Du Randt v R

[2008] NSWCCA 121

New South Wales
Court of Criminal Appeal

CITATION:	Du Randt v R [2008] NSWCCA 121 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 April 2008
JUDGMENT DATE:	30 May 2008
JUDGMENT OF:	Basten JA at 1; Barr J at 5; Buddin J at 59
DECISION:	The applicant is granted leave to appeal. The sentence appealed from is quashed and there is substituted a sentence of imprisonment of two years and six months. The sentence is to be taken to have commenced on 28 September 2007 and will expire on 27 March 2010. Direct that the applicant be released on 27 March 2009 on a Recognisance Release Order self in the sum of $100.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against severity of sentence - dealing in money that was proceeds of crime - whether trial judge gave adequate consideration to mental health of applicant at the time of the offence
LEGISLATION CITED:	Criminal Code Act 1995 (Commonwealth) s400.4(2) Crimes Act 1914 (Commonwealth) ss16A, 17A, 20BV Mental Health Act 2007 Criminal Appeal Act 1912 s6(3)
CASES CITED:	Leach v R [2008] NSWCCA 73 R v Verdins [2007] VSCA 102 R v Israil [2002] NSWCCA 255
PARTIES:	Amelia Du Randt Regina
FILE NUMBER(S):	CCA 2007/4550
COUNSEL:	Greg Walsh (solicitor) (Appellant) Mr Staehli SC (Crown)
SOLICITORS:	Greg Walsh Barristers and Solicitors (Appellant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0314
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	28 September 2007

2007 / 4550

BASTEN JA
BARR J
BUDDIN J

30 May 2008
Amelia Du Randt v R

JUDGMENT

1 BASTEN JA: This matter involves an application for leave to appeal against a sentence imposed on the applicant by Sorby DCJ, the circumstances of which are sufficiently recounted by Barr J, with whose reasons I agree. There were, in substance, two complaints concerning the attention paid by the sentencing judge to evidence of the applicant’s psychological ill-health. That material was relevant in two ways. First, it had the potential to affect an assessment of the applicant’s moral culpability with respect to her involvement in the offences to which she pleaded guilty. Secondly, it provided a basis for an inference that, if she received a custodial sentence, the sentence would weigh more heavily on the applicant than would be expected in the case of a reasonably healthy person.

2 At the hearing of the application, further evidence was tendered, by way of a report prepared by a psychiatrist, Dr John Roberts, as to the state of her health in prison. The Director objected to the tender, partly on the basis that he had not had an opportunity to obtain a further report from his own psychiatrist, Dr Allnutt. On the basis that the Director would be given an opportunity to obtain another report, the further psychiatric evidence was admitted. A supplementary report from Dr Allnutt was tendered, with a short submission, on 6 May 2008. A supplementary submission in response from the applicant was received on 8 May 2008.

3 The further material was not before the trial judge and is not relevant to a determination of error on his Honour’s part. As explained by Barr J, there was significant material before the sentencing judge capable of supporting an inference that the applicant would in fact suffer a deterioration in her psychological health from a significant period of imprisonment. His Honour failed to give proper consideration to that factor in his reasons, which was an omission warranting intervention by this Court. The further evidence was admissible in the exercise of this Court’s function in re-sentencing the applicant, error having been otherwise established.

4 Taking the further evidence into account for that purpose, a reduction in sentence is warranted, as demonstrated by Barr J. I agree with the orders his Honour proposes.

5 BARR J: Amelia Du Randt has applied for leave to appeal against a sentence which was imposed in the District Court after she pleaded guilty to the charge that between about 28 December 2005 and 31 May 2006 at Sydney and elsewhere in New South Wales and in Queensland she dealt in money that was proceeds of crime and was reckless as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. The resulting sentence was of imprisonment for three years and three months, commencing on 28 September 2007 and expiring on 27 December 2010, incorporating a non-parole period of two years expiring on 28 September 2009. The charge was laid under s400.4(2) of the Criminal Code Act 1995 (Commonwealth). The maximum applicable sentence was imprisonment for ten years.

6 The applicant was acquainted with a number of people who were concerned in the importation of amphetamine and the distribution of the proceeds of its sale. Some of them were Danielle Maio, Medhi Mohammadi, also known as Nick, Andrew Labanon, Lisa Dunn, Taro Zion Joy and Shane Cooper. During the period between June and December 2005 the applicant and Dunn spoke to one another on the telephone a number of times. On 8 June 2005 a certain United States Navy vessel arrived at Townsville and Labanon retrieved from it a quantity of amphetamine and handed it to Maio. Maio and Mohammadi were arrested in possession of it. The weight was 11 kilograms, 7.3 kilograms pure. On the same day the applicant and Dunn spoke on the telephone about a ship coming in. However, it was not asserted that the applicant was involved in the importation.

