Kelly v The State of Western Australia
[2024] WASCA 116
•30 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KELLY -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 116
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 14 FEBRUARY 2024
DELIVERED : 30 SEPTEMBER 2024
FILE NO/S: CACR 47 of 2023
BETWEEN: TERENCE DARRELL KELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WAGER CJDC
File Number : IND 96 of 2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count that the appellant, with intent to deprive the parents of possession of a child under the age of 16 years, forcibly detained the child, contrary to s 343(1) of the Criminal Code (WA) - Primary judge sentenced the appellant to 13 years 6 months' imprisonment - Whether the primary judge made an error in finding that the appellant's use of methylamphetamine had a significant and causal role in the offending - Bugmy principles - Verdins principles - Manifest excess
Legislation:
Criminal Code (WA), s 343(1)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA, s 15
Result:
Leave to appeal refused on grounds 1, 2 and 3
Leave to appeal granted on ground 4
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | J Condon KC, W C Yoo & K E Turtley-Chappel |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Bensegger v The Queen [1979] WAR 65
Bomford v The State of Western Australia [2013] WASCA 153
Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308
Bowe v The State of Western Australia [2017] WASCA 166
Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cameron v The State of Western Australia [2023] WASCA 149
Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Coutts v The State of Western Australia [2023] WASCA 38
Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509
Dellow v The Queen [2020] NSWCCA 301
DGF v The Queen [2021] WASCA 4
Diamantopoulos v The State of Western Australia [2024] WASCA 82
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Director of Public Prosecutions (Vic) v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110
DS v The Queen; DM v The Queen [2022] NSWCCA 156; (2022) 109 NSWLR 82
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286
Garlett v Balic [2016] WASC 172
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Greenland v The State of Western Australia [2017] WASCA 83
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hiemstra v The State of Western Australia [2021] WASCA 96
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
IEB v The State of Western Australia [2015] WASCA 207
Impicciatore v The State of Western Australia [2020] WASCA 33
Kabambi v The State of Western Australia [2019] WASCA 44
Kosian v The Queen [2013] VSCA 357; (2013) 40 VR 335
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Law v The State of Western Australia [2009] WASCA 193
Lee v The State of Western Australia [2022] WASCA 137
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Lloyd v The Queen [2022] NSWCCA 18
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Miorada v The State of Western Australia [2022] WASCA 143
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Murphy (a pseudonym) v The King [2023] SASCA 107
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Nasrallah v The Queen [2021] NSWCCA 207; (2021) 105 NSWLR 451
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
NHI v The State of Western Australia [2021] WASCA 32
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Paterson v The Queen [2021] NSWCCA 273
Peterson v The State of Western Australia [2019] WASCA 207
Pomana v The State of Western Australia [2020] WASCA 204
R v B (an accused) [1987] 1 NZLR 362
R v Bonython (1984) 38 SASR 45
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Klamo [2008] VSCA 75; (2008) 18 VR 644
R v Massey (1994) 62 SASR 481
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Perry [2022] SASCA 127
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Runjanjic (1991) 56 SASR 114
R v Storey [1998] 1 VR 359
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Turner [1975] QB 834
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Williscroft [1975] VR 292
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
RXA v The State of Western Australia [2022] WASCA 116
Schultz v The Queen [1982] WAR 171
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
SKL v The State of Western Australia [2024] WASCA 32
Smith v The State of Western Australia [2010] WASCA 176
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107
Swift v The State of Western Australia [No 2] [2024] WASCA 23
SYL v The State of Western Australia [2021] WASCA 16
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Maxton [2023] WASCA 174; (2023) 106 MVR 117
The State of Western Australia v Paolucci [2020] WASCA 188
The State of Western Australia v Wilson [2015] WASCA 119
The State of Western Australia v Wynne [2024] WASCA 20
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wheeler v The Queen [No 2] [2010] WASCA 105
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Table of contents
BUSS P
Overview of the facts and circumstances of the offending
The evidence before the primary judge about the appellant's use of illicit drugs
Evidence of Dr Darjee
Dr Darjee's examination-in-chief
Dr Darjee's cross-examination
Dr Darjee's re‑examination
Evidence of Dr Bala
Dr Bala's examination‑in‑chief
Dr Bala's cross‑examination
Dr Cabeleira's report dated 15 November 2022
