Da-Pra v R; R v Da-Pra - [2014] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
Hearing dates: 3 October 2013
Decision date: 03 October 2014
Before: Emmett JA at [1];
R A Hulme J and Bellew J at [174];
Decision:
1. Leave to appeal against conviction granted and appeal allowed in part.
2. Quash the conviction for the manslaughter of Gervasio Da-Pra and in lieu, enter a verdict of not guilty on the grounds of mental illness. Order that Renzo Da-Pra be detained in strict custody until released by due process of law.
3. Crown appeal against sentence allowed and sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed. In lieu, the respondent is sentenced as follows:
Count 3 (infliction of grievous bodily harm with intent to murder VW): sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 20 December 2009 with the non-parole period expiring on 19 June 2017 and the total term expiring on 19 December 2019.
Count 2 (murder of EW): sentenced to imprisonment comprising a non-parole period of 13 years and a balance of the term of the sentence of 7 years. The sentence will date from 20 December 2014 with the non-parole period expiring on 19 December 2027 and the total term expiring on 19 December 2034.

Catchwords:
CRIMINAL LAW - appeal against conviction - mental illness - murder- manslaughter - jury did not completely reject unanimous psychiatric evidence - trial judge provided clear direction relating to unanimous psychiatric evidence - not necessary to determine whether verdicts are unreasonable or cannot be supported when s 7(4) Criminal Appeal Act is raised - jury ought to have found that defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra - open to jury to reject defences in respect of killing of EW and wounding of VW
CRIMINAL LAW - Crown appeal against sentence - trial judge did not fail to make factual findings in relation to the murder - no definitive finding of objective seriousness regarding counts 2 and 3 but not amounting to error - specific deterrence warranted more than little weight - little weight attributed to assistance to authorities - sentences for EW and VW demonstrably inadequate
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Cvetkovic v R [2013] NSWCCA 66
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Jones v The Queen [1997] HCA 12; 191 CLR 439
M v The Queen [1994] HCA 63; 181 CLR 487
Mencarious v R [2014] NSWCCA 104
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Peiris v R [2014] NSWCCA 58
R v Amacha [2010] NSWCCA 180
R v Baker [2000] NSWCCA 85
R v Da-Pra [2012] NSWSC 607
R v Derbin [2000] NSWCCA 361
R v Iusi Afele [2014] NSWSC 366
R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20
R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Porter [1933] HCA 1; 55 CLR 182
R v Pratt [2009] NSWSC 1108
R v Rodriguez [2010] NSWSC 198
R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep)
R v Thomas (Court of Criminal Appeal (NSW) 28 May 1996, unrep)
R v Wilson [2005] NSWCCA 219
R v XX [2009] NSWCCA 115; 195 A Crim R 38
RJT v R [2012] NSWCCA 280; 218 A Crim R 490
SKA v The Queen [2011] HCA 13; 243 CLR 400
Taylor v R (1978) 45 FLR 343; 22 ALR 599
Veen v The Queen [No 2] [1988] HCA 14; (1987-1988) 164 CLR 465
Wong & Leung v The Queen [2001] HCA 64; 207 CLR 584
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Renzo Da-Pra (Appellant)
Regina (Respondent)
Representation: Counsel:
Ms C Loukas SC (Appellant)
Ms S Dowling SC (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/10416
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of anything that identifies a child. For this reason the child victim and her grandmother are referred to by initials.
Decision under appeal

Citation:

R v Da-Pra [2012] NSWSC 607

Date of Decision:

2012-06-04 00:00:00

Before:

R S Hulme J

File Number(s):

2010/10416

Judgment

EMMETT JA: On 21 May 2012, after an eight-day trial before R S Hulme J and a jury, Mr Renzo Da-Pra was found guilty of:

the manslaughter of his father, Mr Gervasio Da-Pra;
causing grievous bodily harm to Mrs VW with intent to murder; and
the murder of Miss EW.

All three offences were committed on Friday, 18 December 2009. There are two appeals. Mr Da-Pra appeals against his conviction, while the Crown appeals against the sentence imposed. I shall refer to Mr Da-Pra as the appellant.

The essential issue at the trial was whether the defences of mental illness or substantial impairment were available in relation to any or all of the three offences. The defence of mental illness, or insanity, is a complete defence, while the defence of substantial impairment is a partial defence that reduces murder to manslaughter. The jury, in convicting the appellant of the three offences, found that the appellant was not entitled to the mental illness defence in relation to any of the three offences. The appellant had been charged with the murder of his father. The jury found him guilty of manslaughter as an alternative to murder on the basis of substantial impairment. The jury rejected the substantial impairment defence in relation to the offence involving EW.

By notice of appeal filed on 28 June 2013, the appellant appeals from the convictions on three grounds. The first ground is that RS Hulme J erred in failing to direct the jury, in relation to the count involving Gervasio Da-Pra, that they must not reject unanimous medical evidence in the absence of other evidence displacing or throwing doubt upon it. The appellant says that the medical evidence in relation to the offence involving his father was unanimous that the defence of mental illness was established.

The second ground is that all three verdicts were unreasonable or insupportable, having regard to the evidence. The appellant contends that the jury should have returned special verdicts that he was not guilty by reason of mental illness. That would have triggered s 39(1) of the Mental Health (Forensic Provisions) Act1990 (NSW) (the Mental Health Act), empowering the Court to order that the appellant be detained in such place and in such manner as the Court thinks fit until released by due process of law, or such other order as the Court considers appropriate.

Finally, the appellant contends that this Court should exercise the power conferred by s 7(4) of the Criminal Appeal Act1912 (NSW) (the Appeal Act). Under s 7(4), if on an appeal it appears to the Court that although the appellant committed the act charged, the appellant was mentally ill so as not to be responsible according to law for the appellant's action at the time when the act was done, the Court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order as the Court considers appropriate.

The language of s 7(4) of the Appeal Act and s 39(1) of the Mental Health Act are similar. There is therefore some overlap between the appellant's contention that the verdicts were unreasonable and his contention that this Court should exercise the power conferred by s 7(4). If the Court were disposed to exercise that power, the other grounds of appeal would fall away.

On 4 June 2012, R S Hulme J sentenced the appellant to a total effective term of imprisonment of 20 years from 20 December 2009, expiring on 19 December 2029, with an aggregate non-parole period of 15 years. The appellant will be eligible for release on parole on 19 December 2024. By notice of appeal filed on 15 June 2012, the Crown appeals under s 5D of the Appeal Act against the sentences imposed by R S Hulme J. In essence, the Crown contends that the sentences imposed in relation to the offences involving EW and VW were manifestly inadequate. The Crown's sentence appeal in relation to a conviction would fall away if the Court were disposed to exercise the power conferred by s 7(4) of the Appeal Act in relation to that conviction.

The Conviction Appeal

In the light of the contention that the Court should exercise the power conferred by s 7(4), it will be necessary to consider the psychiatric evidence in some detail. Before considering the psychiatric evidence, it is desirable to state the relevant legal principles, about which there is no dispute, and say something about the facts that gave rise to the charges against the appellant.

Legal Principles

Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, formerly known as insanity, it must be proved on the balance of probabilities that when committing the acts alleged to constitute the offence, the accused was labouring under such a defect of reason, as a result of a disease of the mind, as not to know the nature and quality of his acts or, if he did know it, that he did not know that what he was doing was wrong. A person does not know that what he is doing is wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some modest degree of calmness in relation to the moral quality of what he is doing (R v Porter [1933] HCA 1; 55 CLR 182 at 189-190).

The law requires that, at the relevant time, the state of mind of an accused must have been one of disease, disorder, or disturbance arising from some medical condition. That condition must result in the function of the reason, memory or understanding of the accused being thrown into a state of derangement or disorder of the capacity to reason such as would prevent the accused from knowing what he was doing, in that he did not know the physical nature or quality of his acts, or from knowing that those acts were wrong according to the ordinary standards of reasonable people in the community (R v Pratt [2009] NSWSC 1108 at [19]-[21]).

It is possible for an accused to be suffering from a disease of the mind but still know that what he was doing in committing an offence was wrong, such that he will be legally responsible for it. In these proceedings, it was common ground, both at trial and on appeal, that at the time of the offences the appellant suffered from schizophrenia. It was also common ground, at trial and on appeal, that the appellant knew the nature and quality of his acts when he committed the three offences. Thus, the central issue at trial and on appeal was whether at the time of the offences the appellant had a defect of reason in the legal sense, such that he should not be held responsible for committing the three offences because he did not know or was unable to realise that what he was doing in committing the offences was wrong.

Although medical evidence is not essential to prove the defence of mental illness, it is very much the practice that expert medical opinion evidence is adduced on that issue in criminal courts in New South Wales (R v Rodriguez [2010] NSWSC 198 at [45]). While juries are not bound to accept and to act upon such evidence, they are not entitled to disregard such evidence capriciously. However, it is open to a jury to reject unanimous medical evidence where other evidence casts doubt upon it. Where the expert opinion is not challenged and no other evidence casts doubt upon it, the trial judge should direct the jury that they should not reject it (Taylor v R (1978) 45 FLR 343; 22 ALR 599 at 608). However, where the factual basis for the expert opinion evidence is incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not required (R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep)).

The Facts

The appellant had been in a motorcycle or "bikie" club between the ages of 21 and 29. At the age of 27, he was bashed by a rival gang, who threatened to harm him if they ever saw him again. For some time, he had no fixed place of abode and travelled between New South Wales and Queensland, staying with friends and family. At the time of the offences, the appellant was 45 years old. His parents lived at Wetherill Park. VW, then 77 years old, and her granddaughter, EW, then 12 years old, lived nearby.

On the afternoon of Thursday 17 December 2009, the appellant went to his parents' house and told them about his concerns that unknown people were out to harm them. He had had delusions for some time involving a belief that he and his family were being pursued by members of the bikie group with which he had been associated, including "Boris", the president of the bikie group.

The appellant stayed the night of 17 December 2009 at his brother's house. At about 7.30am on the next morning, Friday 18 December 2009, he drove to his parents' house at Wetherill Park. His father was at home alone. His mother had gone out shopping. At some point, he attacked his father in the garage. The appellant knocked his father to the ground and inflicted forceful blows to his neck and head, either with a weapon or by unarmed physical force. Gervasio Da-Pra died as a direct result of blunt force neck injuries. Other significant injuries included bruising to his face, fractures to two bones at the base of his nose, a fracture to the front of the sixth rib and a loosening of the joint between the ribs and the sternum.

