is not suggested that all of those things were affected' in the appellant's case [87].
(l)Dr Wojnarowska considered that the appellant did not present as 'acutely depressed' during his electronically recorded interview with police. The sentencing judge concluded that it was unclear on what basis Dr Wojnarowska formed the opinion that the appellant had become accustomed to concealing his symptoms. Her Honour expressed difficulty accepting that the appellant had sufficient insight to conceal his depressive symptoms over a long period of time, while being so affected by depression that his cognitive abilities of appreciating and reasoning were significantly impacted [88] ‑ [89].
(m)It was difficult to reconcile the appellant's competent practice of medicine with a finding that his cognitive abilities were adversely impacted [90].
(n)Some aspects of the 'poor judgment' exercised by the appellant were due to personality characteristics [91].
(o)Although the appellant reported that he was 'not thinking straight' when he prescribed the insulin, he did this on two occasions. The appellant therefore had time to consider the wrongful nature of his conduct. The appellant also left no trail of his prescriptions, demonstrating an awareness of the need to conceal what he had done and an ability to do so [92].
(p)The sentencing judge noted that the prosecutor 'made somewhat faint submissions regarding the tenuous nature of the link between [the appellant's] depression and his offending' and, somewhat generously, the prosecutor 'did not strongly take issue with' Dr Wojnarowska's opinion [93].
(q)Her Honour then said [94] ‑ [96]:
However, having carefully considered the reports, and the lack of analysis as to how [Dr Wojnarowska] formed her conclusions in her addendum report despite being specifically directed to the issue, I am not satisfied on the balance of probabilities that your depression was causally related to the offending, in the sense that I am not satisfied that it impaired your mental functioning to such an extent as to reduce the blameworthiness or culpability of your conduct.
However, I am satisfied that you were suffering from depression, and the long hours you were putting into your role as a medical practitioner were highly detrimental to your mental state. The combination of your personality characteristics, your views about the pandemic's impacts on your patients, your views as to the 'politics' of medicine and your mental state provide an explanation as to how you came to see [EG']s situation as hopeless, and how you came to overly empathise with her mother's perspective.
I also accept that your conduct was not engaged in out of any ill‑will or malice. Indeed, I accept that, subjectively, you considered you were trying to help. While objectively speaking, that view was wholly misguided and morally disordered, it does mean that the offence is less serious than it would have been otherwise, and the sentence imposed on you will reflect that.
The merits of ground 1
In Suleiman v The State of Western Australia,[1] Buss P (Mazza and Mitchell JJA agreeing) stated the legal principles that are relevant to the determination of ground 1. It is convenient to reproduce the substance of what his Honour wrote in that case.
[1] Suleiman v The State of Western Australia [2017] WASCA 26 [37] ‑ [47].
A sentencing judge must conduct sentencing proceedings in accordance with the rules of procedural fairness. See Pantorno v The Queen;[2] Parker v Director of Public Prosecutions;[3] Baroudi v The Queen;[4] Button v The Queen.[5]
[2] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 472 ‑ 473 (Mason CJ & Brennan J), 482 ‑ 483 (Deane, Toohey & Gaudron JJ).
[3] Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 293 ‑ 296 (Kirby P, Handley & Sheller JJA agreeing).
[4] Baroudi v The Queen [2007] NSWCCA 48 [29] ‑ [33] (Price J, Sully & Howie JJ agreeing).
[5] Button v The Queen [2010] NSWCCA 264 [14] ‑ [18] (Latham J, Simpson & Kirby JJ agreeing).
Section 15 of the Sentencing Act 1995 (WA) provides:
To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
The discretionary power conferred by s 15 must be exercised:
(a)in a manner that is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and
(b)in accordance with the rules of procedural fairness.
See Teakle v The State of Western Australia.[6]
[6] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [65] (Buss JA, Roberts‑Smith JA agreeing).
The rules of procedural fairness are concerned with processes rather than outcomes. They are therefore rules which govern what a court must do in the course of deciding how a power should be exercised. That is, the rules of procedural fairness apply to the processes by which a decision pursuant to the exercise of power will be made. See Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[7]
[7] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [16] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
Fairness is essentially a practical concept. It is not abstract in nature. The rules of procedural fairness are concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam.[8]
[8] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).
In Pantorno, the appellant pleaded guilty to a charge of possession of a drug of dependence. Defence counsel told the sentencing judge that the quantity of the drug was very small and was for the appellant's own use. He referred to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as prescribing the relevant penalty 'where it is not a trafficable amount, and the Crown doesn't suggest for one moment that this is a trafficable amount'. The prosecutor did not challenge that assertion and made no submissions about sentence. The sentencing judge sentenced the appellant under s 73(1)(c) of the Act, which prescribed a higher penalty than s 73(1)(b), on the basis that there was no evidence before him that the appellant's possession of the drug was not for a purpose relating to trafficking. The High Court held that, since the proceedings before the sentencing judge had been conducted by the prosecutor and defence counsel on the footing that s 73(1)(b) applied, it had not been open to the judge to sentence under s 73(1)(c) without giving defence counsel an opportunity to show why the appellant was not liable to the higher penalty prescribed by s 73(1)(c).
Mason CJ and Brennan J said:
When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary [[1976] 1 WLR 1255, at pp 1265 ‑ 1266; [1976] 2 All ER 865, at p 874]. Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer (473).
Deane, Toohey and Gaudron JJ observed:
In all the circumstances, it was incumbent upon the sentencing judge to indicate to counsel his lack of acceptance of the underlying assumption upon which the submissions upon sentence had been made. This was particularly the case when counsel had asserted, without dissent from the Crown or comment by the sentencing judge, that the small quantity of heroin found in his client's possession had, in any event, been for the applicant's personal use. In the result, the conclusion is unavoidable that the applicant was effectively denied any adequate opportunity at first instance to call the evidence which it was necessary to call … The denial of that opportunity to call evidence constituted a denial of procedural fairness which vitiated the sentencing judge's finding that, by reason of absence of evidence, he was not satisfied of the absence of any purpose relating to trafficking (482 ‑ 483).
In Parker, the Court of Appeal of New South Wales held that a failure by a trial judge to disclose that he was contemplating imposing a custodial sentence, in lieu of the non‑custodial sentence appealed from, constituted, in the circumstances, a denial of procedural fairness. Kirby P commented:
Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view (296).
A sentencing judge is not, of course, bound to accept and act on the prosecutor's and defence counsel's agreement as to the factual basis on which an offender is to be sentenced. See Chow v Director of Public Prosecutions;[9] R v Uzabeaga.[10] However, it does not follow from that proposition that a sentencing judge may make findings of fact inconsistent with the statement of agreed facts without warning the parties of his or her intention to do so. In Chow, Kirby P noted that 'circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will themselves amount to a departure from the rules of procedural fairness' (606). See also Uzabeaga [35].
[9] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 606 (Kirby P).
[10] R v Uzabeaga [2000] NSWCCA 318; (2000) 119 A Crim R 452 [34] (Bell J, Simpson & Dowd JJ agreeing).
In Baroudi, it was held that a sentencing judge had failed to accord procedural fairness to an offender in circumstances where the prosecutor in effect nominated an appropriate sentence. In particular, the prosecutor conceded that the effective non‑parole period should be 'another 12 months and no more' [26]. The judge then asked defence counsel whether he wished to say anything in opposition to that course. Defence counsel made his submissions on sentence in accordance with the prosecutor's concession. The judge imposed a more severe sentence (in particular, a more severe non‑parole period) than that nominated by the prosecutor. Price J commented:
[I]t was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness [33].
See also Button v The Queen;[11] Weir v The Queen.[12]
[11] Button v The Queen [2010] NSWCCA 264.
[12] Weir v The Queen [2011] NSWCCA 123.
In the present case, the sentencing judge expressed concern at the hearing on 19 December 2022 about the brevity of Dr Wojnarowska's reasoning in support of her opinion that there was a causal association between the appellant's offending and his mental state at that time. Her Honour's expression of concern prompted defence counsel to obtain from Dr Wojnarowska the addendum report dated 26 January 2023.