The primary judge's findings and observations in relation to the facts and circumstances of the offending, the appellant's plea of guilty and the appellant's personal circumstances and antecedents
The State's written submissions at the sentencing hearing before the primary judge about the appellant's use of illicit drugs
Defence counsel's written submissions at the sentencing hearing before the primary judge about the appellant's use of illicit drugs
The State's case at the sentencing hearing before the primary judge about the appellant's use of illicit drugs, the appellant's complex developmental and personality dysfunction and the Bugmy principles
The appellant's case at the sentencing hearing before the primary judge about the appellant's use of illicit drugs, the appellant's complex developmental and personality dysfunction and the Bugmy principles
The primary judge's findings and observations on the expert evidence, the appellant's use of methylamphetamine and the Bugmy principles
Counsel for the appellant's submissions
Ground 1: The primary judge erred in law and fact in finding that the appellant's use of methylamphetamine had a significant and causal role in the offending
Ground 2: The primary judge erred in law in applying the principles in Bugmy
Ground 3: The primary judge erred in law in applying the principles in Verdins
Ground 4: The sentence was manifestly excessive as to length
Counsel for the State's submissions
Ground 1: The primary judge erred in law and fact in finding that the appellant's use of methylamphetamine had a significant and causal role in the offending
Ground 2: The primary judge erred in law in applying the principles in Bugmy
Ground 3: The primary judge erred in law in applying the principles in Verdins
Ground 4: The sentence was manifestly excessive as to length
Ground 1 of the appeal: its merits
Ground 2 of the appeal: its merits
Ground 3 of the appeal: its merits
Ground 4 of the appeal: its merits
The outcome of the appeal and the resentencing of the appellant
MAZZA & HALL JJA
Introduction
Ground 4 ‑ relevant legal principles
Part 2 div 1 of the Sentencing Act
Mental impairment, childhood deprivation and protection of the community
Section 9AA of the Sentencing Act
Ground 4 - relevant facts and personal circumstances
Ground 4 - disposition
SKL v The State of Western Australia
Conclusion
BUSS P:
The appellant has appealed against sentence.
On 5 April 2023, the appellant was convicted on his plea of guilty before Wager CJDC on a count which alleged that between 16 October 2021 and 3 November 2021, at Carnarvon, the appellant, with intent to deprive the parents of possession of LRM, a child under the age of 16 years, forcibly detained LRM, contrary to s 343(1) of the Criminal Code (WA) (the Code).
The maximum penalty for the offence is 20 years' imprisonment.
On 5 April 2023, the primary judge sentenced the appellant to 13 years 6 months' imprisonment. Her Honour backdated the sentence to 3 November 2021 to take account of time the appellant had spent in custody in relation to the offence. A parole eligibility order was made.
The appellant relies upon four grounds of appeal.
Ground 1 alleges that the primary judge erred in law and fact in finding that the appellant's use of methylamphetamine had a significant and causal role in the offending. Particulars of ground 1 assert in essence that her Honour:
(a)misapplied 'the test [applicable to] the relevant inquiry';
(b)disregarded expert evidence given by Dr Rajan Darjee;
(c)rejected Dr Darjee's evidence without a proper basis or rational justification; and
(d)made a 'causal finding between the appellant's drug use and offending [behaviour] that was not available on the evidence'.
Ground 2 alleges that her Honour erred in law in applying the principles in Bugmy v The Queen.[1] Particulars of ground 2 assert in essence that her Honour misapplied those principles in that:
(a)Bugmy requires 'a general and more specific application of principle before [any] question of community protection [arises]'; and
(b)her Honour failed to identify and then consider 'the relevant question under Bugmy'.
[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
Ground 3 alleges that her Honour erred in law in applying the principles in R v Verdins.[2] Particulars of ground 3 assert in essence that her Honour erred:
(a)by '[introducing] the appellant's drug use as causative of the offending';
(b)by failing to accord 'a proper reduction in moral culpability based on the evidence led as to the appellant's complex developmental and personality dysfunction'; and
(c)by failing 'to grapple with the interplay between Bugmy and [the first limb] of Verdins'.
[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
Ground 4 alleges that the sentence was manifestly excessive.
I would refuse leave to appeal on each of grounds 1, 2 and 3. All of those grounds fail. Leave to appeal should be granted on ground 4. That ground has been made out. The appeal should be allowed, the sentence imposed by the primary judge should be set aside and the appellant should be resentenced by this court.
Overview of the facts and circumstances of the offending
At the material time, LRM was aged 4 years.
On 15 October 2021, LRM, her mother, her de facto father and her 18‑month‑old sister were camping at a popular camping location about 75 km northwest of Carnarvon. They planned to stay for two nights.
The family arrived at about 7.00 pm on 15 October 2021 and set up their tent. The parents fed both children and put them to bed at about 8.00 pm. The parents went to bed at about 9.00 pm.