After killing his father, the appellant placed his father's body in the boot of his father's car and drove it to the nearby Stocklands Mall shopping centre (the shopping centre). He parked the car in the car park, locked it, and returned to his parents' house.

There was evidence that a computer hard drive was missing from a table in the garage of his parents' house. There was also evidence of damage to a security screen door at that house. The Crown case was that the appellant took the hard drive and damaged the door to create the appearance that his parents' house had been broken into and that property had been stolen.

Sometime after 12.15pm on 18 December 2009, the appellant went to the Ws' house (the W residence), near his parents' house. He was armed with a large hunting knife. VW and EW were inside the house. The appellant knocked on the front door and spoke to VW. He told her that his car had broken down and that he wanted to phone his father. VW felt uneasy and did not want to let him into the house as he looked nervous and agitated. Instead, she offered him the use of her mobile phone. However, the appellant pushed his way inside the house, forcing VW back from the front door into the kitchen. He grabbed her by the arm as she struggled and struck her a number of times on her face with his hands and fists. She lost consciousness and fell to the ground. The appellant then cut her throat with the hunting knife, causing wounds to her throat and severing her trachea. Her larynx and anterior jugular veins were completely transected and her left internal jugular vein and the vasavesorum of the left carotid artery were partially transected.

While VW was being punched, EW was standing next to the dining table in the kitchen area. The appellant then attacked EW, who suffered extensive bruising to her lips and chin that was unlikely to have been caused by a single blow. She suffered a fracture to her skull and other bruising in that area. That could have had a number of causes, including falling to the floor. She also suffered patterned bruising to her upper chest. The appellant then sliced EW's throat twice, causing lacerations that killed her almost instantly. Her death was a direct result of the injuries to her neck. One cut extended through the back of her mouth to her spine. The wound included four shallow "tails" into the adjacent skin, suggesting a sawing motion of the implement that caused the injuries. Blood spatter indicated that EW was supine at the time her throat was cut.

After the attack on EW and VW, the appellant went upstairs and disarranged VW's bedroom and substantially ransacked the house. He also damaged the outside window screens and the phone connection in the dining room. He then left the house, leaving EW dead and VW unconscious and bleeding heavily from the throat.

Telephone records indicated that the attack occurred before 1.30pm, since VW was eventually able to telephone the emergency number and ambulance officers arrived at the house shortly after 1.30pm. They found EW dead on the floor in the family room near the kitchen and VW in a side doorway between the entrance hall and the lounge room. VW was admitted to the intensive care unit of Westmead Hospital suffering a fractured eye socket, a fractured jaw, a severed trachea and slash wounds to her throat.

After leaving the W residence, the appellant returned to his brother's house and spoke about people being after him. The appellant's sister-in-law, Mrs Juanita Da-Pra, saw him at her house. He gave her a paper flower on which he had written her family's names. He told her that if someone knocked on the door, she should hand them the flower and "see if it is enough". Juanita Da-Pra described the appellant as "paranoid".

The appellant then left his brother's house and drove to the Central Coast, to the home of Ms Elizabeth Austin and Mr Ronald Feeney. He borrowed Ms Austin's phone and made a telephone call at 3.33pm to Juanita Da-Pra and said "don't lose the flower". The appellant stayed with Mr Feeney for two to three hours, during which time he told Mr Feeney that he was "in some trouble". Mr Feeney described him as "quiet and a bit fidgety". Eventually, the appellant changed his clothes and drove away. He spent the evening of Saturday 19 December 2009 at a camping area. He said that he disposed of the hunting knife while there.

Early on the morning of Sunday 20 December 2009, the appellant doused himself with petrol and attended at the emergency department of Fairfield District Hospital. He handed the nursing staff a notepad containing a handwritten note and asked them to pass it on to the police. The pad smelt of petrol and the note contained admissions by the appellant that he had killed his father and EW. It appears that at the time of writing the note, he believed he had also killed VW. The note included the following:

I was once told (threatened) that my parents and myself were going to suffer terrible death. I had a time limit where I could have made their passing easier, but at the end of the day the result was going to be the same. My friend Danny knew the problem I was facing, but was in no way going to help me kill my parents nor me. A friend of his which he thought was worth approaching ... was not only the slight bit interested, he wished me luck, but would not participate either. I was left with having to do it myself. After killing my father, I was looking for a way to create a diversion, so I went to the neighbours, I was intending to only threaten them, but between what I had just done and what I had to do, I lost all control and in the frenzy become [sic] a person that even I believe [sic] should not exist. I did have a choice of saving my mother as, I was going to die, but now my only mission in life is to make it home and end my life to hopefully show how sorry I am for what took place. In trying to avoid something bad, I have only succeeded to make things so much worse, and what's worse, 2 more innocent victims were added to my list of dead. What I would have done not to have this task at all. Words are unable to explain how I regret my wrongdoings but I can only hope that my actions tonight will at least bring some closure and or comfort to the people, familys [sic] and especially the innocent victims that I regrettfully [sic] involved. I must now get home and try to complete the task that was once set, and pray that in doing so, will end this tragic event. At least for some.

Another note that the appellant wrote somewhat earlier, but that was found some time after his arrest, referred to the imagined threats to his family. That note said:

A friend (Danny) tried to contact someone he knew, but the more I explained, neither he nor his friend were willing to help, as I would have preferred my parents to die more humanely. That left me no choice but to do it myself. I met someone in a pub in Milperra which decided would give me a hand however while I was cleaning up at my parents, Chuck decided to visit next door, and I was unable to prevent what happened. Innocent people from their fate. I was intending on hiding, but the guilt and remorse I feel for those people has brought me to one conclusion. I'm hoping that my death will bring about some closure, and hopefully show how sorry I truly am. [strike out in original]

After leaving the first note with the nursing staff at Fairfield Hospital, the appellant returned to his car, which was parked outside the hospital, and then set fire to the petrol. As police approached the car, it became engulfed in flames. After extinguishing the flames, the police removed the appellant from the car.

When pulled from the car, the appellant spoke to one of the attending police officers. He admitted killing his father and attacking his neighbours. He was asked why he had done so and replied that he did not mean to. He was asked why he had killed EW and responded:

It wasn't meant to happen like that. After I did my Dad, I went over there to get an alibi and things got out of hand. I panicked. Then the knife was in my hand and I just starting slashing.

The police took the appellant to hospital, where he received treatment for serious burns to his head, hands and arms. He was transferred to Liverpool Hospital, where he was seen by Dr Emilie Tahtouh, who asked him why he had set himself on fire. He replied, "I may have killed my father and my neighbour". When asked by Dr Tahtouh why he did that he said, "they told me that if I didn't hurt them they would hurt me".

The appellant was transferred to Concord Hospital and on 29 December 2009 commenced anti-psychotic medication. On 4 January 2010, he was interviewed by the psychiatric team at Concord Hospital and gave them a history of 15 years of psychotic illness. He said that the offences occurred because people did not take his concerns seriously. He gave no details of the offences.

On 19 February 2010, the appellant was transferred to Long Bay Prison Hospital, where he spoke to a nurse, Mr Brian Owen, who was the psychiatric registrar. He told Mr Owen that he was aware that he had been charged and that he had "knocked down two" and "seriously hurt another". He said that he did not get along with his father and that they fought all the time and he ended up having a big fight with his father when the incident occurred. He told Mr Owen that he decided he needed money and went next door. He said the little girl screamed and ran past him and he used the knife on her. He told Mr Owen that he "didn't want to kill her".

On 20 February 2010, the appellant was interviewed by Dr Goh, a psychiatric registrar at Long Bay Prison Hospital. He told Dr Goh that his father would not listen to his warning about an imminent raid on the house and that he stabbed his father. He told Dr Goh that his father was a difficult man and that their "tempers would flare up". He told Dr Goh that he thought he would go next door, "pretend that a home invasion had occurred there, take money from the house and then leave the city". He said that the girl ran past him while he was holding the knife and he was really sorry it happened.

More than 12 months elapsed before the appellant gave any further account of the offences. The subsequent accounts were given to three psychiatrists, Dr Olav Nielssen, Dr Stephen Allnutt and Dr Sharon Reutens. I shall refer to those accounts when dealing with their evidence. It is significant that in those accounts, the appellant referred to hallucinations about bikies and about a blue car while on his way to the W residence. Both of those matters were delusions that he later said were in his mind and that, in causing him to fear for his life and the lives of his family members, were prime reasons while in his delusional state for committing the offences against EW and VW. The bikies were, on the appellant's later accounts, a critical component, perhaps even the single most significant component, of his delusions.

There was no mention of either of those matters in either of the handwritten notes, in the conversations at the time of his arrest or in the interviews by medical staff at Liverpool or Concord Hospitals or at Long Bay Prison Hospital. The closest the appellant came to mentioning a threat from bikies when attempting to recount the events involving the offences, before speaking to the psychiatrists some 15 months later, was when he told Dr Tahtouh that "[t]hey told me that if I didn't hurt them they would hurt me" and when he told Dr Goh on 20 February 2010 that on the day of the offences he feared an imminent raid on his parents' house. Both of those comments might have been referable to a threat from bikies. There was no mention at all, however, of a blue car being after him while on his way to the W residence.

The Psychiatric Opinion Evidence

The appellant gave accounts of the offences to the three psychiatrists. Those accounts were foundational to the psychiatrists' opinions, since the psychiatrists accepted the veracity of the appellant's accounts in order to draw inferences as to the appellant's state of mind at the time. On the basis of those inferences, the psychiatrists expressed opinions as to whether the full defence of mental illness or insanity was available in relation to the killing of Gervasio Da-Pra and EW and the attack on VW. Also on the basis of inferences founded on an acceptance of the veracity of the appellant's accounts, the psychiatrists expressed opinions on whether the partial defence of substantial impairment was available in relation to the two offences to which it could possibly be available, namely, the two homicides. Thus, all the psychiatric opinion evidence was based on a broad acceptance of the veracity of the accounts that the appellant gave them.

At his trial, the appellant contended that he should be found not guilty, in relation to all three charges, by reason of mental illness. Alternatively, in relation to the two murder counts, he contended that he was substantially impaired by abnormality of mind and that manslaughter was the appropriate verdict. The issue at the trial in respect of all three counts was the appellant's mental state at the time of the alleged offences. The appellant's mental state was the subject of psychiatric evidence at the trial by Dr Nielssen, Dr Allnutt and Dr Reutens.