7 On 9 November 2005 Joy arrived in Sydney from overseas and on 13 November Cooper also arrived from overseas. The applicant later met Joy and Cooper. Joy left Australia on 12 December. On 27 December the applicant travelled by car from Sydney to the Gold Coast and collected from Cooper $100,000 in cash. She drove back to Sydney and delivered the money to a cash dealer. On 30 December Cooper left Australia.

8 In March 2006 Joy returned to Australia. He told the applicant that he was sick and needed help. She visited him at his hotel. Joy had $100,000 in cash. The applicant helped him to count it. Joy left the applicant’s presence and delivered the money to someone else. It was not suggested that the applicant was involved in dealing with that money.

9 Cooper arrived in Australia. On 18 March 2006 the applicant travelled once again by car to the Gold Coast. She collected a further sum of $100,000 in cash from Cooper. She brought it back to Sydney by car. Joy was away from Sydney at the time and the applicant stored it in a cupboard for a couple of days before meeting up with Joy and giving it all to him. Not long afterwards Joy left Australia once again.

10 Early in May Mohammadi, Labanon and Maio appeared in the Supreme Court of Queensland charged with drug offences. Maio pleaded guilty and the other two were convicted of offences concerning the importation. On 12 May the applicant told Joy about the verdicts. On 15 May the applicant spoke to Cooper and on 17 May flew to the Gold Coast and met him. On the following day the applicant and Dunn discussed the sentence just passed on Mohammadi. Cooper had about $50,000 in cash. He and the applicant counted it. The applicant took it and brought it back to Sydney by plane. On 21 May the applicant spoke to Dunn on the telephone, mentioning that she hoped that there were no more buggings and that she had to prepare herself for a knock at the door. On 31 May the applicant delivered the sum of $49,950 in cash to a currency dealer in Ryde.

11 On 24 October 2006 the applicant was arrested. She was interviewed by federal agents on that day and again on 21 November 2006. On 24 October 2006 the applicant said that she had carried money only once, $50,000, which she had taken to a brokerage place. She did not know where it had come from. She assumed that it was for Mohammadi’s legal costs.

12 On 21 November 2006 she admitted transporting cash on the three occasions I have set out. Explaining the carriage of money in December 2005, she said that she believed that the money she was collecting was for legal fees for Mohammadi. She assumed that it had come from the account of a brother of Mohammadi. It never crossed her mind to ask why Cooper, who was already on the Gold Coast, could not simply have paid the lawyers himself. She was chronically depressed and was being treated and was prepared to do any little task that made her feel worthy. She was happy to help her friend and did not question what she was asked to do because it gave her some motivation to get out of bed. She said that she was not suspicious about the money.

13 A substantial subjective case was put to the sentencing judge. His Honour summarised it thus -

The offender is thirty-three years old and was born in South Africa. Her parents separated when she was about four years of age. Later she went to a boarding school. She was sexually molested at the age of twelve and then she moved to Australia. At sixteen she was sexually assaulted by her then boyfriend.

In 1990 she returned to South Africa and undertook various ballet, drama and music courses. In 1997 to 2001, she lived in Japan where she worked as a singer. She continued to work as a singer in Australia as well. In early 2005, her band broke up and this distressed her and she found it difficult to find work as a singer.

She started seeing a psychiatrist, Dr Freed around this time who prescribed a medication regime. He considered that she suffered from “a mixed polar” disorder with symptoms of depression and hypomania. Dr Freed noted that the offender was responding to his treatment and medication as he continued to review her throughout 2006. Dr Freed saw Ms Du Randt again on 8 December 2006 noting that she had been arrested by the police on 24 October 2006 and charged with eight counts of money laundering. She informed Dr Freed that she had helped friends and that she believed the monies were needed for a friend and she thought that she had been wrongfully arrested. Dr Freed noted the normal previous sessions. Ms Du Randt had not given any indication that she was involved in any illegal activity. Dr Freed also noted that the offender had been taking a number of medications and also had taken a drug known as base which is an amphetamine.