LRM woke between 1.00 am and 2.00 am on 16 October 2021. She then woke her mother and said she was thirsty. After drinking some water LRM fell asleep.
At the material time, the appellant was aged 36 years. He was unknown to LRM and her family.
Between 2.40 am and 4.40 am on 16 October 2021, the appellant arrived at the campsite. He parked his motor vehicle about 200 m from the family's tent. The appellant then explored the campsite area for items to steal. Next, he unzipped the family's tent and saw LRM asleep near the entrance. The appellant picked up LRM and her sleeping bag and removed her from the tent. He carried LRM to his vehicle, placed her on the front seat and drove to his house in Brockman (a suburb of Carnarvon). The appellant lived alone in his house.
The appellant detained LRM in his home for the following 18 days. He made no effort to return LRM to her parents or any place of safety. LRM was not returned to her parents until 3 November 2021 when police located her at the appellant's house.
The evidence before the primary judge about the appellant's use of illicit drugs
On 3 November 2021, police arrested the appellant.
On 3 November 2021 and 4 November 2021, the appellant participated in electronically recorded interviews with police.
During the interview on 3 November 2021:
(a)When asked about his involvement in the disappearance of LRM, the appellant said 'all I know is I was off my chops' (EROI 14).
(b)The appellant said that on the night he stole LRM he was 'off [his] head' (EROI 16).
(c)The appellant said that the last time he had used methylamphetamine was 'last week' (EROI 16).
(d)When asked to explain his statement that he was 'off [his] head', the appellant said 'I just remember inject [sic] drugs and stuff. I don't know.' (EROI 18).
(e)When asked to elaborate upon his statement that he was 'injecting drugs', the appellant said he 'had, like, five … syringes … [He] just have methamphetamine, like. Just help [him] cope with stuff. Like, with everything that goes on in [his] head.' (EROI 19).
(f)The appellant said that he had used '[a] lot' of methylamphetamine. He added that he had 'a half a ball in [him]' (EROI 19).
(g)The appellant said that he had 'chucked' the syringes that he had used 'in the bin … up the road' (EROI 19).
(h)The appellant said that he went to the camping location where he abducted LRM 'cause [he] had some drugs, you know' (EROI 24).
(i)The appellant said that at the time of the offending '[He was] pretty sure, like, the drugs may … help fuel … rage. Like, but [he] wasn't angry. [He] was just … like wanted that adrenaline' (EROI 51).
(j)The appellant said that he was not intending to 'pinch a kid that night'. He added that '[he] only just, like, [he] was intoxicated' (EROI 51).
(k)The appellant said that at the time he drove away from the camping location with LRM he had 'pumped [himself] full of drugs' (EROI 52).
(l)The appellant said that when he abducted LRM he was 'on drugs'. He remembered that he was 'seeing things' but not hallucinating (EROI 52).
(m)The appellant said that on the night in question he was 'at the height of [his] intoxication' (EROI 53).
(n)The appellant said that during the period he detained LRM at his house he would have 'heavy doses' of methylamphetamine. He added that he had 'a rock on [him] and … [he] was planning to sell it'. '[He] cut it down into packets' to sell it, but he 'just use[d] it [himself]' (EROI 106).
During the interview on 4 November 2021:
(a)When asked about his having said in the previous interview that he was 'off [his] chops' on methylamphetamine, the appellant said 'there are parts where when you're on drugs you do remember some things but most things you don't'. The appellant added that when he returned to Carnarvon with LRM he was 'still intoxicated' and 'still revving off [his] head'. He said he became sober '[probably] like the next day' (EROI 75).
(b)When asked about what he touched inside the tent at the camping location where he abducted LRM, the appellant reiterated that at the time he was 'off [his] chops' (EROI 85).
The State brief included a witness statement from Tayunna Cook. In her statement Ms Cook said that she knew the appellant. On 15 October 2021, Ms Cook saw and spoke to the appellant. Ms Cook said she could tell the appellant was 'drug affected' because he was 'fidgety and full of energy'. She added that usually the appellant was 'a lot quieter'. Ms Cook said that the appellant asked whether she and a friend of hers wanted to buy 'any gear'; that is, any methylamphetamine.
The State brief also included a witness statement from Michael Nicolaou. In his statement Mr Nicolaou said that on 1 September 2021 the appellant told him that he had a job and 'wasn't drinking or doing drugs anymore'.
The State brief also included a witness statement from Ryan Robinson. In his statement Mr Robinson said that he saw the appellant on 18 October 2021 and the appellant 'looked like he was off his head on gear'.