At the hearing on 30 January 2023 defence counsel and the prosecutor made submissions in relation to Dr Wojnarowska's addendum report. Defence counsel submitted that in the addendum report Dr Wojnarowska had confirmed her opinion that there was a direct connection between the appellant's depression, on the one hand, and his decision making in relation to the offending, on the other; in particular, there was a causal connection between the offending and the appellant's mental state at the time. The prosecutor referred to Dr Wojnarowska's original report and her addendum report and submitted that the reports 'speak for themselves'. The prosecutor also submitted that the causal connection appeared to the State to be 'quite tenuous', but Dr Wojnarowska's opinion was that the appellant's depression had contributed to the offending conduct and the State could not take the matter further. The prosecutor in effect conceded that, based on Dr Wojnarowska's reports, the causal connection had been established, even though the connection was slight.
The sentencing judge did not inform defence counsel, either at the hearing on 30 January 2023 or before her Honour commenced her sentencing remarks on 3 February 2023, that:
(a)her Honour had read the article (referred to in the addendum report); and
(b)her Honour had formed the view that the article did not support Dr Wojnarowska's opinion that there was a causal connection between the offending and the appellant's mental state at the time.
It is apparent from her Honour's sentencing remarks on 3 February 2023 that her Honour's view that the article did not support Dr Wojnarowska's opinion that there was a causal connection between the offending and the appellant's mental state at the time was a material factor in her Honour's conclusion that the appellant had not established, on the balance of probabilities, that the relevant causal connection existed.
In our opinion, the sentencing judge's failure, in the circumstances we have described, to inform defence counsel, either at the hearing on 30 January 2023 or before her Honour commenced her sentencing remarks on 3 February 2023, of the matters set out at [63] above, occasioned material procedural unfairness to the appellant. Defence counsel was not given an opportunity to persuade her Honour to adopt a different view in relation to the article and Dr Wojnarowska's opinion by making additional submissions and, if thought fit, by seeking to adduce additional evidence from Dr Wojnarowska. The undemanding standard of 'reasonable conjecture' is satisfied in that her Honour's decision‑making in relation to the article and Dr Wojnarowska's opinion could realistically have been different (that is, relevantly, more favourable to the appellant) if the appellant had been accorded procedural fairness. See Nathanson v Minister for Home Affairs;[13] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[14]
[13] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [30] ‑ [33] (Kiefel CJ, Keane & Gleeson JJ). See also Gageler J at [45] ‑ [47].
[14] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] ‑ [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson & Jagot JJ), [38] (Beech‑Jones J).
Ground 1(b) has been made out. It is unnecessary to deal with ground 1(a).
The merits of ground 2
At the hearing of the appeal, counsel for the appellant informed the court that he did not pursue ground 2. It is therefore unnecessary to consider ground 2.
Section 31 of the Criminal Appeals Act 2004 (WA)
Section 31(1) of the Criminal Appeals Act 2004 (WA) provides that s 31 applies, relevantly, in the case of an appeal commenced by an offender under s 23 against, relevantly, the sentence imposed as a result of a conviction on indictment.
By s 31(3), unless under s 31(4) this court allows the appeal, it must dismiss the appeal.
Section 31(4) provides, relevantly, that this court may allow the appeal if, in its opinion, a different sentence should have been imposed.
This court has the material necessary to decide whether a different sentence should have been imposed on the appellant. At the hearing of the appeal counsel for the appellant called Dr Wojnarowska as a witness. The relevant material for the purposes of s 31(4) includes the evidence given by Dr Wojnarowska.
Dr Wojnarowska's evidence at the hearing of the appeal
Dr Wojnarowska gave evidence in her examination‑in‑chief to the following effect:
(a)Dr Wojnarowska prepared the reports of 24 August 2022 and 26 January 2023. She had been given an outline of the sentencing judge's comments in relation to her reasoning in those reports (ts 23).
(b)In Dr Wojnarowska's view, the appellant was suffering from a major depressive episode from approximately January 2021 to January 2022 (ts 23). Major depression refers to a psychiatric disorder with specific characteristics as defined in the Diagnostic and Statistical Manual of Mental Disorders (5th ed) (DSM‑5). This includes persistent low mood or anxiety, persistent ruminations, disturbance of sleep, disturbance of appetite with loss of weight and, 'most importantly', cognitive impairment (ts 23 ‑ 24).
(c)Cognitive impairment is a characteristic medical practitioners question when making a diagnosis of depression as it is highly relevant to a person's functioning every day and professionally. As specific cognitive deficits are recognised to be present during depression, predominantly executive dysfunction, a person's professional functioning may be affected (ts 24).
(d)Symptoms of depression such as anxiety, guilt, hopelessness, restlessness, fatigue, sleep problems and ruminations are found in parallel to cognitive deficits in depressed individuals. If someone is unable to sleep or ruminates, that would further impair their cognitive function (ts 24).
(e)Dr Wojnarowska was asked to describe the factors that contributed to her opinion that the appellant was suffering from depression (ts 24). Dr Wojnarowska qualified her answer by explaining that her assessment of the appellant was retrospective which is 'always less reliable' as she relied solely on the appellant's account of what was happening in his life (ts 24).
(f)The factors were as follows:
(i)The appellant's illness started when he moved his practice from Denmark to Albany in 2017 (ts 24). By 2021, he was seeing 50 to 60 patients per day and was working 15 to 18 hours per day (ts 25).
(ii)The appellant experienced mounting pressure as he tried to assist everyone, which resulted in increasing anxiety, poor sleep, ruminations and fatigue (ts 25).
(iii)During that time, there was evidence of the appellant crossing professional lines. For example, the appellant paid for a patient's ticket to Perth to see a specialist and accompanied her to the assessment. Also, when a pregnant young woman came to see the appellant to facilitate an abortion, he told the young woman he was prepared to pay for the child's upbringing if she continued with the pregnancy (ts 25).
(g)While the appellant had premorbid personality characteristics which would make him more vulnerable to the kind of actions described above at (f)(iii), his description of agitation, ruminations, the amount of work he was doing and a lack of sleep pointed strongly to the presence of a major depressive episode (ts 26).
(h)The two incidences described at (f)(iii) above suggested that the appellant had impaired judgment in relation to the way in which he was practising medicine prior to prescribing insulin to EG (ts 26).
(i)As a medical practitioner, the appellant was, in Dr Wojnarowska's view, incompetent or bordering on incompetency (ts 26).
(j)The appellant was self-prescribing Sertraline, a common antidepressant medication. Medical practitioners are not allowed to self‑prescribe medication (ts 26 ‑ 27). Dr Wojnarowska struggled to get a clear history from the appellant regarding his use of the antidepressant medication. In summary, there was an inconsistent dosage and inconsistent compliance with the dosage. This meant that if the appellant stopped taking the medication, he would experience a relapse of his symptoms, and there would be a delay in the medication working when he began taking the medication again (ts 27).
(k)Dr Wojnarowska formed views about the development of the appellant's thought processes concerning the treatment of EG before he prescribed the insulin (ts 27). The appellant was frequently involved in treating EG for infections, inserting the nasogastric tube and facilitating admissions to hospital. There was an attempt by the parents to seek treatment in the United States, but the treatment did not result in positive changes to EG's prognosis. It was then agreed by the appellant and the parents that they would conduct a symptomatic approach to EG's treatment, meaning they would focus on making EG as comfortable as possible.
(l)During COVID‑19 the family experienced financial difficulty and was facing homelessness. As EG required oxygen on a regular basis, the appellant felt distressed and hopeless in contemplating how he could assist the family because carrying an oxygen supply 'to the tent area was not possible' (ts 28).
(m)Dr Wojnarowska was asked how she came to the view that the appellant's illness was shaping his thinking at the time and, if at all, how it occurred. Dr Wojnarowksa explained that the appellant was experiencing enormous feelings of guilt and responsibility towards the family (ts 28). Prior to the offence, the mother asked the appellant for help. In the appellant's mind there was a blurring of boundaries as to who was the patient; that is, the mother or the child. It was an error of judgment that he had not displayed in the past. What the appellant wanted to do was to alleviate the suffering of the mother. It was a recurring theme in the appellant's presentation that he wanted to deal immediately with someone's pain and suffering. The appellant only had tears in his eyes during the interview with Dr Wojnarowska when he talked about his patients, not himself (ts 28 ‑ 29).
(n)In prison the appellant presents differently. This is because he has been relieved from the burden of caring for his patients. The appellant informed Dr Wojnarowska that it is the first time in his life that he can sleep well, exercise and talk to his family (ts 29).