Dr Allnutt's Evidence

Dr Allnutt was asked by the Crown to assess some of the evidence and to interview the appellant. The Crown provided him with a large number of documents, including statements of witnesses and the appellant's handwritten notes. Dr Allnutt conducted a clinical examination on 23 June 2011 and a subsequent examination in September 2011. He provided three reports of his examinations of the appellant. He gave oral evidence as to the contents of his reports.

Dr Allnutt said that the appellant presented as cooperative and fairly well-groomed. His speech was clear, coherent, soft and monotonous. He was clearly anxious and upset during the interview, though his affect was restricted. He spoke in a clear and coherent manner and maintained good eye contact. He did not manifest behaviour suggestive of either the effect of psychiatric medication or neurological illness. He did not manifest significant intellectual impairment. His capacity for insight and judgment was adequate. He was not manifesting significant active symptoms of psychosis. He did, however, provide a history of cannabis use for two to three years prior to the offences, as well as relatively significant substance abuse over a long period consistent with probable substance abuse disorder.

Dr Allnutt said that the symptoms that the appellant had described himself as having prior to the offences would be consistent with a systematised persecutory delusional system, probably due to paranoid schizophrenia. He noted that the appellant was raised in a relatively loving and supportive family environment. He appeared to have been relatively dependent on his parents for a number of years. He had apparently been able to pursue gainful employment until he suffered a motor vehicle accident in about 1990. After the accident, he was on a disability support pension, which likely increased his dependence on his parents.

Dr Allnutt considered that the appellant manifested some evidence of dysfunctional personality traits but that he would not, at that stage, conclude that he had a personality disorder. Dr Allnutt considered that the appellant's most significant stressor related to the criminal charges against him and that his functioning appeared to be reasonable.

Dr Allnutt considered that the symptoms were consistent with a persecutory delusional belief and that there would be reasonable grounds for concluding that the appellant was suffering from a psychosis and thus a disease of the mind when the offences occurred. He became increasingly anxious that if he went to the police, more people would die and Boris would kill his family, so he did not go to the police and subsequently saw no options for himself, feeling trapped. He formed the view that people were coming for his family and believed that time was running out for him and he needed to act to protect his mother.

Dr Allnutt expressed the opinion that, when the appellant killed his father, he was suffering a disease of the mind of a nature and severity that it severely impacted on his capacity to make rational decisions with regard to his father. He was thus experiencing a defect of reason. Dr Allnutt considered that it was unlikely that the defect of reason was such that it significantly compromised the appellant's capacity to know the nature and quality of his actions. Dr Allnutt said in evidence-in-chief that while the appellant was suffering that defect of reason, he nonetheless appreciated the nature and quality of the physical act in relation to the death of his father. He said that the appellant understood that if he hit, strangled or stabbed someone, he could potentially seriously harm, if not kill, the person. On that version, he intended to kill his father.

Dr Allnutt considered that, given that the appellant incorporated his father and other family members, particularly his mother, into a delusional system, he would have been compromised in his capacity to make rational decisions in relation to both of them. It appears that he had irrationally determined, because of his delusions of persecution, that he had no option but to kill his father in order to save his mother and that, having regard to his delusional world, that was the better option and the right thing to do. Dr Allnutt expressed the opinion that in those circumstances, the appellant would have been unable to reason about the matter of wrongfulness in relation to his behaviour towards his father with a reasonable degree of composure. Dr Allnutt was of the opinion that in regard to the behaviour leading to the death of his father, the defence of mental illness was available.

Dr Allnutt said that not wanting to be arrested and put into gaol was consistent with the appellant's understanding that the authorities would think that what he had done was wrong. Intending to create an alibi or divert attention from himself, as the perpetrator of his father's death, was also consistent with such an understanding that what he had done would be viewed as being wrong. Dr Allnutt said that the appellant's inability to reason as to wrongness was such that he felt it was morally right to do what he did because it would save his mother.

Dr Allnutt formed the opinion that, if it were accepted that, when the appellant entered the W residence, he believed he had been followed and that a person whom he believed had come from the car had pushed him into the house, then it would follow that the appellant had incorporated the neighbours into his delusion. However, that would have to be accepted notwithstanding that the appellant's account to Dr Allnutt was at odds with other of the appellant's accounts of what happened on the day and specifically at odds with other of the appellant's accounts about what was in his mind at the time of entering the W residence, inconsistencies of which Dr Allnutt was aware. One inconsistent aspect was that on other occasions, the appellant had suggested that he intended to enter the W residence to commit a robbery.

Dr Allnutt said that, if the appellant had incorporated the neighbours into the delusion, by viewing them as associated in some way with those whom he believed were attacking him, that would affect his ability to know or rationalise that what he was doing in relation to the neighbours was wrong. However, Dr Allnutt said that his opinion could vary if there was some other rational explanation for the way the appellant acted at the W residence, such as an intention to try to divert attention from what he had done to his father. Dr Allnutt agreed that his opinion "depends on what facts are accepted or assumed for this purpose".

Dr Allnutt saw the appellant again on 22 September 2011, when he was provided with some further detail. The purpose of the interview was to clarify the appellant's thought processes at the time of his killing of EW and attacking her grandmother.

Dr Allnutt believed that it would be reasonable to conclude that, on balance, the appellant had "a defence of mental illness" in relation to the charge concerning VW because his disease of the mind caused him to be unable to reason about the matter, and the wrongfulness of attacking EW, with a reasonable degree of sense and composure as a person with a rational mind would. Dr Allnutt said that, on balance, he considered that the appellant "would have available to him a defence of mental illness" in relation to the charges concerning all three victims.

Dr Allnutt's opinion was based on his accepting the truth of the account that the appellant gave him and on his drawing inferences from that account about the appellant's symptoms. Even accepting the truth of the appellant's account given to him, Dr Allnutt said that it was marginal as to whether the appellant would have the defence of mental illness available to him, "in the sense that he would have had probably capacity to think about it", though he was also "pre-occupied by his delusional experience that he never applied that thought".

Dr Allnutt was subsequently asked to provide a third report and to consider scenarios different from the appellant's account. That is to say, he was asked to assume different factual bases on which he was to base his opinion.

First, he was asked to assume a scenario in which the appellant attended the W residence to divert suspicion from himself in relation to his father's death and that he did that by trying to make it appear to be a home invasion. Included in his thinking was the intention of obtaining money so that he could leave the area and not be arrested by authorities for his father's death. He was asked to assume that the attack on the neighbours was consistent with that intention and that the appellant also took steps afterwards to disturb things in the W residence to make it appear that a home invasion had taken place. He was also asked to assume that the appellant had inflicted significant injuries to both EW and VW other than cutting their throats, suggesting that the appellant's attacks on them were more than impulsive or "momentary slashing type attacks". He was asked to assume that it may be possible to reject the appellant's assertion that he had believed he had been followed into the W residence by persons who had made threats and to reject the assertion that he mistook EW for an attacker or someone out to harm or kill him.

Dr Allnutt said that even under the scenario created by those assumptions, if it were accepted that the appellant was experiencing psychotic symptoms in the form of a delusional belief that he or his family were under threat and thus experiencing a disease of the mind, then he would be regarded as having a defect of reason. This was because psychosis is a mental condition that by its nature causes a defect of reasoning. The issue would then be whether that defect of reasoning significantly affected his capacity to know that his actions in relation to EW and VW were wrong. Dr Allnutt expressed the view that it was unlikely, under that scenario, that the appellant's defect of reason was of a nature and severity that it significantly impaired his capacity to know the nature and consequence of his actions.

Dr Allnutt said that when the appellant killed his father, he was of the delusional belief that he and his family were under threat and that his persecutors were following him. There would be a propensity to continue to hold that belief up to the time of the offences involving EW and VW. He was aware when he entered the W residence that what he had done to his father was wrong, in the sense that he understood it to have been wrong in the eyes of others. But Dr Allnutt was of the opinion that the evidence suggested that the appellant remained of the view that he had done the right thing in a moral sense. That is the basis for his view that, on balance, the appellant had available a defence of mental illness in relation to his father. He considered that the difficulty in reasoning about wrongfulness would have persisted at the time that he entered the W residence. His reasoning capacity, at least as it pertained to the death of his father, remained impaired by his ongoing delusional beliefs. Thus, he was still vulnerable to impaired reasoning at the time of the offences involving EW and VW.

Dr Allnutt was of the opinion, however, that the evidence of thoughts, actions and feelings of guilt and regret in relation to EW and VW suggested some degree of awareness of wrongfulness. Dr Allnutt did not believe that a defence of mental illness would be available if the appellant had attended the W residence to divert suspicion from himself in relation to his father's death and to obtain money so he could leave the area and not be arrested by authorities for his father's death. The defence would not be available if the appellant took steps to make it appear that there had been a home invasion and inflicted significant injuries on both victims besides the slashing of their throats such that the attack was more than momentary, and if one rejected the assertion that at the time, the appellant believed that he was being followed and that he mistook EW to be an attacker out to kill him.

While the appellant was probably anxious, emotionally aroused and paranoid about his situation, Dr Allnutt considered that the motive was rational, namely, to avoid recognition, detection and arrest by police. The behaviour was planned. Since he would not be regarded as having incorporated the victims directly into his delusional belief system, he was likely to have known that his actions were legally wrong and also morally wrong, having regard to his strong sense of guilt afterwards.

Thus, Dr Allnutt considered that on this scenario, involving acceptance of facts different from those that the appellant had provided, the appellant likely retained the capacity to understand events as they pertained to EW and VW, to judge right from wrong in regard to them and to control his actions. The defence of substantial impairment would then be unlikely to be available. Thus, Dr Allnutt expressed the opinion that on the alternative scenario, a defence of mental illness was not available to the appellant in relation to VW and neither a defence of mental illness nor a defence of substantial impairment was available to him in relation to EW.

Dr Allnutt then dealt with further variations of the above scenario apparently suggested by Dr Allnutt himself. The variations involved making the assumptions mentioned above, but altering what the appellant's motive was when he entered the W residence. On the third variation, which was referred to as the "third scenario", Dr Allnutt made the additional assumption "that killing the occupants was not part of his initial plan at the time he entered, that it was only after he entered the [W residence] that the idea of the attacking or killing [of] them occurred". Dr Allnutt said on that "third scenario", the issue was less clear because the defence of substantial impairment may also be applicable in relation to EW as "his mental state could have impaired his capacity to control his actions because he could have acted impulsively in a panic due to his delusions".