The State brief also included a witness statement from Shandelle Kelly. In her statement Ms Kelly said that on 15 October 2021 the appellant arrived at her home. She was very intoxicated. The appellant showed her and her niece 'two little sachets that had some white powder in each'. The appellant told her that the white powder was 'speed'; that is, methylamphetamine. Later that day Ms Kelly was present when another person purchased one of the sachets from the appellant for $100 and the appellant gave the person two clean syringes.
Dr Darjee, a consultant forensic psychiatrist, prepared a written report dated 10 November 2022 and a written addendum report dated 21 February 2023 in relation to the appellant. Both reports were tendered by defence counsel at the sentencing hearing before the primary judge. Dr Darjee interviewed the appellant on five occasions for a total of about 11 hours. Other information provided to Dr Darjee included the State's statement of material facts, the State's redacted amended statement of material facts, the electronically recorded interviews between the appellant and police, and the appellant's historic medical records, Department of Child Protection records and police records. Dr Darjee was instructed by the appellant's lawyers.
In his report dated 10 November 2022:
(a)Dr Darjee recorded that the appellant gave him this information about his substance use [38] ‑ [39]:
He started using cannabis in his early teens and was using it daily by the time he was 18 years old. He reportedly used amphetamine in his teens. He started drinking in his early teens. He has indicated that he stopped using drugs in 2016 but started again after his [maternal] aunt died in 2020.
He undertook some substance misuse counselling when involved with youth justice services, but at the time did not appear to think his drug use (primarily of cannabis at the time) was problematic or that he needed to do anything about it.
(b)Dr Darjee noted that the appellant gave him this information about abducting LRM [63]:
When I asked him about taking the victim, he said he found it difficult to recall as he was on drugs. He said on the night in question 'it just happened'. He denied he had been following children, noting down number plates or taking photos of children in the lead up to the offence. He said this had been fabricated by the police. When I asked him if he had [fantasised] about taking a girl or had planned it, he was hesitant, but denied these. He said it was the early hours of the morning and he had had 'heaps of meth' ('ten points') along with LSD. He had been taking drugs all day and had been at a family funeral that day.
In his addendum report dated 21 February 2023, Dr Darjee responded to written reports dated 25 November 2022 and 20 January 2023 from Dr Sivasankaran Balaratnasingam (Dr Bala), a consultant psychiatrist. Dr Bala was instructed by the Director of Public Prosecutions (WA) on behalf of the State. Dr Bala's report dated 20 January 2023 was tendered by the prosecutor at the sentencing hearing before the primary judge. Dr Bala's report dated 25 November 2022 was not tendered, but defence counsel made reference to the contents of that report during Dr Darjee's evidence‑in‑chief at the sentencing hearing and during defence counsel's oral submissions to her Honour.
In his report dated 20 January 2023, Dr Bala said:
(a)the appellant appeared to have 'impulsively offended while under the influence of methamphetamines';
(b)while the appellant's underlying complex traumas have been present for decades, Dr Bala's hypothesis was that 'the voluntary use of methamphetamine in significant amounts facilitated the offending by allowing [the appellant] to act out his underlying fantasies and distorted cognitions about children'; and
(c)the appellant had 'the capacity to know that he should not use methamphetamines and the alterations that they cause in terms of his behaviour'.
In his addendum report dated 21 February 2023, Dr Darjee said [14] ‑ [15]:
In terms of methamphetamine, it is unclear how much methamphetamine [the appellant] took, and his account of being very intoxicated with it cannot be regarded as reliable, given all the other issues with what he has reported. For example, he may have talked about being affected by methamphetamine as a way of avoiding having to disclose the details of what he did. Unfortunately, there were no biological samples taken to determine if he had taken methamphetamine. If he did take methamphetamine, it does not appear he was highly intoxicated with it, given the descriptions of him, and his ability to drive in a goal directed manner to and from the campsite over several hours. Methamphetamine may have increased his alertness, may have given him the courage to enact his fantasies ... But without objectively knowing how much methamphetamine he took and when, the role it played in the abduction … if any, is unclear. In my view, although it may have been somewhat disinhibiting, it was a minor factor [overall] in determining his behaviour. It was not the primary driver of the behaviour.
Although it is reasonable to form a hypothesis that methamphetamine played a role, I do not think a major role for methamphetamine is supported by the evidence.
Dr Cindy Cabeleira, a clinical neuropsychologist, prepared a written report dated 15 November 2022 in relation to the appellant. The report was tendered by defence counsel at the sentencing hearing before the primary judge. Dr Cabeleira was instructed by the appellant's lawyers.