(o)Dr Wojnarowska explained that, in her opinion, there was a causal link between the appellant's depression and his decision to prescribe the insulin. Depression affects executive functioning, which is a set of mental processes which assists people to inhibit certain behaviours and to plan and organise. In the appellant's case, his executive function was overridden by his emotional state, which clouded his ability to think as a doctor at the relevant time (ts 29).
(p)Dr Wojnarowska confirmed that, leading up to giving evidence at the hearing of the appeal, she was informed that there had been a second, earlier occasion, in mid-December 2021, where the appellant had prescribed insulin to EG (ts 29). That information did not affect Dr Wojnarowska's views about the level of impairment of the appellant's judgment. In her view, his judgment was impaired during that period (ts 30).
(q)The sentencing judge considered an article that Dr Wojnarowska had referred to in her addendum report titled 'Depression and Decision‑Making Capacity for Treatment or Research: A Systematic Review' (the article). Her Honour was of the opinion that the addendum report did not accurately reflect the results of the study to which the article related. Dr Wojnarowska explained that psychiatry is different from other types of medicine where there are specific markers of a condition so 'conclusions can be more black and white'. Although the article supported some of Dr Wojnarowska's views, other studies did not come to the same conclusion. Nonetheless, the DSM‑5 confirms that depression leads to cognitive impairment in people who suffer from the illness (ts 30).
(r)Members of the medical profession are known to cope with the symptoms of their illnesses and to carry on working. Because the appellant was so busy with his patients and their needs, he likely presented to them as functioning normally. The appellant was dealing with people who were suffering from mental health, familial and financial problems as a result of COVID‑19, as well as his 'normal cohort' as a medical practitioner. The appellant's personality 'coloured the way … the depression expressed itself in him'. The more he worked the more depressed he became, and this turned into a 'vicious circle' (ts 30 ‑ 31).
(s)The appellant's personality traits, in particular his feelings of continuous failure as a doctor and of responsibility for his patients, became amplified by virtue of the symptoms of depression that he was suffering from (ts 31).
Dr Wojnarowska gave the following evidence in response to questions from the court prior to her cross‑examination:
(a)The child and the mother in this case were the appellant's patients. Despite his major depression, the appellant knew that what he was doing in prescribing insulin twice, for the purpose of ending the child's life at the mother's request, was wrong. The major depression compromised the appellant's competent discharge of his duties as a medical practitioner. In Dr Wojnarowska's opinion, the major depression caused executive dysfunction on the appellant's part which clouded his ability to think properly as a doctor (ts 31).
(b)In Dr Wojnarowska's view, the appellant knew that what he was doing was 'legally wrong'. The appellant did not, however, think that it was 'morally wrong'. The appellant adopted a utilitarian approach whereby he weighed the welfare and suffering of the child against the family, and ultimately made the decision to bring about the child's death in order to reduce the suffering of other family members (ts 32).
Dr Wojnarowska gave evidence in cross-examination to the following effect:
(a)Dr Wojnarowska's addendum report dated 26 January 2023 states, relevantly, that 'depression affects cognitive abilities of understanding, appreciating, reasoning and ability to express a choice'. Dr Wojnarowska referred to the article as support for this opinion. She accepted that the article may not have provided the strongest support for the opinion that depression affects cognitive abilities. Dr Wojnarowska also accepted that the article is a literature review about decision‑making capacity and depression for people who are choosing treatment options for themselves and that the appellant's matter was a different 'paradigm' (ts 33).
(b)The article describes a model about decision-making capacity which has four 'limbs' (ts 33 ‑ 34). Those four limbs are: the ability to express a choice; the ability to understand information relevant to treatment decision‑making; the ability to appreciate the significance of one's own situation and illness and the probable consequences of treatment options; and the ability to reason with the relevant information and engage in a logical process of weighing treatment options. Dr Wojnarowska believes that the decision‑making model in the article is relevant to the decision-making capacity of the appellant because it is 'in sync' with Dr Wojnarowska's evidence as to the appellant's executive dysfunction (ts 34).
(c)The article does not support a proposition that depression impacts a person's ability to express a choice. Dr Wojnarowska accepted that the article is not conclusive in regard to research on and the finding of a firm link between depression and decision-making capacity. However, Dr Wojnarowska maintained that there is a causal link between depression and cognitive impairment (ts 35).
(d)Dr Wojnarowska accepted that the article does not support the finding that depression affects the ability to express a choice, but maintained that depression does affect 'appreciation' of a choice (ts 35).
(e)Dr Wojnarowska stated that rigid adherence to the article would not provide an explanation for the appellant's decision, one reason being that Dr Wojnarowska conducted a retrospective assessment of the appellant. Dr Wojnarowska did not accept that it would be possible to say that the appellant had capacity to make the decision simply because the article states that depression does not affect that capacity (ts 36).
(f)On 5 January 2022, the appellant knew that he was prescribing insulin which would cause the death of the child if it was administered (ts 36 ‑ 37). With respect to the decision‑making model in the article, the appellant was unable to appreciate that this was a step too far to solve his client's problem (ts 37). However, the appellant's depression did not have a role to play in the appellant's ability to think clinically that insulin would kill the child, that he could prescribe insulin and that he was doing so at the mother's request (ts 37). The depression essentially inhibited the barrier for the appellant to say, 'I shouldn't be doing that' and clouded his judgment (ts 38).
(g)Dr Wojnarowska made a diagnosis of depression in both of her reports. Dr Wojnarowska did not make a reference to the DSM‑5 in either report. However, at the hearing of the appeal she gave evidence that her diagnoses were made in reference to the DSM‑5 (ts 38).
(h)The DSM‑5 was released in either 2021 or 2022 and the DSM‑5 therefore post‑dates the article (ts 38).
(i)In her evidence‑in‑chief Dr Wojnarowska said, in reference to the DSM‑5 criteria, that 'most importantly' one of the criteria of depression was the diminished ability to think or concentrate. Dr Wojnarowska clarified that there is no priority of the diagnostic criteria for depression in the DSM‑5. She used the phrase 'most importantly' in her evidence‑in‑chief as it relates to the appellant's case (ts 39).
(j)Counsel for the State took Dr Wojnarowska to a passage in the DSM‑5 where it is stated, in respect of criterion A8, 'Those engaged in cognitively demanding pursuits are often unable to function'. Dr Wojnarowska confirmed that this was the 'umbrella' within which Dr Wojnarowska said that the appellant's executive functioning was impaired (ts 40).
(k)Dr Wojnarowska watched the appellant's electronically recorded interview with police dated 2 February 2022. Although Dr Wojnarowska did not observe any symptoms of depression whilst watching the interview, symptoms of depression as outlined in the DSM‑5 may not necessarily have been visible at that time. This was partly because being in a prison environment was almost 'like a relief' for the appellant (ts 40). Dr Wojnarowska would not diagnose the appellant as having a severe depressive episode at the time of the interview (ts 41).
(l)In making the retrospective assessment of the appellant, Dr Wojnarowska relied fundamentally on what the appellant had told her about his experiences in 2021 and early 2022. Whilst Dr Wojnarowska did speak with Dr Coleman, the extent of Dr Coleman's interaction with the appellant was that some of the appellant's behaviours had prompted the practice manager to request Dr Coleman to 'check in' on the appellant (ts 41 ‑ 42). It is very difficult to make a retrospective assessment of the severity of the appellant's depression when he prescribed the insulin (ts 42 ‑ 43).
(m)The appellant had prescribed himself an antidepressant called Sertraline. When asked whether a 300mg dosage of Sertraline taken consistently would be an effective method to reduce the appellant's depressive symptoms, Dr Wojnarowska stated that she could not provide a 'yes' or 'no' answer. This is because a majority of patients will need to try a number of medications before they begin to respond to one and also because a patient's medical treatment will be augmented with psychological treatment (ts 43). Assuming that the Sertraline medication was effective for the appellant personally, a 300mg dosage might have assisted with his depression management (ts 43 ‑ 44).
(n)The appellant attempted to wean himself off the medication because of the side effects that he was experiencing as a result of the high dosage. He then re‑started the medication again, but Dr Wojnarowska was unsure when this happened (ts 44).
(o)In his electronically recorded interview, the appellant told the police that he had been taking Sertraline consistently for four years. At the time of the interview, the appellant was taking 150mg. He had previously taken 200mg. The appellant had suffered side effects such as night sweats (ts 44). The appellant told police that whilst he was still depressed at times, he was a rational person and was not suicidal. The appellant did not receive counselling. However, he spoke often to his wife about his mental health issues. The appellant had been weaning himself off the medication for approximately two months, but had not noticed much of a difference (ts 45).