Dr Allnutt was asked to assume that VW and EW were struck and fell to the ground and that their throats were cut while unconscious on the ground. He accepted that once they were on the ground, the appellant would have known that they were his neighbours. Dr Allnutt said that if they were knocked to the ground and incapacitated, and he then cut their throats, his opinion was that the appellant knew the nature and quality of the physical acts, including the cutting of their throats. He said that if the appellant entered the house intending initially not to attack someone, but then did nevertheless strike them through some reaction, it was possible that he could have realised what he had done and therefore decided to kill them rather than leave witnesses as to what he had done. That is to say, he did it to avoid detection and arrest in relation to the attacks on the Ws and to get away.

Dr Nielssen's evidence

Dr Nielssen assessed the appellant on 17 March 2011 and prepared a report dated 5 April 2011. Dr Nielssen had regard to a number of documents, including a transcript of the appellant's criminal history and statements by VW, Mr Mario Da-Pra and Mr Carlo Da-Pra. He also had a copy of the appellant's note. A statement by Juanita Da-Pra and photographs and reports relating to the crime scenes were also made available to him. He also had access to the three reports by Dr Allnutt, as well as the various accounts that Mr Da-Pra gave to medical staff at Concord Hospital. Dr Nielssen gave oral evidence as to the contents of his report.

Dr Nielssen's conclusion, after his interview and examination, was that the appellant's mental state was one of chronic schizophrenia and substance abuse disorder, rather than a substance-induced psychotic illness. That was because of the chronic nature of his delusional ideas, the persistence of symptoms for some time after he stopped using drugs, and what Dr Nielssen thought to be the impoverished nature of his emotional responses or thought content. Dr Nielssen thought that they were more consistent with chronic mental illness than with a transient or temporary drug-induced state. He said that the vivid auditory hallucinations are more typical of schizophrenia than drug-induced conditions. Dr Nielssen described schizophrenia as a mental illness that typically manifests with auditory hallucinations, disorganised thinking, impairment in emotional regulation, especially early in the illness, and delusional beliefs or fixed false beliefs, often of a bizarre nature. Over the long term, there is chronic impairment in intellectual function and often a loss of volition or emotional responses.

Dr Nielssen said that he believed that the appellant had the defence of mental illness open to him in relation to his father's death. Dr Nielssen expressed the opinion that the appellant had a disease of the mind in the form of chronic schizophrenia that gave rise to a defect of reasoning and, specifically, to a frightening, delusional belief that he had to kill his father to save his mother. He thought that the appellant probably recognised the nature and quality of his act in a physical sense. He knew, in a sense, that he was killing another human being but did not recognise that his actions were morally wrong, as he believed he was killing his father for altruistic purposes and because his family was in danger. Dr Nielssen said that the appellant's acutely disorganised thinking and emotional arousal affected his capacity to reason with any calmness or composure about the alternative courses of action available to him.

Dr Nielssen said that he thought that the appellant had the defence of mental illness available to him in respect of the subsequent attacks upon EW and VW for the same reasons. Dr Nielssen said that he was still acutely mentally ill in that he had a delusional belief that he was still in danger. The immediate trigger was his belief that he was being attacked, possibly by people who had followed him to the W residence. More importantly, his capacity to reason in a calm and logical way about what to do was grossly impaired by an acute schizophrenic illness. In reaching that opinion, Dr Nielssen said that he was aware of the evidence that the appellant had moved various objects in VW's bedroom and of the appellant's account that he had attended at the W residence with the intention of creating an alibi. He did not consider that that intention in any way undermined his opinion.

Dr Nielssen was asked about Dr Allnutt's opinion concerning the defence of mental illness in relation to two of the factual scenarios described by Dr Allnutt, involving the variations as to what was in the appellant's mind as he was entering the W residence. Dr Nielssen said that, on the face of it, it was a purposeless and unmotivated crime that did not have a rational or malicious intent. He said that it was more a horrible and tragic accident, where a mentally ill person came into the house affected by frightening delusions. He did not know of any information that suggested that there was a rational or malicious motive for the offences. On the other hand, he was quite confident, based on the information available to him, that the appellant had been psychotic for some time before the offences. He considered that he was psychotic at the time he killed his father and psychotic at the time he set fire to himself. He was psychotic for some weeks or months after he was arrested.

Dr Nielssen considered that the appellant was affected by delusions throughout the period of the offences. He observed that the specific content of the delusions changed or evolved according to the content of further hallucinations and the appellant's interpretation of events in his surroundings, such as the passing of a blue car, that confirmed or supported his delusional beliefs. He considered that they were present throughout that period and that the appellant's state was such that it was impossible for him to reason with composure about the origin of his symptoms or the likely consequences of his actions.

In response to a question from the trial judge, Dr Nielssen agreed that if someone was suffering from a delusion in the morning, the person would not be able to get it out of his mind at all during the day. If it is a fixed false belief held with the sort of intensity that creates fear, then it is likely to be present all the time. Dr Nielssen said that someone who has such delusions in effect has them throughout waking hours, without pause or break, for days at a time. He said that during acute episodes, the delusions tend to be present all the time. When asked what he meant by "acute episodes", Dr Nielssen said that schizophrenia tends to be an episodic condition, in that it responds to treatment. After treatment, most people will have some remission from symptoms.

Dr Nielssen said that, in his opinion, the appellant was mentally ill when he committed the offences on EW and VW, based on the appellant's history and corroborative information about the onset, nature and course of his psychotic illness. The effect of a severe psychotic illness would be to deprive the appellant of the capacity to think in a calm and logical way as to what he was doing. He maintained that opinion notwithstanding the appellant's account that he went to the W residence with a view to effect some kind of alibi or to get money. He confirmed that the evidence that the appellant rummaged around in VW's bedroom and effected some kind of damage to the outside of the W residence, so as to create the impression that others may have been responsible for the attack on the Ws and the crime of his father's death, did not have any impact on his opinion in relation to the attack on EW and VW.

In cross-examination, Dr Nielssen agreed that the appellant understood that the community saw the taking of a life as wrong, although in certain circumstances there may be a justification for taking a life, such as when he believed that he was saving the lives of his mother and other members of his family by doing so. Dr Nielssen agreed that the appellant would have known that the taking of a life was legally wrong, reflecting community standards that it is wrong.

Dr Nielssen agreed that the delusions concerning his father's death did not incorporate his neighbours. Even at the door of the W residence, the Ws were not part of the delusion. He chose to go to the W residence, understanding that they were neighbours. Dr Nielssen agreed that the appellant would not go to a place where he thought there were bikies. Dr Nielssen agreed that, in relation to all three offences, the appellant knew the physical nature of his acts. The question was whether he was able to reason with a moderate degree of sensibility and rationality in respect of his actions.

Dr Nielssen was asked, given the fact that he thought that the appellant's capacity for logical and rational thinking was quite impaired, whether deciding to create an alibi and move his father's body to give him more time get away demonstrated rational thought. He responded that it was rational behaviour when described like that, but that the whole of the appellant's behaviour was affected by his belief that he was being pursued and was in danger. Dr Nielssen's understanding was that the appellant believed that he was being watched the whole time and was experiencing auditory hallucinations throughout the day in question and on previous days.

Dr Nielssen accepted that when the appellant entered the W residence, he knew it was wrong to take a life. However, he considered that the appellant believed he was in mortal danger and reacted to defend himself. In that way, his delusional belief affected his behaviour. Dr Nielssen said that an acute mental illness prevents people from reasoning in a calm and rational way because they are often acutely frightened and have grossly disorganised thinking.

Dr Nielssen accepted that his opinion was based on the appellant's account given to him more than 15 months after the offences and that the appellant had previously given accounts to others. Dr Nielssen was asked about the note that the appellant gave to the staff at Fairfield Hospital. Dr Nielssen's attention was drawn to the fact that while the note mentioned the appellant's delusion that he had to act in relation to threats to protect his mother, it made no mention of being followed on his way to the W residence. Rather, the appellant said that he was intending only to threaten the Ws but that, between what he had just done to his father and what he had to do, he lost all control in the frenzy and became a person that even he believed should not exist. Dr Nielssen would not agree with the proposition that there was a difference between the appellant's explanation in relation to his father and his explanation in relation to the Ws. Dr Nielssen said that he believed that the delusional beliefs were operating throughout that time.

Dr Nielssen's attention was then directed to the appellant's earlier note in which he blamed someone else for what happened to the Ws. Dr Nielssen agreed that the implication from both notes was that the appellant realised that he had taken the lives of two innocent people with no excuse and needed to point the finger at someone else. Nevertheless, Dr Nielssen considered that the actions were consistent with being acutely unwell.

Dr Nielssen's attention was drawn to the note in which the appellant said that after killing his father he was looking for a way to create a diversion so he went to the neighbours, and that he was intending only to threaten them but between what he had just done and what he had to do he lost all control in the frenzy and became a person that even he believed should not exist. Dr Nielssen agreed that that reason was different from the one the appellant had given to him as to why he went to the W residence.

Dr Nielssen also confirmed that he had not been provided with Mr Owens's statement or the account that the appellant gave to Dr Goh. Dr Nielssen did not see a rational purpose in someone who may have committed a crime trying to divert attention away from himself and from what had happened by killing two other people. He considered that it was bizarre to commit two further homicides to make up for the first one that he was trying to conceal. He did not consider that that was logical at all. He did not consider that the appellant's other accounts made any difference to his final opinion. He considered that the appellant was in an acutely psychotic state and that the further offences involving EW and VW were the result of his disturbed state of mind.

Dr Allnutt's variations in relation to the appellant's mental state before entering the W residence did not make Dr Nielssen change his opinion. The problem that he had with those variations was that they assumed that the appellant had lucid intervals, yet the appellant had had an episode of insanity that had lasted for months before the offences and that had lasted for months afterwards. He did not consider that one could reduce the events in question to rational actions based on a rational mind. On the other hand, he conceded that there were elements of rationality in the appellant's actions, such as placing his father's body in the boot of the car to reduce his mother's stress and trying to set up an alibi or distraction. Dr Nielssen said that those matters did not alter his opinion, since people who are psychotic can still have a rational understanding of the real world even while they remain affected by their delusional beliefs.

Dr Nielssen accepted that if the appellant's delusions contributed to his attack on EW and VW, it must have been because of a thought process that occurred after he entered the house. He accepted that once VW lost consciousness and fell to the ground after receiving blows to the head, the appellant would have recognised that she was no longer a threat. Similarly, he accepted that once EW was struck and fell to the ground, the appellant would have recognised that she was not a threat. However, he qualified his agreement by saying that that was so "in a rational state of mind".