In her report dated 15 November 2022:
(a)Dr Cabeleira recorded that she interviewed the appellant and performed psychological and cognitive testing on him while he was remanded in custody. The interviews and testing were undertaken during two sessions on 14 October 2022 (which were three hours and two hours respectively in duration) and a third session on 27 October 2022 (which was three hours in duration). Other information provided to Dr Cabeleira included the State's redacted amended statement of material facts and the transcript of the electronically recorded interviews between the appellant and police.
(b)The appellant's psychiatric history over the years (from adolescence into adulthood) was remarkable for illicit substance (amphetamine/speed and marijuana) use and heavy alcohol use.
(c)The appellant told Dr Cabeleira that he was unable to explain his reasoning underpinning the abduction of LRM. The appellant reported 'being under the influence of illicit substances at the time and continuing to use and "binge" on methamphetamine and cannabis throughout the time in which [LRM] was in his custody'.
(d)The appellant admitted to Dr Cabeleira that he had used amphetamine (intravenously and through snorting) from the age of 16. The appellant also told Dr Cabeleira that he had used methylamphetamine from the age of 16, although he denied having used the drug daily.
Dr Darjee and Dr Bala gave oral evidence at the sentencing hearing before the primary judge. I will recount later in these reasons relevant aspects of their oral evidence, including their evidence about the appellant's use of methylamphetamine in the period leading up to the offending and during its subsistence. Dr Cabeleira did not give oral evidence at the sentencing hearing.
Evidence of Dr Darjee
Dr Darjee's examination-in-chief
Dr Darjee's evidence‑in‑chief included evidence to the following effect.
Dr Darjee has practised as a forensic psychiatrist since 2000 and worked as the deputy state-wide director of Forensic Mental Health Services in Tasmania and as an adjunct Associate Professor at the Swinburne University Centre for Forensic Behavioural Science. Dr Darjee has a special interest in personality disorders (ts 38 ‑ 39).
Dr Darjee interviewed the appellant for a total of 11 hours, comprised of five hours in person and six hours remotely. Dr Darjee accessed and read the reports of the Western Australia Police Force and the appellant's child records, which included his child protection case notes from the Department of Child Protection and Princess Margaret Hospital records (ts 41).
Dr Darjee acknowledged that he confronted the following two limitations in writing his report:
(a)Dr Darjee was not able to speak to anyone who knew the appellant well. This limited his ability to diagnose relevant conditions that appear to have started in childhood or adolescence and continued into adulthood (ts 42).
(b)Reconciling the various pieces of information about the appellant's history was not straightforward. Some of the appellant's accounts about his background and recent circumstances were not based in reality. Consequently, the appellant's account formed an appendix to the report, while the information drawn from documents and more verifiable sources formed the body of the report (ts 42 ‑ 43).
In Dr Darjee's view, despite these limitations, he was 'still able to reach an opinion on the issues relevant to the legal questions' in his report and in examination‑in‑chief he stated that where he had to limit his certainty, he had indicated this in his report (ts 43).
Dr Darjee gave evidence that the appellant's account was not based in reality. The 'untruths' in the appellant's account relating to his relationships and having children were not lies that were deliberately created to deceive or manipulate other people. Applying the Paulhus Deception Scale, Dr Darjee identified the appellant's account as self‑deception, which is usually associated with an underlying fragility or shame and occurs where a person is unconsciously trying to protect themselves by saying untruths that put them in a positive light. The clearest example of this is that the appellant believed that he had children and created a Facebook page for each child. These pages interacted with one another and the appellant's own Facebook page (ts 45).
Dr Darjee gave evidence of unreliability in the appellant's self‑reporting and explained that, as much as possible, different tests were used to triangulate multiple pieces of information (ts 45).
The appellant fell in the below average range for impression management, which Dr Darjee said may indicate that he is being quite honest with regards to his social and moral shortcomings (ts 46). The appellant's self‑deceptive enhancement score was well above average. Combined with a low impression management score, this can be reflective of a process where someone is trying to portray things positively to protect themselves (ts 47).
Dr Darjee gave evidence that the appellant is a 'particularly complex' case, and his different diagnoses cannot be clearly separated as they combine to create the psychopathology that he has as an adult (ts 47 ‑ 48).
The appellant has neurodevelopmental problems and a severe history of trauma (ts 48). At the time of the offending and at the time of Dr Darjee's evidence, the appellant had severe personality disorder, probable autism spectrum disorder and complex post‑traumatic stress disorder (PTSD) (ts 49 ‑ 51, 53). These conditions are collectively referred to as 'complex developmental and personality dysfunction' (ts 53).