(p)Dr Wojnarowska was of the opinion that a dosage of 150mg could still have an impact on managing the appellant's depression. The appellant's statement in the electronically recorded interview that he perceived himself as a rational person is contrary to how he felt when he was faced with the request to help the family of the child. At that time, the appellant 'felt hopeless and helpless and was unable to muster a rational solution' to a situation that 'albeit difficult, [was not] impossible … to resolve' (ts 46).
(q)It was put to Dr Wojnarowska that the sentencing judge observed that there was a 'discord' between the appellant's ability to maintain a practice as against having depression in that, because the appellant was still able to manage a practice and treat his patients, his depression may not have been at a level of severity which impaired his cognitive function. Dr Wojnarowska disagreed with this observation. Dr Wojnarowska also disagreed with the sentencing judge's comment that the appellant's practice was successful (ts 46).
(r)Dr Wojnarowska was cross‑examined about the number of incidences where the appellant breached professional and ethical boundaries which were mentioned in Dr Wojnarowska's evidence‑in‑chief (ts 46 ‑ 47).
(i)The first incident involved the appellant taking a day off work and flying with a patient to Perth for a specialist appointment. Dr Wojnarowska said that depression had a role to play in the appellant's decision to assist the patient in that manner. This was due to his feelings of guilt and hopelessness, and his need to 'rescue' his patients. Dr Wojnarowska explained that 'depression has [a] different colour depending on our personality', and not every person with major depression would behave the way that the appellant behaved. The appellant's personality characteristics were exaggerated by the presence of depression (ts 47).
(ii)Dr Wojnarowska accepted that doctors can breach professional and legal boundaries in the absence of any mental impairment, and they can choose to do so (ts 47).
(iii)The second incident involved the appellant offering to pay for the upbringing of a child of a patient who was considering an abortion. It was put to Dr Wojnarowska that this decision by the appellant was made based on the appellant's belief system rather than influenced by his depression (ts 47). Dr Wojnarowska said that in her view the main 'driver' behind the appellant's conduct was alleviating his own feelings of guilt and the 'sense' that he was unable to help his patients (ts 48).
(iv)Dr Wojnarowska agreed that in his electronically recorded interview the appellant said the reason why he wanted to be a doctor was to help people and the desire to help people was a 'driver' of the appellant (ts 48).
(v)It was again put to Dr Wojnarowska that the incident where he offered the financial assistance to the pregnant patient to avoid the termination of the pregnancy was an example of the appellant helping a patient in a manner that the appellant saw 'fit through his belief system'. Dr Wojnarowska disagreed. Dr Wojnarowska further explained that there had been no evidence that 'he behaved in this manner' before moving to the Albany clinic. The appellant's 'trajectory' indicated that he was highly compromised and that his actions 'were very much coloured by his personality characteristics' (ts 48).
(s)Dr Wojnarowska agreed that: the appellant had a close relationship to MG in that he was the family's general practitioner; the appellant had a 'treating relationship' with MG's child; the appellant was involved in the care of the family for many years and had seen the family regularly because the child had to attend the clinic often; the appellant watched the difficulties MG was experiencing in the lead up to January 2022, including her relationship breakdown with her husband, her fears about being homeless and being able to care for her child when homeless, and the financial issue of her husband losing his job; and the appellant had a conversation with MG about ending the child's life, in essence, to improve MG's life (ts 49).
(t)Counsel for the State described the situation as a 'utilitarian way' of solving the problem, being to relieve MG of the burden of looking after the child (ts 49). Dr Wojnarowska described the issue as being the appellant's 'clouded judgment', where he treats MG as his patient as opposed to the child (ts 50).
(u)Dr Wojnarowska accepted that the predominant reason why the appellant prescribed the insulin for the purposes of killing MG's child was because that is how he viewed he could help MG (ts 50).
(v)It was then put to Dr Wojnarowska that the role depression had to play in the appellant's decision to prescribe insulin to the child was that it disinhibited his ability to identify that the decision was a legal wrong. Dr Wojnarowska responded that it was her view that the decision was driven by the appellant's depressive cognitions, ruminations and the feelings of guilt and responsibility that he carried for his patients (ts 50).
(w)Dr Wojnarowska disagreed with the proposition that it was the appellant's personality type to assist people in the way he sees fit and that any boundary, such as a professional or legal duty, plays a secondary role in the way he assists people. Dr Wojnarowska explained that the appellant does have that personality, but a depressive illness was 'superimposed' on his personality and this 'disinhibited him and clouded his judgment'. Dr Wojnarowska added that 'there is no core evidence to support any of those hypotheses' (ts 50).
(x)In relation to Dr Wojnarowska's proposition that there was 'no core evidence to support' her hypotheses, counsel for the State asked whether this was because of the difficulty of making a diagnosis about the severity of the appellant's depression at the time. Dr Wojnarowksa appeared to accept this, and said it was also because the field of psychiatry, unlike other fields of medicine, does not have 'specific objective markers' that can be presented to the court (ts 50).
(y)Dr Wojnarowska agreed with the proposition that the appellant's depression did not fetter his appreciation of the legal wrong in prescribing the insulin (ts 50).
Dr Wojnarowska gave evidence in response to questions from the court to the following effect:
(a)Dr Wojnarowska agreed, in relation to her mentioning that doctors can lose boundaries with a patient, that this situation could involve a doctor seeing the patient's personal problems as the doctor's personal problems, which required a solution by the doctor (ts 51).
(b)Dr Wojnarowska also agreed that, in her opinion, the appellant's major depressive illness played a role in the mother's personal problems becoming the appellant's personal problems. The appellant believed that it was necessary for him to resolve those problems in a way that went beyond the objective approach in a proper doctor‑patient relationship (ts 51).
(c)Dr Wojnarowska agreed that when she gave evidence about depression 'clouding the appellant's ability to think', she meant that the appellant saw the personal problems of his patients as his own personal problems (ts 51).
(d)Dr Wojnarowska agreed that when she spoke about a 'clouded ability to think', she was referring to diagnostic criterion A8 in the DSM‑5's diagnostic criteria for major depressive disorder (ts 52).
(e)Diagnostic criterion A8 provides:
Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
(f)The court referred Dr Wojnarowska to the part of the DSM‑5 that describes in more detail criterion A8. The relevant part of the DSM‑5 states in effect that many individuals report an impaired ability to think, concentrate or make even minor decisions. The court asked Dr Wojnarowska whether, in discussing the appellant's 'clouded ability to think', she was referring to distortions of thought. Dr Wojnarowska explained that there are two types of processes in judgment making, one is intellectual, and one is emotional. In a normal functioning individual, one process will take precedent over the other, depending on the situation. In the appellant's case, the emotional process was so intense, driven by his feelings of guilt, that it clouded his ability to make an intellectual, rational judgment that was required from him as a doctor (ts 52 ‑ 53).
(g)Dr Wojnarowksa agreed that she had used the expression 'feelings of [worthlessness] and guilt' on a number of occasions to describe the emotional drivers of the appellant. The court referred Dr Wojnarowska to a paragraph in the DSM‑5 which mentioned those feelings but in a different context. Dr Wojnarowska explained that the DSM‑5 cannot refer to each 'possibility' as depression will present differently in each individual due to their personality characteristics. The appellant's feelings of guilt were closely related to his personality. He always felt excessively responsible for other people's welfare (ts 53).
(h)Dr Wojnarowska agreed that the appellant's feelings of guilt were not a consequence of his major depressive episode, as they were part of his premorbid personality, but his feelings of guilt were exaggerated during his depressive episode (ts 53).
Dr Wojnarowska gave evidence in her re‑examination to the following effect:
(a)Dr Wojnarowska agreed that, despite the difficulty in retrospectively assessing the severity of a person's cognitive impairment because of a mental disorder, she had information available which allowed her to make a considered assessment of the severity of the appellant's impairment during the relevant period. When interviewed by Dr Wojnarowska, the appellant's insight into what had happened during the relevant period led Dr Wojnarowksa to believe that, at the time he committed the offence, his cognition was impaired (ts 54).