Dr Nielssen agreed that there was evidence that suggested that the appellant understood before entering the W residence that it was wrong to take a life. However, Dr Nielssen said that while a person in a rational state would recognise that the Ws were not a threat, to cut their throats while they were on the ground indicated that the appellant must have been in an acute and irrational state. The acts themselves suggested that he was not in a rational state.

In re-examination, Dr Nielssen reiterated that the appellant was deprived of the capacity for completely rational thinking because of the overall effect of his acute mental illness. While individual actions might appear to have been rational, his overall motivation and capacity for logical thinking was affected by his mental illness. Even after being made aware of the appellant's various accounts, Dr Nielssen remained of the view that the appellant had been mentally ill. He considered that at the time of the offences, the appellant was unable to reason about the wrongfulness of his actions and that his subsequent remorse was not inconsistent with that conclusion. Rather, it was an appreciation of what had happened. One can understand why the jury might have been skeptical about the maintenance of that opinion.

Dr Reutens's Evidence

Dr Reutens considered the opinions of Dr Allnutt and Dr Nielssen and interviewed the appellant on 8 May 2012. Dr Reutens had available a statement of facts in relation to the three offences, the appellant's criminal history, copies of statements by Mario Da-Pra, Carlo Da-Pra, Elsa Da-Pra and Juanita Da-Pra, as well as a copy of a statement by VW. She also had copies of medical notes of 19 and 20 February from Concord Hospital and a copy of the appellant's note, a crime scene report and post-mortem reports. Dr Reutens gave oral evidence.

Dr Reutens considered that the appellant's symptoms were consistent with chronic schizophrenia. Thus, the beliefs about Boris and the bikies were delusions that, coupled with his auditory hallucinations, were consistent with a psychiatric disorder.

Dr Reutens expressed the opinion that the beliefs recounted by the appellant constituted a delusion that, together with the auditory hallucination of Boris, was consistent with the diagnosis of a psychotic disorder. She said that the chronic nature of his psychotic disorder and its persistence in hospital, in the absence of ongoing substance use, was consistent with a diagnosis of chronic schizophrenia. Dr Reutens expressed the opinion that when the appellant killed his father, he was suffering from a mental illness, namely chronic schizophrenia, which is a disease of the mind. That disease caused a defect of reason: as a result of his delusion that his father had to be killed to prevent more people, particularly his mother, from being killed, he was unable to make a rational decision. However, she considered that he was likely to have known the nature of his actions. Dr Reutens said that because the delusions involved a belief in the inevitability of the death of family and friends, which could only be averted by the appellant killing his father and himself, it was her opinion that he was impaired in his ability to judge the rightness or wrongness of the act with any reasonable sense of composure and reason.

Dr Reutens said the appellant's decision that he required an alibi so that he could get away, and his decision to stage a home invasion or to call his father and leave a message, indicated that after he had killed his father, he knew it was legally wrong. However, in his mind, he was morally justified because he believed that it would avert more deaths. Dr Reutens considered that that indicated that he was unable to judge rationally the rightness or wrongness of his act. In her opinion, the appellant had a defence of mental illness available to him for the offence of killing his father.

Dr Reutens expressed the opinion that at the time of the offences involving EW and VW, the appellant was suffering from a psychotic illness, namely schizophrenia, which produced a defect of reasoning such that he was incapable of rational thought. She considered that it was unlikely that it significantly compromised his capacity to know the nature and quality of his actions. However, based on the history that the appellant provided her, she was of the opinion that he had incorporated his neighbours into his delusion. That is to say, he believed that they were the people who he believed were following him so that he was acting in self-defence. She said he was unable to reason with any degree of composure as to the rightness or wrongness of the act because he believed he was acting in self-defence, was unable to think rationally due to his psychotic illness and was in a state of arousal after he had just killed his father. Therefore, she believed he had available to him the defence of mental illness.

Dr Reutens also considered that the appellant would have the defence of substantial impairment by abnormality of mind available to him in relation to both killings because at the time of both sets of offences, he was suffering from an abnormality of mind, namely schizophrenia, which impaired his ability to appraise rationally the nature of the acts and which impaired his ability to reason in a logical manner. However, Dr Reutens concluded that the appellant also had the defence of mental illness open to him for all of the three charges, because he was suffering from schizophrenia manifesting in persecutory delusions and auditory hallucinations. That disorder of mind affected his ability to appraise the events with any degree of rationality. He was also grossly impaired in his ability to reason logically. He was unable to determine the rightness or wrongfulness of his actions because he was acting on the basis of delusions.

Dr Reutens confirmed that in coming to her conclusions, she had been provided with information concerning the damage to the flyscreens thought to have been done by the appellant. She was also aware of the evidence of various objects being moved in VW's bedroom.

In the course of cross-examination, Dr Reutens said that the appellant's disease of the mind did not render him incapable of any rational thought, in that he still maintained the ability to do learnt acts, that is procedural memory, but it affected processes that required thinking, namely logic. It would also affect his ability to contain himself and not act impulsively. People who are psychotic can behave fairly normally and function in a way that does not bring a great deal of attention to themselves, even if in other areas their thinking is quite impaired.

Dr Reutens agreed that the appellant exhibited rational thought in placing his father's body in the car and cleaning up the blood in the garage, irrespective of whether he did that to prevent distress to his mother or to buy himself time to get away. She also accepted that he was thinking rationally in knowing that the police, not the bikies, would now be after him for killing his father and in not wanting to go to gaol or to kill himself. They were rational thoughts. However, Dr Reutens said, the rational thought of not wanting to go to gaol was based on the delusion that he would be killed in gaol. She considered that they were rational thoughts produced by an irrational mind. The higher-order and more complex thoughts are harder to carry out. She agreed that the appellant's attempt to establish an alibi by going next door indicated higher-order thinking. She said that rationality was not a dichotomous variable: some people are grossly irrational in all aspects, while others have rationality to a degree. However, as the degree of planning or the degree of complexity of an action increases, the irrationality starts to become more apparent.

Dr Reutens agreed that when the appellant was in the W residence, he considered them neighbours right up to the time that he felt he was pushed in the back. She said that at that stage, he had incorporated them into his delusion that the people in the car chasing him were now in the house and he had to defend himself. She agreed that that was only for a very short period of time, since once the screaming stopped, he realised that they were his neighbours once again.

Dr Reutens was asked about the fact that VW was lying unconscious on the ground after being struck when the appellant cut her throat and about the fact that the evidence showed that EW's throat was also cut when she was lying supine on the ground. Dr Reutens was asked to comment on why the appellant did not understand at that point when he went to cut their throats while they, a 12-year-old girl and an elderly woman, were lying defenceless on the ground, that they were the neighbours whom he had recognised as such when he had entered the house. Dr Reutens thought that it was a very impulsive overreaction and that it was difficult to know how quickly in succession the events had happened. If VW had fallen and he had immediately cut her throat, that would be an impulsive action: anything that moved would be perceived as the attacker and it was best just to kill them. However, if VW was lying on the ground and he approached her, the likelihood that he was acting impulsively would be lower. Dr Reutens said that it was a momentary action, but agreed that two people having their throats cut would have taken more time and was not just momentary.

Dr Reutens was asked to consider the possibility that the appellant had attacked the Ws because he was concerned that his efforts to create an alibi were undermined by the fact that he had struck VW since if EW escaped the house, she could alert the authorities. Dr Reutens accepted that as a possibility, but believed that the appellant's reactions were also impulsive and aroused, and that he was acting without thinking rationally.

Dr Reutens said that if the attack on the Ws were a momentary slashing, it would go towards a defence of mental illness. If it were something more deliberate, it would suggest that he was not acting impulsively in a highly aroused state such that he was unable to judge the rightness or wrongness of the act. Then the defence of mental illness would, on the balance of probabilities, be less likely to be made out. Dr Reutens thought, on the balance of probabilities, that at the time when the acts were actually committed, he might not have been able to judge the rightness or wrongness with a reasonable sense of composure and reason. However, shortly afterwards, when the screaming stopped, he could. Dr Reutens said that going from one to the other suggests that the availability of the defence moves down in probability.

In re-examination, Dr Reutens was asked to assume that the appellant had intended to use his knife to inflict grievous bodily harm. She said that that proposition did not undermine her diagnosis of psychosis. She expressed the view that the factual scenarios put forward by the Crown did not affect her opinion that, on the balance of probabilities, the appellant was mentally ill at the relevant time. Having read the post-mortem reports and having considered the severity of the attacks, Dr Reutens nevertheless concluded, on the balance of probabilities, that the appellant was not acting with a moderate sense of composure. She was of the view that the appellant had overreacted to perceived or actual provocation, in circumstances where his emotional and cognitive responses were impaired by his disease of the mind. Again, one can understand why the jury might have been skeptical about that opinion.

Ground 1: Direction as to Expert Evidence

By reason of Rule 4 of the Criminal Appeal Rules, the appellant requires leave to raise ground 1 since it was not raised at the trial. Leave to appeal should be granted. However, for the reasons that follow, the ground should be rejected.

The issue is whether the appellant had available to him the defence of mental illness or substantial impairment, on which he bore the onus of proof on the balance of probabilities. The evidence did not support a finding that the appellant did not know the nature or quality of his act in killing his father. Accordingly, there was a single issue in relation to the defence of mental illness. The issue was whether he had the capacity to understand that his actions were wrong and the capacity to reason, with some modest degree of calmness, in relation to the moral quality of what he was doing.

Evidence on that single issue was led from the three physiatrists. Where expert evidence is not challenged and there is no other evidence that casts doubt upon it, the trial judge should direct the jury that they should not reject it. On the other hand, where the factual basis for the opinion may be incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not necessary.

Each of the psychiatrists based opinions on a factual substratum consisting of the following:

the appellant's description of his state of mind before, during and after he killed his father;
statements from people to whom the appellant spoke after killing his father;
statements from people with whom the appellant interacted before and after killing his father;
the appellant's notes;
VW's statement;
crime scene evidence; and
the statements of the other psychiatrists.

The appellant's first full account of what happened was to Dr Nielssen in March 2010, after he had decided to plead not guilty by reason of mental illness. In his initial interview with Mr Owens, the nurse, he said that he did not get along with his father and that they had had a big fight before the offence occurred. There was no reference to bikies. That account was similar to the one the appellant gave Dr Goh on 20 February 2010. On the other hand, the appellant told Dr Tahtouh on 20 December 2009 that "they told me that if I didn't hurt them they would hurt me".