The offender saw a psychiatrist, Dr John Roberts on 1 December 2006, the report dated 15 January 2007 who diagnosed a bipolar mood disorder. As to the offender’s drug use, Dr Roberts said at p8 of his report:
‘As far as substance abuse is concerned, use of a substance in a person predisposed by family history and is as the case here, to the disturbances of mood, would be likely to endanger in them mood fluctuation to a greater degree and severity than would be the case if such a predisposition to mood disturbance did not exist. If a presumption is made of a mood disorder being present, the use of substances would compound mood fluctuation and exacerbate the underlying condition and compounding the tendency of that condition to procure ill considered acts arising as a result of poor judgment’.

14 The applicant’s mother gave evidence which impressed his Honour. She said that the applicant had withdrawn from the family and that she, her mother, had no idea about her mental health. She said that the applicant was living with her and could continue to do so. She was confident that the applicant would continue her treatment.

15 His Honour observed that the applicant had not given evidence but referred to a passage in the pre-sentence report, prepared by a Probation and Parole officer, to the effect that the applicant felt highly embarrassed that she did not understand that she was taking part in money laundering. She expressed her regret, having contributed to an illegal activity. She explained that her actions were based upon her having trusted associates that she knew in common with a close friend and had relied on their advice that the activity was legal.

16 His Honour noted the early plea of guilty as well as her agreement, reported through her solicitor, to co-operate with the police should others be charged in relation to the offences under consideration.

17 His Honour reviewed the medical, particularly the psychiatric, evidence and noted that the applicant was under treatment at the time that she committed the offence. His Honour accepted that there were mental problems which were unresolved and that they moderated, if only to a limited extent, the need for general deterrence.

18 His Honour noted that the applicant had no prior criminal history.

19 His Honour noted the submission of the applicant’s solicitor, based on the diagnosis of her treating psychiatrist, Dr Freed, that the applicant had a significant degree of impairment of her psychological functioning and control. His Honour did not accept that submission.

20 His Honour expressed himself dissatisfied that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried the money.

21 His Honour declined an invitation not to impose a period of imprisonment but to make a psychiatric probation order under the provisions of s20BV Crimes Act 1914 (Commonwealth).

22 The grounds of appeal other than the sixth, which was not pressed, are as follows –

1. The sentences imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.

2. The sentencing judge erred in finding that the applicant’s offending was objectively very serious and must be met with condign punishment.

3. The sentencing judge erred in finding that the applicant’s mental condition from which she suffered did not interfere with what she was doing when she carried the cash.

4. The sentencing judge erred in finding that at the time of the offence and now, mental issues remain unresolved which moderated, if only to a limited extent the need for general deterrence.

7. By reason of the applicant’s psychiatric/medical
condition subsequent to the imposition of sentence a miscarriage of justice has occurred (such that a different and lesser sentence should now be imposed upon the applicant).

23 Only grounds 1 and 7 were argued with any vigour. Mr Walsh, who appeared for the applicant, accepted that grounds 2, 3,4 and 5 did no more than particularise a number of errors contended for.

Ground 1. The sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.

24 Two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put, “whether she understood the gravity of the wrongdoing”. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound in the sentence to be imposed. In Leach v R [2008] NSWCCA 73 Basten JA at [10] – [12] set forth with approval the principles explained by the members of the Court of Appeal of Victoria in R v Verdins [2007] VSCA 102 at [32] thus -

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

25 For these submissions Mr Walsh relied on what was said in R v Verdins at paragraphs 1, 2, 3 and 4.

26 Reference was made to the judgment in this court in R v Israil [2002] NSWCCA 255 in which the Chief Justice, with whom Simpson J and Blanch AJ agreed, said at [21] – [25] -

21 The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294.

22 In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.

23 To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry , supra, at [254]:

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.”

24 I agree with the observations of Malcolm CJ in Lauritsen at [48]:

“… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.”

25 Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:

“… specific deterrence may be more difficult to achieve and is often not worth pursuing as such.” (Tsiaras, supra, at 400)

27 Mr Walsh drew the court’s attention to parts of the report of Dr Freed, which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. She had manic-like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder.

28 The second condition was post-traumatic stress disorder resulting from a number of incidents in the family when she was very young, including cruelty at the hands of a step-mother, molestation by a stranger at the age of six, beatings at boarding school, molestation by a neighbour at the age of 12, rape at the age of 16, mental abuse by a friend at the age of 18 and the deaths of a number of people close to her, including members of her family. It was the assault and rape of her sister by four men in 2005 which resulted in her referral to Dr Freed for treatment.