(b)Dr Wojnarowska agreed that, in addition to feelings of rumination and hopelessness, the appellant had issues with sleeplessness, fatigue, high anxiety, feelings of guilt and restlessness. Those were all characteristics of depression (ts 54). Dr Wojnarowska agreed that the presence of those characteristics in the period leading up to the offending indicated that the appellant's conduct during that period was more likely a consequence of his depression, rather than his personality traits (ts 55).
Findings in relation to the evidence of Dr Wojnarowska
At the hearing of the appeal it was accepted by the parties (correctly, in our opinion) that Dr Wojnarowska was a highly qualified and experienced consultant psychiatrist with expertise in the diagnosis of major depressive disorders.
We accept Dr Wojnarowska's evidence that at the time of the offending:
(a)The appellant was suffering from a major depressive episode.
(b)At the material time, the appellant's symptoms included increasing anxiety, poor sleep, ruminations and fatigue.
(c)At the material time, the appellant was incompetent or bordering on incompetency as a medical practitioner.
(d)At the material time, the appellant was self‑prescribing anti‑depressant medication. However, the appellant's dosage was inconsistent and his compliance with the medication was inconsistent.
(e)Despite his major depressive episode, the appellant knew that his conduct in prescribing insulin, for the purpose of ending EG's life at MG's request, was 'legally wrong'.
(f)At the material time, the major depressive episode clouded the appellant's ability to think properly as a medical practitioner. The appellant did not think that his action in prescribing the insulin was 'morally wrong'. The appellant decided that bringing about EG's death, having regard to her medical condition and prognosis and to the family's personal circumstances, was not 'morally wrong' because EG's death would reduce the suffering of other family members.
(g)The predominant reason why the appellant prescribed the insulin for the purpose of killing EG was his perception that EG's death would assist MG.
(h)The appellant's major depressive episode played a role in MG's personal problems becoming the appellant's personal problems.
(i)There was a connection between the appellant's major depressive episode, on the one hand, and his offending, on the other, in that his depression clouded his judgment and impaired his ability to recognise that prescribing insulin for the purpose of killing EG was not merely 'legally wrong', but also 'morally wrong'.
As we will explain, in all the circumstances of this case the connection between the appellant's major depressive episode, on the one hand, and his offending, on the other, does not significantly diminish his culpability for the offence of attempted murder. His major depressive episode at the relevant time is, however, an aspect of his personal circumstances and antecedents which, in combination, decrease to a moderate degree the extent to which he should be punished. General deterrence remains a relevant sentencing factor.
The relevance of the appellant's depression in the sentencing process
In Suleiman, Buss P (Mazza and Mitchell JJA agreeing) considered the relevance of an offender's mental illness or psychological difficulties in the sentencing process. It is convenient to reproduce the substance of what his Honour wrote in that case.
It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen;[15] Thompson v The Queen;[16] Krijestorac v The State of Western Australia;[17] Wheeler v The Queen [No 2];[18] Smith v The State of Western Australia;[19] The State of Western Australia v Khasay;[20] IEB v The State of Western Australia.[21]
[15] Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442.
[16] Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385.
[17] Krijestorac v The State of Western Australia [2010] WASCA 35.
[18] Wheeler v The Queen [No 2] [2010] WASCA 105.
[19] Smith v The State of Western Australia [2010] WASCA 176.
[20] The State of Western Australia v Khasay [2014] WASCA 58.
[21] IEB v The State of Western Australia [2015] WASCA 207.
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins;[22] Wheeler [No 2] [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72]; Phillips v The State of Western Australia.[23]
[22] R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA).
[23] Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).
In R v Henry,[24] Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].
See also R vWright;[25] Minehan v The Queen.[26]
[24] R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
[25] R vWright (1997) 93 A Crim R 48, 50 ‑ 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing).
[26] Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).
In Leach v The Queen,[27] Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert[28] that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].
[27] Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1.
[28] R v Engert (1995) 84 A Crim R 67.
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri[29] (14), adopted and emphasised by Gleeson CJ in Engert (71).
[29] R v Letteri (Unreported, NSWCCA, 18 March 1993).
The outcome of the appeal: should a different sentence have been imposed?
The maximum penalty for attempted murder, contrary to s 283(1) of the Code, is life imprisonment.
In TheState of Western Australia v Radovic,[30] Buss P, Mazza and Mitchell JJA observed:
Although all offences of attempted murder will, no doubt, be very serious, the degree of seriousness of the facts and circumstances of particular offending and the degree of mitigation revealed by the personal circumstances and antecedents of particular offenders will vary significantly. The sentences imposed for offences of attempted murder are therefore variable. There is no tariff or usual sentencing range.
[30] TheState of Western Australia v Radovic [2020] WASCA 46 [61].
In the present case, the appellant's offending was extremely serious.
The following features of the offending demonstrate its gravity:
(a)At the material time, the appellant was a general practitioner who practised medicine as one of a number of principals in his own practice. He occupied a position of great trust in relation to his patients. The appellant became acquainted with EG in the course of practising medicine. He was the family doctor for MG and BG and their children.
(b)The appellant used his knowledge, position and authority as a general practitioner to facilitate the offending. The breach of his professional duty was of the utmost seriousness.
(c)When MG asked the appellant about the most humane substance to inject EG with to end her life the appellant recommended insulin and explained that it was usually injected under the skin. The appellant therefore provided advice to MG in connection with the method of killing EG.
(d)By providing prescriptions for insulin, the appellant gave MG access to the substance she used later to attempt to kill EG.
(e)The appellant's actions were the product of a conscious decision. They were not spontaneous. He gave MG a prescription for insulin on 13 December 2021 and again on 5 January 2022.
(f)Between 13 December 2021 and 5 January 2022 the appellant had an opportunity to reflect upon his conduct. The result of this opportunity for reflection was that on 5 January 2022 the appellant gave MG another prescription for insulin.
(g)EG was an extremely vulnerable child with very significant medical impairments. The appellant knew of her extreme vulnerability. EG was in no position to defend herself against MG's actions. The appellant did not protect EG when he became aware of MG's intentions. Instead, the appellant facilitated MG's attempt to kill EG.
(h)After he gave the prescriptions for insulin to MG, the appellant made no effort to prevent MG from implementing her plan to kill EG. After he became aware that EG had been admitted to hospital, the appellant did not inform EG's treating doctors or the police about what had happened. By remaining silent, the appellant potentially jeopardised EG's recovery from the administration of the insulin and left EG at risk of further potential harm from MG.
Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and any aggravating and mitigating factors.
By s 6(3) of the Sentencing Act, the mandate in s 6(1) does not prevent the reduction of a sentence because of any mitigating factors. Section 8(1) provides that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
It is apparent from s 8(1) of the Sentencing Act that the statutory definition of a mitigating factor accommodates factors arising from:
(a)the facts and circumstances of the offence; and
(b)the personal circumstances and antecedents of the offender,
which, in the court's opinion, decrease the offender's culpability for the offence or decrease the extent to which the offender should be punished for the offence. See The State of Western Australia v Maxton.[31]
[31] The State of Western Australia v Maxton [2023] WASCA 174 [87] (Buss P, Mazza & Hall JJA).
Where there is a connection between an offender's mental illness or psychological difficulties, on the one hand, and his or her offending, on the other, whether and, if so, to what extent that connection decreases the offender's culpability for the offending depends upon the facts and circumstances of the particular case.
In the present case, the connection between the appellant's major depressive episode, on the one hand, and his offending, on the other, must be evaluated in the context of all of the relevant facts and circumstances. In particular, it is necessary to take into account the following:
(a)the appellant was a skilled and experienced medical practitioner;
(b)the appellant was the family doctor for MG and BG and their children;
(c)the appellant knew that he was suffering from depression;
(d)the appellant decided to self‑medicate rather than act on his practice manager's recommendation that he consult a psychiatrist; and
(e)the features of the offending which we have summarised at [90] above.
We are satisfied, after evaluating the appellant's major depressive episode and its connection with the offending in the context of all of the relevant facts and circumstances, that the connection between the major depressive episode and the offending does not significantly diminish the appellant's culpability for the offence of attempted murder. His
major depressive episode at the relevant time is, however, an aspect of his personal circumstances and antecedents which, in combination, decrease to a moderate degree the extent to which he should be punished. General deterrence remains a relevant sentencing factor.
There were a number of other mitigating factors which we have set out in the confidential schedule to these reasons.
In our opinion, the sentence of 5 years 6 months' imprisonment was commensurate with the seriousness of the offence.