Dr Allnutt referred in cross-examination to the possibility that the appellant may have given an account of events that was more palatable than the truth. Dr Nielssen agreed that a person's ability to explain conduct while in a psychotic state depends upon the detail of the person's memory, the amount the person is willing to disclose and the honesty of that disclosure. Dr Nielssen agreed that the appellant's account was a significant matter upon which he relied in forming his opinion.

In his summing up, the trial judge told the jury that they should pay close attention to each expert's opinion and to the underlying facts upon which each opinion was based, in order to decide whether to accept the opinion evidence. His Honour directed the jury, in orthodox terms, to the effect that they would need very good reasons not to accept an opinion about which all the experts agree and which was in their field of expertise. His Honour also gave the jury his own opinion on the availability of the defence of mental illness in relation to the killing of Gervasio Da-Pra.

The present case was not one where there was a danger that the jury, unless warned, might fail to appreciate the real meaning of the opinion evidence and might assess the appellant's conduct by attributing to him the kind of reasoning that a person without mental illness might employ. Clearly enough, the jury accepted the opinion evidence that when he killed his father, the appellant was suffering from an abnormality of the mind arising from an underlying condition that substantially impaired his capacity to judge whether his actions were right or wrong. That must follow from the verdict of manslaughter rather than murder.

In the present case, there was evidence that cast doubt on the opinions expressed by the psychiatrists. The appellant's accounts of his actions on the day in question were unreliable, thus casting doubt on the assumptions made by them. There was other evidence capable of displacing the psychiatric opinion evidence and throwing doubt upon it, in circumstances where the opinion evidence was based on the appellant's self-serving statements and his accounts were shown to be unreliable. Accordingly, it was not necessary in the present case for the trial judge to direct the jury that they must not reject unanimous medical evidence. There was no error on the part of the trial judge and the first ground of appeal should be rejected.

Grounds 2 and 3: Unreasonable Verdicts and Section 7(4) of the Appeal Act

Having regard to the substantial overlap between the matters that must be considered in dealing with the ground that the verdicts are unreasonable and the possible application of s 7(4) of the Appeal Act, it is convenient to deal with them together. Although all three charges arise out of circumstances that occurred within close proximity to each other, it is necessary to draw a distinction between the death of Mr Da-Pra's father, on the one hand, and the offences involving grievous bodily harm to VW and the murder of EW, on the other hand.

The appellant invites the Court to make a special order under s 7(4) of the Appeal Act on the basis that the evidence was so strongly in favour of the view that the appellant was mentally ill that he was not responsible according to law. He contended that the defence of mental illness was established in relation to the charges concerning EW and VW.

Section 7(4) of the Appeal Act confers a power on the Court to examine the evidence and to act upon the Court's view of that evidence in appropriate cases. The power may be exercised not only in cases where it might be appropriate to order a new trial, but also in cases in which the Court is not prepared to hold that the jury's verdict was so perverse and unreasonable as to require that the verdict be set aside. Even if the jury's verdict is not unreasonable in that sense, but the Court considers that the evidence was so strongly in favour of the view that the accused was mentally ill so as not to be responsible according to law, it is open to the Court to exercise the special power conferred by s 7(4). The condition of the exercise of the power is simply that it appears to the Court that the accused was mentally ill. Nevertheless, the cases that fall within the power will necessarily be of rare occurrence. If the evidence, although strongly in favour of the accused's case, is such that a jury, acting reasonably, is not satisfied that the case was established, it will rarely happen that an appellate court, acting merely on a transcript of evidence, will be satisfied that a different view ought to be taken. The appellate court does not have the benefit that the jury had of hearing the evidence as it was given and of seeing the witnesses and seeing the accused himself (R v Jenkins (1963) 64 SR(NSW) 20 at 29; R v Derbin [2000] NSWCCA 361 at [12]-[13]).

The power conferred by s 7(4) is an exceptional one, insofar as it invites the Court to second guess a jury verdict even in circumstances where the Court does not conclude that the jury's verdict was perverse or unreasonable so as to require that it be set aside. In order to determine whether the power should be exercised in the present case, it is necessary to examine in some detail the evidence at the trial, particularly the opinion evidence of the psychiatrists who gave evidence. A significant aspect of that opinion evidence is, of necessity, the detailed assumptions made by the psychiatrists as the basis of their respective opinions. In that regard, the Crown contends that it is highly significant that the relevant assumptions depend, for the most part, upon the appellant's histories given some considerable time after the events in question and after he had decided to plead not guilty on the basis of mental illness.

The question is whether the Court is satisfied that the appellant was labouring under such a defect of reasoning, caused by a disease of his mind, as either not to know the physical nature of his acts or not to know both the physical and moral nature of his acts, such that he did not know that what he was doing was wrong according to the ordinary standards of right and wrong adopted by reasonable persons or whether he was not able to reason, with some modest degree of calmness, as to the moral quality of what he was doing. All of the psychiatric evidence points clearly to the conclusion that the appellant knew what he was doing and so knew the physical nature of his acts on 18 December 2009.

Gervasio Da-Pra

The Crown accepted that at the time of committing the offences, the appellant suffered from a mental illness. However, the Crown contended that the severity of his mental illness fell short of rendering him not responsible for his actions according to law. The psychiatrists all agreed that at the time of committing all of the offences, the appellant appreciated the nature and quality of his acts. The area of dispute was whether, at the time he attacked his victims, he was able to reason with a moderate degree of sense and composure.

The Crown relied on the fact that the psychiatrists' opinions in relation to the attack on the appellant's father were based substantially on his own account of what happened. The Crown contended that the jury's acceptance of the partial defence of substantial impairment, rather than the full defence of mental illness, was open for the following reasons:

The appellant was "a very unreliable historian" and the psychiatric opinions relied heavily on acceptance of his version of what happened when he was with his father.
The appellant said that he attacked his father in anger after his father hit him.
The appellant acted in a calculated and rational manner after killing his father, by cleaning the house and garage, hiding the body away from the premises and staging a robbery at his parents' house, with a view to avoiding detection by the police.
There was evidence that the appellant knew that what he had done was wrong. Dr Nielssen accepted that he was clearly aware of the legal, if not the moral, wrongfulness of his actions. Dr Nielssen accepted that the appellant understood that although he felt justified in killing his father, it was considered legally wrong to kill do so.

The jury did not disregard the psychiatric evidence. Rather, they accepted that the appellant suffered from an abnormality of mind, arising from an underlying condition that substantially impaired his ability to judge whether his actions were right or wrong. The Crown contended that the Court, exercising a cautious and conservative approach, and giving the jury verdict the weight that it deserves, would not be convinced that the jury had come to a wrong conclusion and ought not to disturb the jury verdict in relation to the manslaughter of Gervasio Da-Pra, bearing in mind that the appellant carries the onus of proof on the issue of mental illness.

The appellant contended that it was clear beyond dispute that the verdict in relation to the charge of killing his father was unreasonable and cannot be supported. He pointed out that there was no challenge to the evidence that he had delusional beliefs. Further, he contended, all three psychiatrists concluded that at the time that he killed his father, he did not know that what he was doing was wrong.

Clearly enough, the jury accepted the psychiatric evidence that the appellant suffered from an abnormality of the mind that substantially impaired his capacity to judge whether his actions were right or wrong. They did not accept, on the balance of probabilities, that, at the time he killed his father, he did not know that it was wrong to do so. The question is whether that conclusion is unreasonable in the light of the evidence summarised above or whether the evidence was so strongly in favour of the view that the appellant was mentally ill that he was not responsible according to law.

According to all of Dr Allnutt, Dr Nielssen and Dr Reutens, the appellant had the defence of mental illness available to him in relation to the killing of his father. I was originally disposed to conclude that there were factors that would justify the jury's disregarding the psychiatric evidence.

First, all of the opinions of the psychiatrist are based on unreliable histories provided by the appellant. It is certainly arguable that the strength of the factual assumptions that underpinned the psychiatric conclusions regarding the charge of killing his father are greatly undermined by the unreliability of the appellant's versions of events that can be tested against independent evidence. There were numerous instances where his versions of the circumstances of the attacks were incomplete or inaccurate when tested against such evidence. Secondly, the acts committed by the appellant after he had killed his father were capable of being characterised as being calculated and rational acts.

On the other hand, there was ample evidence to support a finding that the appellant held a delusional belief that, in killing his father, he might be able to save his mother. The other witnesses corroborated the appellant's evidence of his delusion that his family had been the subject of extortion and death threats.

The jury's rejection of the respondent's defences did not necessitate the judge making a definitive finding as to why he went to the W home. There was no dispute amongst the psychiatrists that his thinking was affected by a mental disorder. He certainly spoke subsequently of a home invasion and seeking to establish an alibi; and he did take rudimentary steps to make it appear that the house had been broken into. But the most significant finding by the judge, that the evidence did not establish that a murderous assault upon the occupants was premeditated, was one that was open to him to find.

We do not uphold Ground 1.

Grounds 2 and 3 - failing to properly assess the objective seriousness of the offences and give appropriate consideration to the standard non-parole periods and maximum penalties in relation to the murder of EW and the attempted murder of VW

These grounds were addressed together in the Crown submissions and we will do likewise.

It was acknowledged that since Muldrock v The Queen [2011] HCA 39; 244 CLR 120 it is no longer necessary to classify the objective seriousness of a standard non-parole period offence according to a range. But reference was made to Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [46] where Johnson J reminded that assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process, a purpose of which is to determine a sentence that is proportionate to such gravity.

In written submissions (CWS [98]) there were listed a number of characteristics of the offending that, so it was contended, warranted a finding that they fell within the worst case category. The Crown accepted, however, that his Honour was "clearly conscious" of each of those matters. The gravamen of the complaint is that notwithstanding this, there was a failure to make any assessment as to the objective seriousness of the offences.

It was also acknowledged (CWS [101]) that his Honour did refer to the maximum penalties and standard non-parole periods applicable to the offences in counts 2 and 3 but the submission was made that "his Honour appears to have proceeded on the assumption that the SNPP had no relevance at all in light of the respondent's mental illness".

The respondent referred to Mulato v R [2006] NSWCCA 282 where Spigelman CJ (at [37]) and Simpson J (at [46]) made statements to the effect that the assessment of the objective seriousness of an offence is primarily one for sentencing judges and that this Court would be slow to intervene by substituting its own view. But this does not provide a direct answer to the Crown's complaint that the judge made no assessment at all.