The appellant's autism spectrum disorder is described as probable because Dr Darjee did not have access to anyone who could provide a detailed description of the appellant as a child and throughout his development. It can also be difficult to differentiate between autism spectrum disorder, attention deficit hyperactivity disorder (ADHD) and the potential impact of other factors like foetal alcohol spectrum disorder. However, what Dr Darjee considered is clear is that the appellant has had impaired brain functioning since he was a young child (ts 49 ‑ 50).
The appellant told Dr Darjee and others that he was sexually abused as a child. However, the appellant has also given other accounts that are contradictory. Dr Darjee 'think[s] it's likely that [the appellant] has suffered sexual abuse but [he] can't say it any more strongly than that' (ts 53).
The appellant has developed a moderate depressive disorder with anxiety, which, in Dr Darjee's view, has developed since he was apprehended and remanded in custody. The appellant is receiving antidepressant medication (ts 54).
The appellant was abandoned by both of his biological parents when he was aged about two years six months. He then went into the care of his maternal aunt, who was also looking after two of her grandchildren. Although she provided some degree of care, she was not able to overcome the damage that was done or to buffer the appellant against some of the damage that was done through his later experiences in the extended family. Early life experiences relating to attachment and trauma are common precursors to the development of a personality disorder. The absence of nurturing parental figures creates problems in the ability to relate and function emotionally later in life (ts 56 ‑ 57).
Dr Darjee adopted two approaches to testing: the International Classification of Diseases 11th Revision (ICD-11) (a dimensional approach) and the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM‑5) (a categorical approach) (ts 57). Dr Darjee emphasised that even when using categorical labels, they must be seen in dimensional terms (ts 58).
Dr Darjee used two types of instruments in testing: the self‑report measure and the semi‑structured interview (ts 58). To manage the impact of the problems with the appellant's reality testing on the self‑report measure, the Millon Clinical Multiaxial Inventory 4th Edition (MCMI‑IV) was used to assist with interpretation (ts 58). The self‑report measure was also triangulated with the semi‑structured clinical interviews and the other material being used to form Dr Darjee's clinical judgment (ts 59).
The appellant had 'marked elevations' on the paranoid and schizotypal scales, which is indicative of severely impaired personality pathology (ts 59). Dr Darjee's report described the appellant as having marked identity disturbance and 'impaired reality testing on the border of psychosis'. There is a risk that the appellant could transition from borderline psychotic to psychotic under stress. However, as the appellant has not already developed schizophrenia, Dr Darjee considered that, given his age, it is unlikely that he will now develop it (ts 60).
Dr Darjee found the appellant to have paranoid, schizoid and antisocial personality disorders at a diagnostic threshold and schizotypal, borderline and narcissistic traits at an elevated level (ts 62).
Dr Darjee explained that a trait domain under the DSM‑5's alternative model is a collection of personality traits that have been found to occur together more than would be expected by chance. Dr Darjee's report stated that the appellant's trait domains had 'high levels of detachment, disinhibition, significant levels of negative affectivity, antagonism and psychoticism' (ts 65). The trait facets underpinning the broader trait domains were 'hostility, suspiciousness, restrictive affectivity, impulsivity, risk taking and lack of rigid perfectionism'. The appellant also had 'moderate elevations on perseveration, withdrawal, intimacy avoidance, distractibility, unusual beliefs and experiences, and cognitive perceptual dysregulation' (ts 66).
Dr Darjee also applied the ICD‑11 diagnostical tool, which is a dimensional approach. The appellant was assessed as having traits of 'prominent detachment and disinhibition alongside significantly elevated levels of negative affectivity, dissociality and anankastia'. Anankastia is a term used to refer to people who are obsessional, inflexible and rigid. Dr Darjee agreed that the results from the application of the DSM‑5 and ICD‑11 were consistent with each other (ts 67).
In his report, Dr Darjee considered that factors relevant to the appellant's probable autism spectrum disorder included an apparent family history of autism spectrum disorder, exposure to alcohol in utero and as a young child, and comorbid ADHD in childhood. Dr Darjee gave evidence that it is likely that the appellant had a very high level of exposure to alcohol before and soon after his birth (ts 68). The comorbid ADHD is part of the underlying neurodevelopmental vulnerability of the appellant to problems with behaviour and cognitive functioning (ts 69).
Dr Darjee disagreed with Dr Bala's view that there was limited support for a diagnosis of autism spectrum disorder due to concerns about the veracity of the appellant's self‑report. Dr Darjee stated that his conclusion was not just based on the self‑report, it was based on all the information available to Dr Darjee which included the screening tests and records from people who knew the appellant when he was younger (ts 69 ‑ 70).