29 Dr Freed said that the applicant had associated with these conditions bizarre psychotic dreams which reflected abandonment and neglect in the past. There were dreams of abortion and of eating human internal organs.

30 Dr Freed diagnosed borderline personality disorder, characterised by an identity crisis. She consulted people who inflicted pain upon her. She abused drugs. She had symptoms of efforts to avoid real or imagined abandonment, impulsivity in drug and alcohol abuse and body piercing, suicidal thoughts, a marked reactivity of mood, feelings of emptiness, inappropriate anger and severe dissociative symptoms.

31 Dr Freed also noted the applicant’s periodic drug and alcohol abuse. He concluded as follows -

In this morass of multiple pathologies with significant mood changes, both in the depressed and elated phases, hallucinatory voices, and thought disorder (with an impaired capacity to test the logic of situations), she has had a significant loss of insight and judgment. Her disabilities arise out of mental illness of which the core element is Bipolar Disorder with psychosis, and the secondary elements being Post Traumatic Stress Disorder from multiple traumas, Borderline Personality Disorder, and Periodic Drug and Alcohol Abuse.

32 Dr Freed gave evidence before the sentencing judge. In order to illustrate the applicant’s likely lack of judgmental ability he gave a hypothesis of a person to whom a stranger offers a Rolex watch for fifty dollars. Whereas most people would conclude either that the watch was not a genuine Rolex or that, if it was, it had been stolen, the applicant might have jumped to the conclusion that the stranger and the watch were genuine and the transaction “pleasing”.

33 In his report Dr Roberts noted Dr Freed’s diagnosis and continued -

If a presumption is made of a mood disorder being present, the use of substances would compound mood fluctuations and exacerbate the underlying condition compounding tendency of that condition to produce ill considered acts, arising as a result of poor judgment.
In relation to the charges for which Ms Du Randt is facing Court, assuming her statements to me are true and accurate, namely that she believed that the monies handled by her were monies that were in essence legitimate and designed for the payment of legal expenses, and which she stated had been told to her, as being money emanating from Iran and because of this monies origin had to be dealt with in this manner, would be explanations that would be on grounds of probability more readily accepted by a person with a diagnosed mental illness, than a person in full possession of their critical faculties.

34 Mr Walsh drew the attention of the Court to passages in the remarks on sentence. Having referred to the Crown and defence cases on the need for adequate punishment, objective seriousness, general and subjective or personal deterrence, including the evidence of the mental health of the applicant, his Honour continued -

…I have carefully read all the reports and listened to the evidence of Dr Freed. I am not convinced on reading the agreed facts, including the telephone taps that the mental condition from which the offender suffered interfered with what she was doing when she carried the cash.
She was under treatment during the time she committed the offences and according to Dr Freed, responded positively to that treatment. However, I do accept that she had, at the time of the offence and now, mental issues unresolved which moderates, if only to a limited extent, the need for general deterrence in offences such as this.

35 It was submitted on appeal that his Honour failed to take into account the inability of the applicant truly to understand the nature of what she was doing as affecting the need for general and personal deterrence.

36 The case for the Crown and for the defence was put before his Honour at great length and in great detail. The Statement of Facts ran for 27 pages and the two records of interview for 19 and 47 pages respectively. Dr Freed’s monumental statement ran for 38 pages. Dr Roberts’ was more concise at nine pages. The Crown’s written submissions on sentence ran for 22 pages and the supplementary submissions for three pages. The defence written submissions on sentence ran for 27 pages. His Honour is a busy sentencing judge and I suspect that the perceived need to husband resources led him to deal more succinctly with the subject matter than did the parties.

37 I have extracted his Honour’s resume of the evidence relied on and the conclusion to which his Honour came. Having read the reports of Dr Freed and Dr Roberts and having heard the evidence of Dr Freed, his Honour could scarcely have failed to understand that it was an important part of the defence case that the mental condition from which she was suffering robbed the applicant of the ability fully to appreciate the nature of what she was doing. I would not take his Honour’s not mentioning in terms the evidence relied on or the submissions made in reliance on it as leading to the conclusion that his Honour failed to consider that submission or that evidence. In imposing sentence his Honour did make a modest allowance for the mental condition of the applicant, and I think that must have been on account of the arguments then and now put. I do not think that his Honour failed to appreciate the case that was being put or failed to consider the submissions made on this topic.