Submissions were also made by the respondent concerning the imposition of a life sentence for murder. These do not require attention as the Crown is not suggesting that such a sentence should have been imposed in this case.

We do not accept the Crown's contention that the judge assumed that the standard non-parole periods "had no relevance at all in light of the respondent's mental illness". For such a contention to be accepted in relation to judge so experienced in the criminal jurisdiction there would need to be a very clear foundation for it. The fact that the submission was couched in terms of "appears to have" is indicative of there not being such a foundation. The Crown's complaint really is that the sentences imposed do not adequately reflect the legislative guideposts of the maximum penalties and the standard non-parole periods. That is a matter that falls for determination under the final ground.

We accept that the judge did not state a definitive finding about the objective seriousness of either of the offences in counts 2 and 3. But it seems clear enough that he acknowledged their obvious objective seriousness but found that the respondent's moral culpability was significantly reduced on account of his mental condition. Whether excessive weight was given to that condition can only be measured by an assessment of the adequacy of the sentences imposed; again a matter that falls for determination under the final ground.

These grounds fail.

Ground 4 - error in the approach to the respondent's mental illness

The Crown did not suggest that his Honour was not cognizant of sentencing principles relating to offenders with a mental illness. He quoted Muldrock v The Queen at [53]-[54] and summarised the principles that are conveniently collected in a number of judgments of this Court: for example, see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]-[178] (McClellan CJ at CL).

The Crown accepted that it was appropriate for less weight to be given to general and personal deterrence on account of the causative role of the respondent's mental illness. It was submitted, however, that his Honour erred in his approach to the correct degree of mitigation to allow and permitted this factor to overwhelm other sentencing considerations. It was said that this was apparent from (a) his reluctance to make the findings referred to in the context of Ground 1; (b) his unduly optimistic findings concerning future dangerousness and there being less need for protection of the community; and (c) his Honour's approach to the purposes of sentencing.

Nothing further was submitted, and nothing more needs to be said, about the first of those matters.

The Crown submitted that the qualifications his Honour mentioned in relation to his finding that "there is in my view no reasonable possibility of his re-offending", namely that he remain on anti-psychotic medication and abstain from alcohol and illegal drugs, were "very significant qualifications".

The respondent had a long history of abusing both alcohol and illicit drugs. Dr Allnutt's evidence included his assessment that the respondent probably had a substance abuse disorder and likely an alcohol abuse disorder.

There was a report by Dr White, a psychiatrist with Justice Health, to the effect that the respondent had adhered to his medication regime, had insight into his condition and appeared prepared to remain on medication indefinitely. Dr White also reported that the respondent was aware that substance abuse worsened his mental illness and that he needed to remain abstinent.

The judge specifically accepted that the respondent would likely remain compliant in relation to taking his medication. Whilst some might hesitate to make such a finding, particularly without having heard any evidence from the offender in question and having regard to the fact that demonstrated compliance with medication had only been in the controlled environment in custody, we cannot conclude that this was a finding that was not open to be made.

We do not accept the Crown's criticism that it was "unreasonably optimistic" for his Honour to also find that the respondent would remain abstinent from alcohol and drugs. No such finding was made.

The Crown's contention might have some force if the judge had made an unequivocal finding of "no likelihood of re-offending". But he did not. It was a finding qualified in the way the Crown has recognised.

Finally in relation to this ground, the Crown was critical of his Honour's approach to the "purposes of sentencing". He found that "it is only retribution that justifies any further substantial time in custody" (R/S [67]. It is worth quoting exactly what was said:

"[65] The purpose for which a Court may impose a sentence are set out in s 3A of the Crimes (Sentencing Procedure) Act but it is sufficient for present purposes if I use the formulation in Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 476 - "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform".

...

[67] In the case of the Prisoner, because of my assessment of him and what I see as to the significance of his schizophrenia, I think that general deterrence should be given little weight. (The High Court in Muldrock v The Queen was content to accept the trial judge's view that general deterrence had no weight.) For the same reasons, and because the Prisoner's self-immolation is the clearest possible evidence of his remorse, I take the same view of personal deterrence. I do not think that any further substantial time in custody will further the Prisoner's reform or rehabilitation and I do not see that the protection of the community requires he be kept there longer than for his treating doctors to be satisfied that he will continue to take his medications and abstain from illegal drugs and alcohol. In his case it is only retribution that justifies any further substantial time in custody. ..."

No explanation was given as to why it was "sufficient for present purposes" to use the formulation in Veen v The Queen [No 2] [1988] HCA 14; (1987-1988) 164 CLR 465 at 476. The seven "purposes for which a court may impose a sentence" set out in s 3A of the Crimes (Sentencing Procedure) Act are more elaborate and explicit than the four matters mentioned there. Much depends upon what is meant by the concept of "retribution". If it is taken to mean only punishment (s 3A(a)), then there are some matters in s 3A that have been left out of the sentencing assessment. But if a broader meaning is assigned to it so that it also incorporates making an offender accountable for his or her actions, denunciation of the conduct, and recognition of the harm done to the victim and the community (s 3A(e)-(g)) then none of the matters in s 3A have been ignored.

We consider it highly unlikely that a judge with the experience of R S Hulme J would consider it appropriate to completely ignore the factors listed in s 3A(e)-(g). They are clearly relevant matters to consider in any sentencing exercise; a consideration that is more often intuitive with experienced judges without any need to mechanically set out conclusions as to each matter. The better view than that propounded by the Crown is that his Honour had all relevant sentencing purposes in mind and it was only for brevity that he referred to the formulation in Veen v The Queen [No 2] rather than to recite the lengthier list of essentially the same matters provided by the statute. Accordingly, when his Honour said that it was only "retribution that justifies any further substantial time in custody" we consider that he was speaking of four of the purposes of sentencing in s 3A (namely (a) and (e)-(g)).

The Crown submissions go too far in asserting that his Honour completely rejected deterrence as a relevant consideration. (CWS [228]) His Honour in fact said that both general and personal deterrence would be given "little weight", not "no weight".

It was open to his Honour to make that finding in relation to general deterrence having regard to the severity of the respondent's mental illness and its causative relationship with the offending. Questions of weight are, as the submissions for the respondent remind us, largely matters for primary judges and about which this Court is slow to substitute its own view: see, for example, R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ).

Having said that, however, we do consider that his Honour was in error on the topic of personal deterrence. It should have had a real bearing on the assessment of sentence. The respondent had shown that when he was afflicted by mental illness, with the condition exacerbated by alcohol and substance abuse, he was capable of the most extreme forms of violence with disastrous and tragic consequences. The qualifications to his Honour's finding about the prospect of reoffending warranted a clear and unequivocal message to be sent to the respondent that compliance with medication and abstention from alcohol and drugs was of the utmost importance. Compliance and abstention while in custody is one thing; doing the same whilst at large in the community remains to be seen. Personal deterrence warranted significantly more than "little weight".

We uphold this ground, but only in the limited respect just mentioned.

Ground 5 - error in reducing the sentence pursuant to ss 22A and 23 of the Crimes (Sentencing Procedure) Act

Section 22A provides that a court may impose a lesser penalty having regard to the degree to which the administration of justice has been facilitated by the defence before or during a trial.

Section 23 provides that a court may impose a lesser penalty having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection, or investigation of, or in proceedings relating to, the offence concerned or any other offence.

In our earlier summary of the sentencing remarks we referred to the passage at [59] where his Honour indicated his acceptance of submissions that had been made in relation to these provisions. He referred to the limited issues upon which the trial had been contested and the admissions made by the respondent that assisted the investigation.

The Crown submitted that there was no warrant to allow a reduction of sentence pursuant to s 22A. For the respondent not to have acknowledged his physical responsibility for the deaths of his father and EW and his attempt to kill VW would have been entirely inconsistent with his case that he should be absolved, or partially absolved, of criminal responsibility on the basis of his mental state.

The respondent countered that mitigation was warranted by virtue of the co-operative approach taken by the defence agreeing as to witnesses required to be called; making plain to the jury the limited nature of the issues and conducting the trial in that manner; and also making formal concessions as to documents and handwriting.

In relation to s 23, the Crown submitted that the provision was not intended to justify a reduction of sentence on account of the making of admissions concerning the offending the subject of the proceeding.

There is some controversy in this Court about the type of assistance to law enforcement authorities s 23 is concerned with. See the competing views expressed in the judgments in RJT v R [2012] NSWCCA 280; 218 A Crim R 490, and, recent reference to the uncertainty of the breadth of reach of s 23 in the judgment of Leeming JA in Peiris v R [2014] NSWCCA 58 at [38]. In another recent case, Mencarious v R [2014] NSWCCA 104, Adams J (with the concurrence of Simpson and McCallum JJ) (at [22]) extended the potential availability of s 23 mitigation of sentence to an offender who voluntarily attended a police station a few hours after having murdered his wife. Having regard to what was said in the earlier cases, it is not clear that such a proposition would be universally accepted.

The submission for the respondent was that his Honour attributed little weight to these matters. They were mentioned in a single paragraph towards the end of his sentencing remarks and were prefaced by: "Lest it be thought they have been forgotten, I mention some other matters to which counsel referred."

His Honour did not recite any consideration of the various factors that s 23(2) requires a judge to consider and nor did he comply with s 23(4) which requires a judge to do certain things, including to indicate that a lesser penalty was being imposed on account of the offender's assistance and to state the penalty that would otherwise have been imposed.

There is force in the respondent's submission. Of the myriad complex factors his Honour considered and discussed in the course of his judgment, these matters pale into insignificance. It is very doubtful that, if there was error, it had any material bearing upon the sentence imposed. We are not critical of the Crown for raising it but we do not uphold it.

Ground 6 - failure to adequately accumulate the sentences

The submission of the Crown that is central to this ground is that neither the overall sentence nor the non-parole period reflects the total criminality of the respondent's offences.

The Crown was correct to recognise that the question whether to order that sentences be served concurrently, cumulatively, or partially so is discretionary. And, as Howie J pointed out in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27], crucial to the exercise of the discretion is the principle of totality of criminality: "can the sentence for one offence comprehend and reflect the criminality for the other offence?" A useful discussion of the relevant principles and factors favouring either concurrence or accumulation appears in the judgment of Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52].

There is no doubt about the judge being aware of and seeking to apply the principle of totality. He specifically adverted to it in the concluding paragraph of his sentencing remarks before announcing the individual sentences.