Dr Darjee agreed with Dr Bala's description of classic features of autism spectrum disorder but considered that different people with autism spectrum disorder present in different ways. Dr Darjee gave evidence that even though the appellant does not have the types of interactional difficulties classically seen in people with autism spectrum disorder, he does have many other features (ts 70 ‑ 71).
Dr Darjee considered that the appellant has mild, as opposed to severe and impairing, autism spectrum disorder (ts 72).
Dr Darjee agreed with Dr Bala's opinion that a diagnosis of complex PTSD is often used in the alternative ICD‑11 system to describe individuals with a combination of PTSD and personality disorder because of trauma. Dr Darjee gave evidence that it was impossible to disentangle the appellant's complex PTSD and personality disorder (ts 72 ‑ 73).
Dr Darjee concluded that the appellant retreated into a world of fantasy at a young age. Dr Darjee referred to other individuals with this presentation and observed that it tends to start at a young age in response to trauma, alongside developmental and personality difficulties. Dr Darjee also referred to a note in the records from when the appellant was a teenager which reported the appellant saying he had children when he did not (ts 75).
In the record of police interview, the appellant asserted that he was 'off his chops' and had taken a 'half-ball' of methylamphetamine (ts 78). The appellant also stated that he did not remember much about the night of the child stealing. He stated that he had been speeding around in his car and did not intend to take a child, but also that he 'was up to no good that night'. In the interview with Dr Darjee, the appellant said he found it difficult to recall what happened, he had taken 10 points of methylamphetamine together with LSD and had been to a family funeral that day (ts 79).
Dr Darjee gave evidence that the fact that by his own admission the appellant was drug affected on the night of the child stealing offence did not affect his conclusions as to the appellant's complex personality dysfunction and other compromised mental functioning at the time of the commission of the offence. The appellant's admissions about taking drugs also did not impact Dr Darjee's assessment of the contribution of those factors. Dr Darjee considered that what the appellant did is not the type of offending that is driven by methylamphetamine use. While taking drugs would have been a contributory factor, it would not have been the key factor or the thing that was driving the offending (ts 79).
Dr Darjee gave evidence that to understand the appellant's complex psychopathology, the severe personality disorder, complex PTSD and probable autism spectrum disorder all needed to be viewed together (ts 81). Dr Darjee disagreed with Dr Bala's view that a lead diagnosis contributing to the offending needed to be determined (ts 80).
Dr Darjee agreed with the statement in Dr Bala's report that considerable cognitive effort was involved in the child stealing. It involved a significant amount of time driving. On the return journey the appellant had a goal in mind of where he was going and what he was going to do. However, this did not dilute the conclusion Dr Darjee had drawn about the complex developmental and personality dysfunction operating at the relevant time (ts 81).
Dr Darjee had difficulty with a statement in Dr Bala's report indicating that the way in which the appellant offended meant he could not have been so affected by substances to be amnesic (ts 82).
Dr Darjee gave evidence that there were various complex factors that might lead to the appellant being amnesic. It is not simply that he is pretending that he does not remember because he was on drugs. The appellant felt ashamed and was aware of other people's view of offences of this nature and so he protected himself by saying that he could not remember. He also has problems with reality testing. If he did take methylamphetamine, it was not to the extent that he was completely disorganised, given the nature of the offending (ts 83).
In his report, Dr Darjee identified the following features of the appellant's conditions that facilitated his offending: an inability to relate to and be intimate with others; not being able to see things from other people's perspective; becoming fixated on things; being emotionally and socially withdrawn and detached; being suspicious and fearful of others; having a severely disturbed identity; low self‑esteem; grandiose and idealised fantasies; severely compromised reality testing; inability to regulate his emotions; and struggling to deal with feelings of dysphoria and psychological pain (ts 87).
Dr Darjee explained that these factors impaired the appellant's judgment and diminished his capacity to make healthy decisions, think rationally, and understand the wrongfulness of his actions (ts 89 ‑ 91). While in his police interview the appellant did speak of having done something wrong, Dr Darjee explained that this is different from appreciating the wrongfulness of his actions. What is said after the fact is not necessarily indicative of an individual's mental state at the time of the behaviour (ts 91).
On several occasions while the appellant detained LRM, he feigned concern to various third parties, both online and in person, that LRM was missing (ts 93). The prosecution commented that this was callous, calculated and planned conduct. Dr Darjee gave evidence that this was not an accurate characterisation of the appellant's conduct and was too simplistic (ts 94). Other aspects were involved, including that the appellant wanted to be important in his mind by talking about what he had done. He was making these comments to people he was coming across rather than deliberately seeking people out and showing a type of forensic awareness (ts 95). The appellant befriended LRM's mother on Facebook, which was not a good way to evade detection (ts 96).