We are satisfied, after considering the sentence imposed by the sentencing judge in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)the extreme vulnerability of EG; and
(d)all other relevant sentencing factors, including the appellant's personal circumstances and antecedents, general deterrence, the aggravating factors and the mitigating factors,
that the sentence was the product of a proper exercise by her Honour of her discretion.
No different sentence should have been imposed.
VANDONGEN JA:
I have had the considerable advantage of having read a draft of the joint reasons of Buss P and Mazza JA. I gratefully adopt their Honours' account of the relevant background. There is nothing that I would add to their comprehensive synopsis of the legal principles that are relevant to the proper determination of ground 1.
The following are my reasons for joining in the making of the orders referred to at [10] of the joint reasons.
Ground 1
The appellant appeared at a plea hearing on 19 December 2022. At that hearing, the prosecutor did not challenge Dr Wojnarowska's bare opinion, expressed in her original report of 24 August 2022, that
there was a causal connection between the appellant's major depressive episode and the offending. However, her Honour gave a clear indication to the appellant's counsel at that hearing that she was not inclined to accept Dr Wojnarowska's opinion on the basis that her reasoning process had not been properly exposed. As a result, the appellant's counsel sought, and was granted, an adjournment to 30 January 2023 to obtain an addendum report from Dr Wojnarowska.
Dr Wojnarowska prepared an addendum report, dated 26 January 2023. However, it appears from the transcript of the proceedings that took place on Monday, 30 January 2023, that her Honour was not provided with a copy of that report until late on the previous Friday, 27 January 2023.
In her addendum report, Dr Wojnarowska confirmed her opinion that there existed a causal connection between the appellant's depression and the offending, and she provided a brief explanation for that opinion. It is apparent from Dr Wojnarowska's addendum report that an academic article, entitled 'Depression and decision‑making capacity: a systematic review',[32] published in the BMC Medical Ethics journal in 2013, was a material factor in her reasoning process.
[32] Hinmarch T, Hotopf M and Owen G S, 'Depression and decision-making capacity for treatment or research: a systematic review' (2013) BMC Medical Ethics 14.
At the sentencing hearing on 30 January 2023, the appellant's counsel submitted that Dr Wojnarowska's addendum report 'confirmed her opinion that there is a direct connection between depression suffered by [the appellant] and his decision‑making in relation to the offending'.[33] As the joint reasons show (at [44]), the prosecutor initially declined her Honour's invitation to make any submissions at the hearing. However, when pressed, he conceded that although it was 'quite tenuous', the addendum report did establish that the appellant's depression had contributed to his offending conduct.[34]
[33] Sentencing ts 77 - 78.
[34] Sentencing ts 80.
At no time prior to, or at, the hearing on 30 January 2023 did her Honour give any indication that she was not minded to accept Dr Wojnarowska's opinion, the submissions that had been made on behalf of the appellant, or the prosecutor's concession that there was a relevant connection between the appellant's mental illness and the offence.
The sentencing hearing was then adjourned to 3 February 2023.
The sentencing judge's remarks, summarised in part at [48] of the joint reasons, demonstrate that although her Honour found that the appellant was suffering from depression at the time he committed the offence, she did not accept that it reduced his moral culpability. Her Honour's concluding remarks on that issue were as follows:[35]
The State made somewhat faint submissions regarding the tenuous nature of the link between [the appellant's] depression and [his] offending, and did not strongly take issue with Dr Wojnarowska's opinion.
However, having carefully considered the reports, and the lack of analysis as to how she formed her conclusions in her addendum report despite being specifically directed to the issue, I am not satisfied on the balance of probabilities that [his] depression was causally related to the offending, in the sense that I am not satisfied that it impaired [his] mental functioning to such an extent as to reduce the blameworthiness or culpability of [his] conduct.
However, I am satisfied that [the appellant was] suffering from depression, and the long hours [he was] putting into [his] role as a medical practitioner were highly detrimental to [his] mental state. The combination of [his] personality characteristics, [his] views about the pandemic's impacts on [his] patients, [his] views as to the 'politics' of medicine and [his] mental state provide an explanation as to how [the appellant] came to see [EG's] situation as hopeless, and how [he] came to overly empathise with her mother's perspective. (emphasis added)
[35] The State of Western Australia v Austin [2023] WASCSR 3 [93] - [95].
In my view, the appellant was denied procedural fairness in the course of the sentencing judge reaching a decision that she was not satisfied that the appellant's mental illness impaired his functioning to such an extent as to reduce his moral culpability for the offending.
Given the protracted nature of the appellant's sentencing, it is understandable why her Honour may have thought that she had already afforded procedural fairness to the appellant, including by giving his counsel the opportunity to obtain Dr Wojnarowska's addendum report. However, by the end of the sentencing hearing on 30 January 2023, her Honour had before her Dr Wojnarowska's unchallenged and uncontroverted opinion that the appellant's mental illness impaired his functioning and that it had a relevant connection to his offending. Further, the prosecutor had conceded that Dr Wojnarowska's opinion established that the appellant's depression had contributed to the offending (albeit only on the basis that the link between his mental illness and the offending was 'quite tenuous'[36]). In those circumstances, and where the sentencing judge did not give any prior indication that she was not minded to accept Dr Wojnarowska's expert opinion as expressed in both of her reports, when the appellant's counsel appeared at the sentencing hearing on 3 February 2023 he was entitled to proceed on the assumption that Dr Wojnarowska's addendum report had dispelled any difficulties the sentencing judge may previously have had with her opinion. At the time the appellant's counsel appeared before her Honour on 3 February 2023, it would have been reasonable for him to have formed the view that it was no longer necessary to persuade her Honour to accept Dr Wojnarowska's opinions on a material issue that required consideration, including by adducing any further evidence or by making further submissions.
[36] Sentencing ts 80.
However, by the time the sentencing judge came to deliver her sentencing remarks on 3 February 2023, she had clearly decided that she was not minded to accept Dr Wojnarowska's opinion. Specifically, her Honour had reached the view that she was not prepared to find that the appellant had established, on the balance of probabilities, and based on the evidence and the submissions that had been put before her at that time, that his mental illness was causally related to his offending. As her Honour's sentencing remarks show, one of the material reasons why she had decided not to accept Dr Wojnarowska's opinion was because she was not satisfied that a statement made in Dr Wojnarowska's addendum report accurately reflected the results reported in the academic article taken from the BMC Medical Ethics journal.
In these circumstances, the sentencing judge was required to inform the appellant's counsel that she had reached those views before commencing her sentencing remarks on 3 February 2023. She was then required to give counsel the opportunity to persuade her to reach different views, including by adducing further evidence and by making additional submissions. Had that process occurred, there was a realistic possibility of a different outcome. That is at least because there was a realistic possibility that Dr Wojnarowska, a trained and experienced forensic psychiatrist, would have been able to explain to her Honour's satisfaction, with the assistance of counsel's submissions, the part the academic article played in her reaching her opinions. It follows that there was a material denial of procedural fairness.[37]
[37] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [30] ‑ [33] (Kiefel CJ, Keane & Gleeson JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] ‑ [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson & Jagot JJ), [38] (Beech‑Jones J).
I would therefore grant leave to appeal in relation to ground 1.
Ground 2
I agree with Buss P and Mazza JA that it is unnecessary to consider ground 2 having regard to the court's conclusion in relation to ground 1. I also note that the appellant's counsel advised the court at the hearing of the appeal on 23 October 2023 that the appellant did not 'persist with ground 2'.[38] In those circumstances, it is appropriate for this court to simply refuse leave to appeal in relation to ground 2.
[38] Appeal ts 4.
The outcome of the appeal
Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
I agree that no different sentence should be imposed and that, as a consequence, the appeal should be dismissed. Before explaining my reasoning for reaching that conclusion, it is necessary to make some findings of fact based on Dr Wojnarowska's expert reports and on the evidence that she gave at the hearing of the appeal.
The evidence of Dr Wojnarowska
Dr Wojnarowska's reports
Dr Wojnarowska did not clearly articulate why she had formed the opinion that there was a causal association between the appellant's major depressive episode and the commission of the offence, in either her original report or in her later addendum report. The closest that those reports came to explaining the reasoning process that had been adopted was Dr Wojnarowska's answer to a question about how the appellant's mental state may have impacted on his decision making at the time of the offending. In answering that question, Dr Wojnarowska referred to the academic article discussed earlier in these reasons in support of a general proposition that depression can affect certain cognitive abilities. She went on to say:[39]
[The appellant's] views about [the] public health system, Covid vaccination requirements and even his poor professional boundaries are undoubtedly related to his personality characteristics. However, in my view, the fact that he crossed the most important boundary in [the] medical profession (First Do No Harm) indicates that his judgement at that time was severely impaired. (original emphasis)
[39] Addendum psychiatric report, 26 January 2023, par 7.