This ground is relevant to the ultimate question: are the individual sentences and their total effect manifestly inadequate? This will be considered in the context of the final ground.

Ground 7 - the sentences imposed for the murder of EW and the attempted murder of VW are manifestly inadequate

The primary argument for the Crown is that the sentences for these offences are each manifestly inadequate and the degree of accumulation of the sentences renders the total term manifestly inadequate as well. This is particularly so having regard to their objective seriousness and the applicable maximum penalties and standard non-parole periods. It was contended that the degree of amelioration of the sentences on account of the respondent's subjective circumstances, primarily his mental illness, was excessive.

The Crown did not challenge the proposition that the respondent's mental illness was "a highly relevant matter to take into account on sentencing". It was accepted that "it did serve to greatly mitigate the sentence that would otherwise have been appropriate".

Earlier in the written submissions (CWS [103]ff) the Crown referred to nine cases in which an offender had been sentenced for murder where the higher standard non-parole period of 25 years applied because the victim was a child. It is unnecessary to refer to the cases in detail; the essential point was that where a life sentence was not imposed, the non-parole periods have ranged from 17 years up to 30 years. Here, in relation to the murder of EW, the non-parole period was only 10 years.

Judicial Commission sentencing statistics were also relied upon in relation to the sentence for the attempted murder of VW. They indicated that since the introduction of the standard non-parole period for this offence in 2006, non-parole periods imposed have ranged from 4 years and 6 months up to 16 years. The one non-parole period of 4 years and 6 months imposed involved an offender who had pleaded guilty. The respondent received such a non-parole period following his plea of not guilty in respect of the offence in count 3.

Care is obviously required in relation to the consideration of past sentencing decisions. The correct approach was described by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa; an approach endorsed by the High Court of Australia in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]. Her Honour said:

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

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

[305] In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender..."

The respondent challenged the Crown's reference to other cases and provided a useful summary of a variety of ways in which they were distinguishable. It may be readily accepted that they are distinguishable; that is apparent from the fact that they all brought sentences substantially exceeding those which were imposed in the present case.

One particular case the Crown referred to in relation to attempted murder bears attention: Cvetkovic v R [2013] NSWCCA 66. It involved a man who was estranged from his wife. One day after they met to discuss a financial settlement they were in a car together when he produced a "gyprock saw" and stabbed her at least 30 times from which she miraculously survived but required over 9 hours of surgery and was left with ongoing physical and psychological harm of significant severity. The offender was convicted after trial. Two eminent forensic psychiatrists found he was suffering from depression; Dr Bruce Westmore diagnosed a major depressive illness which appears to have been accepted by Dr Nielssen. However, there was found to be no error in the sentencing judge finding that this did not mitigate the offender's conduct to any great degree.

McCallum J (with the concurrence of Price and Schmidt JJ) (at [87]) endorsed the sentencing judge's finding that "this was a very serious offence falling little short in culpability of the offence of murder". A sentence of 17 years 4 months with a non-parole period of 13 years was found to be "stern" but not outside "the proper range".

We are persuaded that the sentence imposed in this case for the attempted murder of VW was demonstrably inadequate. Putting to one side for the moment the respondent's mental illness, the physical attributes of the offence renders it one that can also be described as falling little short in culpability of the completed offence. Ms W was extremely fortunate not to have succumbed to an attack by an intruder into her home in which death was clearly intended and thought by the respondent to have been achieved.

Allowing full weight for the mitigating factors that need to be brought into account for the respondent's prior blameless life and his mental illness (reduced moral culpability; little weight to general deterrence; and, we accept, more onerous custodial conditions) but giving greater emphasis than the primary judge gave to personal deterrence, respect for the legislative guideposts of the maximum penalty and the standard non-parole period demanded that a significantly greater sentence be imposed.

We are of the same view with regard to the sentence for the murder of EW. A 15 year sentence with a 10 year non-parole period does not reflect the denunciation required for the callous and savage taking of the life of an entirely innocent 12 year-old girl in her home. If not for the respondent's mental illness, it would have called for a sentence involving a non-parole period of at least, and probably greater, than the 25 year standard. A significant reduction of that sentence was required, but too much allowance in the respondent's favour has been made.

We do not accept the respondent's submission that this is an appropriate case for the Court to exercise its residual discretion to dismiss a Crown appeal notwithstanding error (largely latent) having been identified.

Reference was made to the majority judgment in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [2] and [43] where examples were given of reasons for exercising this discretion (disparity; delay; an imminent or past parole release date; and disruption of rehabilitation). The respondent submitted that delay and progress towards rehabilitation were applicable here.

Delay is of some relevance. The appeal was brought promptly by the Crown but the hearing was delayed for well over a year; we assume because of the filing of the notice of appeal against conviction on 28 June 2013. It is now over two years since the respondent was convicted and sentenced.

An affidavit affirmed by the respondent shortly before the hearing of the appeal was read. It confirmed that he continues to receive psychiatric treatment and has been compliant with the need to take medication. He has experienced some conflict with other inmates because of his crimes and is housed in a mental health unit with limited association with others. He is receiving family visits and keeps busy working. Finally, he said that he is anxious about the Crown appeal.

These matters were not challenged by the Crown and should be taken into account. They are relevant to the assessment of sentence but in our view do not provide a basis to refrain from intervention.

The sentence for the attempted murder of VW should be one of 10 years. It is necessary for there to be a non-parole period; notwithstanding it will have no practical effect: see s 45(1) Crimes (Sentencing Procedure) Act.

The sentence for the murder of EW should be one of 20 years.

We propose to accumulate the sentences so that the overall term will be one that reflects the totality of criminality inherent in the murder of a child and a serious example of attempted murder, attenuated to a significant extent on account of the respondent's reduced moral culpability because of his mental illness.

The sentence for the murder will include a non-parole period that reflects the finding of the sentencing judge of special circumstances so as to preserve (with rounding, something close to ) the usual ratio of non-parole and parole periods in the overall term.

The total effective sentence we propose is one of 25 years with a non-parole component of 18 years.

Orders

We propose the following orders:

1 Leave to appeal against conviction granted and appeal allowed in part.

2 Quash the conviction for the manslaughter of Gervasio Da-Pra and in lieu, enter a verdict of not guilty on the grounds of mental illness. Order that Renzo Da-Pra be detained in strict custody until released by due process of law.

3 Crown appeal against sentence allowed and sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed. In lieu, the respondent is sentenced as follows:

Count 3 (infliction of grievous bodily harm with intent to murder VW): sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 20 December 2009 with the non-parole period expiring on 19 June 2017 and the total term expiring on 19 December 2019.

Count 2 (murder of EW): sentenced to imprisonment comprising a non-parole period of 13 years and a balance of the term of the sentence of 7 years. The sentence will date from 20 December 2014 with the non-parole period expiring on 19 December 2027 and the total term expiring on 19 December 2034.

The respondent will become eligible for release on parole when the last non-parole period ends on 19 December 2027.

**********

Decision last updated: 03 October 2014

Medium Neutral Citation:	Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
Hearing dates:	3 October 2013
Decision date:	03 October 2014
Before:	Emmett JA at [1]; R A Hulme J and Bellew J at [174];
Decision:	1. Leave to appeal against conviction granted and appeal allowed in part. 2. Quash the conviction for the manslaughter of Gervasio Da-Pra and in lieu, enter a verdict of not guilty on the grounds of mental illness. Order that Renzo Da-Pra be detained in strict custody until released by due process of law. 3. Crown appeal against sentence allowed and sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed. In lieu, the respondent is sentenced as follows: Count 3 (infliction of grievous bodily harm with intent to murder VW): sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 20 December 2009 with the non-parole period expiring on 19 June 2017 and the total term expiring on 19 December 2019. Count 2 (murder of EW): sentenced to imprisonment comprising a non-parole period of 13 years and a balance of the term of the sentence of 7 years. The sentence will date from 20 December 2014 with the non-parole period expiring on 19 December 2027 and the total term expiring on 19 December 2034.
Catchwords:	CRIMINAL LAW - appeal against conviction - mental illness - murder- manslaughter - jury did not completely reject unanimous psychiatric evidence - trial judge provided clear direction relating to unanimous psychiatric evidence - not necessary to determine whether verdicts are unreasonable or cannot be supported when s 7(4) Criminal Appeal Act is raised - jury ought to have found that defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra - open to jury to reject defences in respect of killing of EW and wounding of VW CRIMINAL LAW - Crown appeal against sentence - trial judge did not fail to make factual findings in relation to the murder - no definitive finding of objective seriousness regarding counts 2 and 3 but not amounting to error - specific deterrence warranted more than little weight - little weight attributed to assistance to authorities - sentences for EW and VW demonstrably inadequate
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Cvetkovic v R [2013] NSWCCA 66 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Jones v The Queen [1997] HCA 12; 191 CLR 439 M v The Queen [1994] HCA 63; 181 CLR 487 Mencarious v R [2014] NSWCCA 104 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Peiris v R [2014] NSWCCA 58 R v Amacha [2010] NSWCCA 180 R v Baker [2000] NSWCCA 85 R v Da-Pra [2012] NSWSC 607 R v Derbin [2000] NSWCCA 361 R v Iusi Afele [2014] NSWSC 366 R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20 R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Porter [1933] HCA 1; 55 CLR 182 R v Pratt [2009] NSWSC 1108 R v Rodriguez [2010] NSWSC 198 R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep) R v Thomas (Court of Criminal Appeal (NSW) 28 May 1996, unrep) R v Wilson [2005] NSWCCA 219 R v XX [2009] NSWCCA 115; 195 A Crim R 38 RJT v R [2012] NSWCCA 280; 218 A Crim R 490 SKA v The Queen [2011] HCA 13; 243 CLR 400 Taylor v R (1978) 45 FLR 343; 22 ALR 599 Veen v The Queen [No 2] [1988] HCA 14; (1987-1988) 164 CLR 465 Wong & Leung v The Queen [2001] HCA 64; 207 CLR 584 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	Renzo Da-Pra (Appellant) Regina (Respondent)
Representation:	Counsel: Ms C Loukas SC (Appellant) Ms S Dowling SC (Crown) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2010/10416
Publication restriction:	Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of anything that identifies a child. For this reason the child victim and her grandmother are referred to by initials.
Decision under appeal	Citation: R v Da-Pra [2012] NSWSC 607 Date of Decision: 2012-06-04 00:00:00 Before: R S Hulme J File Number(s): 2010/10416