38 The second substantial argument put forward under this ground was that his Honour failed to consider the effect on the service of her sentence of the applicant’s state of health. Mr Walsh relied on the fifth and sixth principles referred to in Vergins. See also the judgment of Spigelman CJ in R v Israil at [26].

39 A substantial case for an amelioration of the sentence on this basis was put before the sentencing judge, relying, inter alia, upon a submission that a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served.

40 In the remarks on sentence his Honour made a number of references to the significance for the sentence of the applicant’s mental illness. Having reviewed the evidence about mental illness his Honour went on to consider the matters to which, by s16A Crimes Act, the Court should have regard. Subs (2)(k) introduces the need to ensure that the person is adequately punished for the offence. It was expressly in relation to that paragraph that his Honour rehearsed the submissions about the applicant’s mental illness and expressed the conclusion which I have set out above.

41 Para (m) of the same subsection introduces the need to have regard to the character, antecedents, cultural background, age, means and physical or mental condition of the person to be sentenced. His Honour’s remarks make no reference to that paragraph.

42 His Honour came back to consider the evidence of Dr Freed a second time, but only in the context of s17A(1), which provides that a court shall not pass a sentence of imprisonment unless, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances. It was there that his Honour considered the recommendation of Dr Freed that the applicant be not sentenced to imprisonment at all, but have the benefit of a psychiatric probation order. That was a recommendation and a submission that his Honour rejected, as I think he was entitled to do, but it does illustrate the limited context in which his Honour took into account the mental illness of the applicant.

43 Notwithstanding that a few sentences later his Honour said this -

In imposing a sentence, I have to take into account all relevant factors under s16A. I have carefully weighed up the subjective factors in the offenders favour and including her mental health.

I think that his Honour overlooked consideration of the question whether the applicant’s sentence should be ameliorated because it would be more onerous upon her because of her mental condition. If his Honour had taken that factor into account I would have expected some reference, however brief, to have been made to the distinctly different manner in which the mental illness of the applicant might affect the sentence.

44 In my opinion this second attack on the sentence has been made good. In my opinion the several conditions from which the applicant was suffering at the time of sentence were such as to entitle her to consideration and amelioration of her sentence.

45 Under the seventh ground of appeal Mr Walsh put forward further medical evidence of the medical condition of the applicant. There was some debate as to the basis upon which the Court ought to receive the material. However, I would receive the material for the purpose of re-sentencing, as the Court ordinarily does.

46 Since the commencement of her sentence the applicant has been seen frequently by professionals, weekly by a psychologist and monthly by a psychiatrist. She has been treated and medicine has been prescribed and the psychologist has given her helpful advice. Notwithstanding these matters, Mrs Prinsloo, the applicant’s mother, reported that the applicant had put on weight and particularly that her lower legs were swollen and blotchy.

47 Dr Roberts was called to see the applicant on 2 December 2007 and wrote a report on 11 December 2007. He confirmed the matters complained of by Mrs Prinsloo and confirmed that because of the change in the applicant’s appearance consequent upon her gain of very substantial weight he failed at first to recognise her. He described the condition of the lower legs as pitting oedema. He considered that this condition to be a side effect of the drugs that the applicant was taking. Dr Roberts confirmed a diagnosis of bipolar disorder with psychotic features and commented that her condition was complex and because of drug sensitivity treatment was difficult. Treatment had produced significant side effects which were severe, but not of the most severe degree. Doctor Roberts wondered whether the applicant could be adequately treated in custody, not because of any asserted lack or skill of those having the care of her but because of a lack of resources, psychiatrists within the Prison Psychiatric Service being able to see inmates less frequently than would be the case in a private psychiatric clinic.

48 Dr Roberts saw the applicant again on 24 March 2008 and wrote a report dated the following day. He confirmed that the applicant presented features of depression with psychosis and had a history of symptomatology suggesting bipolar disorder. She presented in a manner suggestive of significant deterioration, marked by persistent psychosis, flat, unresponsive affect and depressed mood. He thought that her physical health had deteriorated markedly. She was morbidly obese and had pitting oedema up to the knees of unknown origin. There were certain symptoms suggestive of cardiac disease. He continued -

It is my view on psychiatric grounds that because of Ms Du Randt’s pre-incarceration history of unwellness that the imprisonment is disproportionately severe for her to tolerate and constitutes to her a level of punishment which by virtue of the psychiatric condition present is a level of punishment which by virtue of the psychiatric condition present is a level of punishment that is far more difficult for her to tolerate than would be the case if she was not mentally ill.