I would not have found that the appellant had established, on the balance of probabilities, that there was a causal connection between any mental illness and the offending based only on Dr Wojnarowska's written reports.
Evidence given at the hearing of the appeal
At the appeal hearing on 23 October 2023, the appellant was put on notice that if the court was of the view that a ground of appeal was made out, and was considering whether a different sentence should have been imposed, as required by s 31(4) of the Criminal Appeals Act, Dr Wojnarowska would need to give evidence to persuade the court that there was a causal connection between any mental illness and the offending. Dr Wojnarowska subsequently gave evidence at the appeal hearing on 7 November 2023.
I am grateful to Buss P and Mazza JA for their detailed summary of Dr Wojnarowska's evidence. I would make the following findings based on Dr Wojnarowska's evidence, including her written reports and oral evidence.
The appellant was suffering from a major depressive episode at the time he committed the offence. Enormous pressure had been placed on the appellant because he was seeing large numbers of patients on a daily basis, and he worked very long hours as a result. This led to him experiencing increased levels of anxiety, poor sleep, ruminations at night about his patients, and fatigue in the mornings. The appellant had, on occasions separate from the facts of this offending, crossed the lines of proper professional conduct and he had breached his duty to his patients.
Dr Wojnarowska gave evidence that the appellant was either not competent as a medical practitioner at the relevant time, or he was bordering on incompetency. However, I did not understand Dr Wojnarowska to be saying that he was incompetent in all areas of his practice as a medical practitioner. In my view, it was not possible for her to reach a general view about the appellant's competency as a medical practitioner having regard to the limited materials to which she had access. In any event, I understood Dr Wojnarowska to be saying that she was aware of specific occasions on which the appellant had crossed professional lines and that had those matters been referred to the Medical Board, the appellant would have faced some form of regulatory action.
The appellant had self‑prescribed one of the most commonly prescribed antidepressant medications. However, as Dr Wojnarowska struggled to obtain a clear history from the appellant about when he first started to use that medication, I am not able to make any findings about how long the appellant had been self‑prescribing. I am, however, prepared to find that although the appellant did at some stage increase the dosage of that medication to 'one of the maximum doses',[40] he continued to struggle with the symptoms of his depression. Further, while the appellant reduced the dosage of the medication about two months before he committed the offence, and there were periods of time when he was not medicated at all, I cannot make any findings about the exact dates on which this occurred. The most that can be concluded is that the appellant's use of medication to control his depression was inconsistent prior to the commission of the offence.
[40] Appeal ts 27.
The appellant knew that it was legally wrong to prescribe insulin for it to be used by MG to end EG's life, despite suffering from depression at the time of the offence. However, I accept, based on Dr Wojnarowska's evidence, that the appellant's depression adversely affected, or 'clouded', his ability to appreciate that this was morally wrong at the time of the offence. In that regard, Dr Wojnarowska gave the following evidence:[41]
[APPELLANT'S COUNSEL]: So then I suppose in terms of assessing two hypotheses that arise here, one which is that his decisions to prescribe were not substantially influenced by his mental disorder, and the other being that there was a significant influence that this disorder was having on his decision-making, why is it that you come then to the conclusion that when it comes to prescribing this medication, it's the second hypothesis and not the former?---So what happened - how - are you asking what is the - really the link, the causal link between his depression and his decision?
Yes. Correct?---So depression affects predominantly executive functioning which is a set of mental processes that assist us in daily life functioning, helps us to inhibit certain behaviours, helps us to navigate, plan and organise. In his - so executive dysfunction is closely associated with poor judgment due to problems with attentional deficits, and so the person would have - would struggle with attention to detail and inhibit their behaviours. Now, I think in - in [the appellant's] case the ‑ the cognitive judgment that is placed in our executive function system was overridden by his emotional state, which clearly clouded his ability to think as a doctor at that point in time. (emphasis added)
[41] Appeal ts 29.
Dr Wojnarowska also gave the following evidence in answer to questions from the bench:[42]
BUSS P: … In this case, there was the child and the mother who were [the appellant's] patients, I think?---Yes.
And it appears that despite his major depression, [the appellant] knew that what he was doing in prescribing insulin twice for the purpose of ending the life of the child at the mother's request was wrong?---Yes.
And [the appellant's] prescribing of the insulin for that purpose was not only seriously unethical for a medical practitioner but was also seriously criminal behaviour for anyone to have done. I can understand, I think, from your evidence that the major depression compromised [the appellant's] competent discharge of his duties as a medical practitioner?---Yes.
The next step for us is was his major depression a cause or did it have a link to his criminal behaviour, which was prescribing the insulin twice for the purpose of ending the child's life? And I understood from what you said in answers to questions from [the appellant's counsel] that in your opinion the major depression caused executive dysfunction on the part of [the appellant] and that clouded his ability to think properly as a doctor?---Yes.
I suppose what I'm thinking about is, well, I can understand that in relation to his duties as a doctor, but in terms of serious criminal behaviour, namely at the request of the mother, deciding what drugs he could prescribe in order to end the child's life does seem to have involved a distortion of his moral compass. In other words, he knew that what he was doing was wrong, but what I don't quite understand, I don't think, is how the depression impacted if at all on this moral compass or on his ability to do what he knew was morally right, as opposed to morally wrong. Are you able to help me with that?---I will try, your Honour. So in my view, he knew it was legally wrong. In my view, at that time he did not think it was morally wrong, as he adopted [a] utilitarian approach. So comparing, weighing the welfare/suffering of two individuals or, say, a child and the family, he has chosen the family. That was his logic in that, and therefore, that moral reasoning was not present. It was, but it was wrongly attributed to [a] utilitarian approach. Like, do we allow one person to die or do we allow five people to be killed? It was an experiment the (indistinct).
And in this instance, was - do we bring about the death of one family member to reduce the suffering- - -?---Suffering.
- - - of other members of the family?---Yes. That's how I understand his moral reasoning at that time. (emphasis added)
[42] Appeal ts 31 - 32.
In my view, Dr Wojnarowska's evidence that the appellant 'did not think it was morally wrong' should not be understood literally, particularly when regard is had to the rest of her evidence in which she sought to articulate the reasons why she was of the view that there was a connection between the appellant's mental illness and the commission of the offence. The overall effect of Dr Wojnarowska's evidence was not that the appellant's mental illness had eliminated his capacity to appreciate the moral wrongness of his actions, but only that it had, to some degree, adversely affected his executive functioning, resulting in a clouding of his thoughts.
Having considered all of Dr Wojnarowska's evidence, including her two reports, I accept that the appellant's mental illness 'clouded' his ability to think. This is most clearly explained in the following exchange that took place between the bench and Dr Wojnarowska:[43]
BUSS P: … Just one question I have, Doctor, if you could help me with this: you mentioned that a doctor can lose proper boundaries with a patient. Can that involve a doctor seeing the patient's personal problems as the doctor's personal problems, requiring a solution by the doctor?---Exactly. That's - that's what - if I - I didn't express it, but it's exactly how I feel what's happening so - what happened in this case, taking on other people's problems as your own, and that's how it clouds them, the judgment and the ability to behave in a professional manner. That's why we've got obviously such strict boundaries in our professional lives.
Yes, and is it your opinion that in this case the major depressive illness, which you retrospectively diagnosed in [the appellant], played a role in the personal problems of the mother becoming [the appellant's] personal problems and requiring him to resolve those problems in a way that went beyond the objective approach in a proper doctor‑patient relationship?---That was my belief, your Honour. (emphasis added)
[43] Appeal ts 51.
Should a different sentence have been imposed?
The maximum penalty for the offence committed by the appellant was life imprisonment. That penalty demonstrates how seriously the offence of attempted murder is regarded by Parliament. Further, the various factors that are set out at [90] and at [95] of the joint reasons illustrate the undoubted gravity of the appellant's offending. I accept, however, that the appellant is entitled to be afforded significant credit for the various mitigating factors referred to in the confidential schedule to the joint reasons.
The appellant submits that Dr Wojnarowska's evidence, including her reports, establishes that his moral culpability for the offence of attempted murder is reduced. This submission depends upon whether the evidence that is now before this court establishes that the appellant's major depressive episode had the effect of impairing his ability to exercise appropriate judgment, to make calm and rational choices, to think clearly, or to appreciate the wrongfulness of his act.[44]
[44] Krijestorac v The State of Western Australia [2010] WASCA 35 [18], citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [26].
In my view, the appellant's submission should be accepted.
As I have already indicated, I accept Dr Wojnarowska's evidence that at the time the appellant committed the offence his thought processes were impaired (or 'clouded'), at least to some degree, by a mental illness, namely a major depressive episode. This impairment had some effect on his ability to exercise appropriate judgment and to appreciate the wrongfulness of his act when he decided to help resolve MG's issues with caring for her daughter in a seriously unlawful way, including when he committed the offence. Accordingly, the appellant's moral culpability, or moral blameworthiness, is reduced, at least to some extent.
However, as the cases referred to in the joint reasons demonstrate, the actual extent to which a mental illness has an effect on an offender's moral culpability depends on the nature, effect and severity of the particular mental illness at the time the offence was committed.[45] Further, the extent to which any reduction in an offender's moral culpability will translate into a reduction in the sentence imposed on the offender depends upon the part it plays in considering the weight to be attached to the various sentencing factors, such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation, and in the process of undertaking instinctive synthesis.[46]
[45] See the cases referred to in the joint reasons at [82] and [83].
[46] DS v The Queen; DM v The Queen [2022] NSWCCA 156; (2022) 109 NSWLR 82 [92] - [93].
Dr Wojnarowska accepted in cross-examination that it was very difficult to retrospectively assess the severity of the appellant's depression at the time he prescribed the insulin on 5 January 2022.[47] Accordingly, there is a significant evidentiary barrier that stands in the way of the appellant establishing the nature, effect and severity of his depression at the time he committed the offence. Further, my ability to make findings about the severity of the appellant's depression, and the effect it had on his capacity to appreciate the wrongfulness of his actions at the critical time, is complicated by the fact that the appellant was self-medicating with anti‑depressant medication around the time he committed the offence. My understanding of Dr Wojnarowska's evidence about the effect that this medication was actually having on the appellant at the relevant time is that it is uncertain.[48]
[47] Appeal ts 36, 42 - 43, 50.
[48] Appeal ts 43 - 46.
The sentencing judge also made several unchallenged findings of fact that, in my view, clearly demonstrate that the degree to which the appellant's thought processes were impaired varied from time to time. In that regard, her Honour found:
(a)In late 2021, when MG told the appellant that she had tried to smother EG with a pillow with cling film on it, 'but she just wouldn't die', the appellant discussed the possibility of MG engaging in counselling.[49]
(b)Later, in December 2021, when the appellant gave MG a prescription for insulin for the first time, he thought about contacting the Department of Child Protection. Further, he told police that after he gave MG the prescription, he 'started to feel uneasy about what [he] had done, and to feel emotional and remorseful. [He] thought about self-harm and ruminated over what [he] had done. But, [he] did not take any steps to rectify the situation.'[50]
(c)On 28 January 2022, after MG had administered the insulin to her daughter, EG's father called the appellant and told him that MG had been arrested for attempting to kill EG. EG's father said that EG had high insulin levels and asked the appellant if he knew anything about it. The appellant then lied to EG's father and said that he believed that it was possibly related to EG's disease. The appellant told police that after this call he 'had a sinking feeling and began to feel unwell and left work early to go home.'[51]
[49] Austin [12].
[50] Austin [20].
[51] Austin [35].
There is a further difficulty in reaching findings about the actual extent to which depression played a part in clouding the appellant's thoughts at the critical time. This is because, as Dr Wojnarowska said in her evidence, the appellant had 'premorbid personality characteristics' that made him more vulnerable to accepting responsibility for the welfare of other people and being unable to put boundaries in place,[52] and that these personality characteristics were 'exaggerated' by the presence of depression.[53] The fact that the appellant's personality played an important role in his decision to assist MG in attempting to kill her daughter can be seen in the following evidence that Dr Wojnarowska gave in answer to questions from the bench:[54]
In the paragraph that's immediately before the paragraph I've just taken you to in the DSM-5, it talks about those things, but in a completely different context?---As it is very - as - as I pointed out, it's just the - just the manual. The manual cannot refer to each and every possibility, as depression has different flavour colours and presentation in each individual, because of our personality characteristics. It does not occur in a vacuum. But his feelings of guilt was very much closely related to his personality, premorbid personality, where he always felt excessively responsible for other people's welfare.
Are you saying that those feelings of guilt are as a consequence of a major depressive episode?---No, what I was saying, that they were exaggerated during the illness, but he - premorbidly he had that type of a personality. Yes, I - I - I absolutely agree with that. (emphasis added)
[52] Appeal ts 26.
[53] Appeal ts 31, 47, 54 - 55.
[54] Appeal ts 53.
In addition to these difficulties that present in making an assessment of the degree to which depression clouded the appellant's thinking, and in evaluating the appellant's moral culpability, it is important to note that there is no suggestion that the appellant was suffering from any psychotic symptoms (in which he was out of touch with reality) at the time he prescribed the insulin on 5 January 2022.[55] The appellant well understood that what he was doing was legally wrong,[56] and he appreciated that the insulin would cause EG's death if it was administered.[57]
[55] Appeal ts 23, 30.
[56] Appeal ts 32.
[57] Appeal ts 37.
In these circumstances, I am prepared to find that the appellant's depression had some effect on his ability to appreciate that what he was doing was morally wrong at the time he prescribed the insulin on 5 January 2022, and then during the period of time that then elapsed until MG administered the insulin to her daughter. However, the appellant has failed to demonstrate, on the balance of probabilities, that it had any significant effect on his capacity to appreciate that it was morally wrong. It follows that I am not prepared to find that the appellant's moral culpability for the offending is reduced to any significant extent.
In any event, any reduction in culpability on account of the effects of depression is, in my view, counterbalanced by the fact that the appellant knew that he was suffering from depression, and as a skilled and experienced medical practitioner, he was far better placed than most to understand the potential effects of that mental illness on his ability to think and function as a doctor. Despite the fact his practice manager recommended that he consult a psychiatrist, the appellant did not deal with his depression in a responsible way. Instead, he decided to self‑medicate, and then only on an inconsistent basis.
Further, even if the appellant's moral culpability is reduced to some degree on account of the effect that his mental illness had on his capacity to appreciate the moral wrongfulness of his actions, it does not follow that the appellant is not an appropriate vehicle for general deterrence. In my view, the facts of this case are more than capable of serving as an example that this sort of conduct will be treated very seriously by the courts, notwithstanding the fact that the appellant was suffering from a mental illness at the time. Further, the effects of the appellant's mental illness does not render the retributive effect and denunciatory aspect of a sentence inappropriate.
Any findings about the appellant's moral culpability are of little significance in the context of an assessment of his prospects of rehabilitation and the need for specific deterrence. This is because, as the sentencing judge found, the appellant is unlikely to have the same opportunity to commit an offence of this nature again.[58]
[58] Austin [97] - [100].
The offence that the appellant committed was of the utmost gravity. He deliberately assisted MG in her attempt to take the life of her extremely vulnerable daughter. The appellant's actions constituted a breach of the trust reposed in him by the community and they represented an egregious departure from his responsibilities as a medical practitioner. The appellant's criminal participation in MG's attempt to kill her daughter on 17 January 2022 was not isolated, as he had previously provided MG with an insulin prescription for that purpose. The appellant also had, but did not take, several opportunities to dissuade MG, and to take steps to protect EG from harm.
Accordingly, I find that the appellant's moral culpability was reduced, though I am not satisfied that it was reduced to any significant extent. However, any reduction in moral culpability on account of the appellant's depression is counterbalanced by the fact that the appellant did not deal with his mental illness in an appropriate manner as an experienced and skilled doctor ought to have. Further, notwithstanding any reduction in moral culpability, there remains a need to impose a sentence that reflects the need for general deterrence, retribution and denunciation.
After taking into account all relevant sentencing factors, including those referred to at [99] of the joint reasons, I agree with Buss P and Mazza JA that no different sentence should have been imposed. The sentence that was imposed by the sentencing judge appropriately represents the product of a proper exercise of discretion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
12 APRIL 2024
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