49 Dr Roberts considered that urgent measures were needed to control weight gain and to clarify the causation of oedema, nocturia and breathlessness on exertion. Again he suggested that it would be less difficult for appropriate investigations and more intensive management to be undertaken outside the prison system.

50 The Crown responded by having the applicant see Dr Allnutt, psychiatrist, who saw her on 31 March and 28 April 2008. Dr Allnutt expressed the opinion in a report on 7 April 2008 that the applicant had bipolar affective disorder with episodes of psychosis. Her predominant mood state was depressor though she had brief periods of hypomania and mania. On occasions she had experienced auditory hallucinations, possibly persecutory delusions and disturbance of thought processes in the form of thought disorder or a flight of ideas. Dr Allnutt, too, considered that the applicant’s illness was complicated by difficulties in maintaining her medication due to side effects. He thought, however, that she had improved during the last two months with changes in medication. He thought that she appeared to be coping with the prison environment. He noted that she was continuing to receive psychiatric treatment.

51 Dr Allnutt expressed the opinion that the treatment being offered was appropriate. He thought that there had been fluctuation in her mood since her incarceration, with a depressive episode with psychotic features. However, she had responded to some degree to the medication. He thought that she remained at risk of deterioration in her mental state due to further difficulties in her treatment or to the natural fluctuations of her mental illness. For that reason she would require ongoing psychiatric monitoring with access to medical intervention when required.

52 Dr Allnutt had been asked to comment upon the suggestion that the applicant’s condition might not be able to be adequately managed in custody. He said that while prisons are not ideal places to treat mental illness, inmates with severe mental illness, such as the one suffered by the applicant, had access to Long Bay Hospital and, for women, to B Ward East at Long Bay Hospital. He went on to describe the staffing of those facilities and concluded that overall that he did not believe that the applicant’s case was of a nature or severity that deviated significantly from the kinds of illnesses and medical difficulties that many inmates had within the prison system. He believed that her psychiatric condition could be adequately managed in custody. If her condition became unmanageable transfer to a civil psychiatric or medical hospital could be arranged under the provisions of the Mental Health Act 2007.

53 Dr Allnutt provided a further report on 28 April 2008. He noted reports of the applicant’s recent history and complaints including depression, oedema, amenorrhoea and discussed the variations in the drugs which were being prescribed for her. Dr Allnutt noted that on 28 March 2008 there was a significant improvement in the mood, that she was less sedated since a change of drugs and that there was an improvement in her physical condition. She described hearing voices she said sounded like her mother’s but she was aware they were own thoughts. There were no command hallucinations or delusions.

54 Dr Allnutt saw no reason to alter the opinion expressed in his earlier report. He thought that the notes reflected a recent improvement following changes in her medication. He observed that she remained vulnerable to further fluctuations in her mental state.

55 In my opinion the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence, and on that account her sentence ought to be mitigated. Accordingly, I have come to the view that a lesser sentence than that imposed by his Honour is warranted: s6 (3) Criminal Appeal Act 1912.

56 Because of the conclusion I have reached, it is unnecessary to consider grounds 2,3,4 or 5.

57 I note the large amount of money – just short of $250,000 – with which the applicant was concerned and the considerable period of time over which the three incidents comprising the offence took place. I note that the role of the applicant was that of a courier and not of someone with a greater control and a more intimate knowledge of what was happening. I note that the mental illness from which the applicant was suffering at the time of the offence had some effect upon her ability fully to appreciate what she was being asked to do, though that effect was not great, especially in view of the fact that she was being treated at the time. I also note the content of the things that she said to Dunn on the telephone, which showed that she knew that she was doing wrong, though she may not have known exactly how, and throws doubt upon her later protestation of having been wrongly charged. I note the early plea of guilty and the prior good character of the applicant. I note some evidence of contrition.

58 I propose that the applicant be granted leave to appeal, that the sentence appealed from be quashed and that there be substituted a sentence of imprisonment of two years and six months. The sentence is to be taken to have commenced on 28 September 2007 and will expire on 27 March 2010. I would direct that the applicant be released on 27 March 2009 on a Recognisance Release Order self in the sum of $100.

59 BUDDIN J: I agree with Barr J.

05/06/2008 - Changes to orders - Paragraph(s) Coversheet & paragraph 58