Dr Darjee conducted a risk assessment and concluded that the appellant's risks could be managed but there would need to be a high degree of intervention and supervision in place. It is not a risk that could be managed by the appellant himself or through treatment alone (ts 96 ‑ 97).
Dr Darjee considered that the responsivity principle, which requires treatment to be delivered in a way that takes into account an individual's complex conditions, would need to be applied to the appellant's treatment. In his report, Dr Darjee listed potential treatment options as including long term individual psychological treatment with an experienced psychologist or psychotherapist, support from services that understand the appellant's complex presentation, and antidepressant medication (ts 99 ‑ 100).
Dr Darjee was not able to comment on the availability of various treatment options in the Western Australian correctional system (ts 100). Without the supervision and monitoring interventions, Dr Darjee considered that the appellant's prospects of rehabilitation would be very poor. With the appropriate interventions and support, Dr Darjee considered that the appellant's prospects of rehabilitation would be fair (but not good or very good) (ts 101).
In a second instalment of his evidence‑in‑chief, after Dr Darjee confirmed he had read a further report by Dr Bala, Dr Darjee gave the following evidence.
Dr Bala's report identified that the main difference between his opinion and Dr Darjee's opinion related to the effect of methylamphetamine use on the appellant's personality disorder. Dr Darjee did not agree with Dr Bala that the appellant's voluntary intoxication was more likely than the personality deficits to have been the bridge that moved the appellant to offending. Dr Darjee also did not agree that the methylamphetamine intoxication played a major role in the offending and emphasised that it is unknown how much methylamphetamine the appellant had taken at the time that the child stealing occurred (ts 5).
Dr Darjee agreed that methylamphetamine can affect confidence and alertness. The appellant's accounts, including of intoxication, are potentially highly unreliable. Overall, Dr Darjee considered that methylamphetamine may have played a minor role in the child stealing offending (ts 6).
Dr Darjee did not view methylamphetamine use as a gateway factor in the appellant's offending and the fact that the appellant may have had the capacity to know that he should not use methylamphetamine did not add anything (ts 8 ‑ 9).
Dr Darjee did not think he could have explored the extent to which methylamphetamine use emboldened the appellant any further than he did in the clinical interviews (ts 10). Methylamphetamine intoxication at the time of the child stealing would not make any difference to Dr Darjee's assessment as to the presence of the complex neurodevelopmental and personality dysfunction (ts 11).
Dr Darjee's cross-examination
In cross‑examination, Dr Darjee agreed that the reliability of the appellant's information was at times questionable (ts 11). This also included occasions where his historical accounts were contradictory to objective evidence, such as accounts of the number of children he had or accounts of him visiting Scotland (ts 11 ‑ 12).
Regarding the sources of information available to Dr Darjee, he was not able to speak to anyone who knew the appellant. Dr Darjee gave evidence that it was important that he was aware of the discrepancies and the unreliability in the information reported by the appellant (ts 12). The final diagnosis of complex developmental and personality dysfunction was based primarily on the collateral sources of information (observing the appellant, documents describing his childhood, his presentation in police interviews and the structured tests and semi‑structured interviews). The information was then put together and the limitations of each source considered (ts 13).
Dr Darjee explained that he had come to the best overall formulation that he could and that it did not have to be done in a particularly tentative way. Dr Darjee said that an inability to interview the appellant would place limitations on a psychiatric opinion (ts 14).
When asked whether the tests administered to the appellant had been validated in respect of ethnically and culturally diverse groups, Dr Darjee stated that there is limited specific validation of mental health assessments for Aboriginal Australians. Dr Darjee referred to a study that found a personality tool was valid across both Indigenous and non‑Indigenous groups in Canada. Dr Darjee also referred to a researcher in China who concluded that personality disorder is quite similar regardless of sociocultural status (ts 14 ‑ 16).
Dr Darjee gave evidence that when a tool has not been specifically validated for Aboriginal Australians, it can still be used in a way that is helpful when it is applied thoughtfully and with an awareness of potential issues (ts 17). Dr Darjee agreed that there is an evaluative judgment and contribution made by the psychiatrist to make sure that the test is interpreted in respect of the individual case. Dr Darjee had never previously assessed someone from Western Australia; however, he had experience assessing Aboriginal Australians from other States (ts 18).
Dr Darjee agreed that his evaluation would have been assisted by having more experience assessing Aboriginal Australians from regional Western Australia (ts 18).
Dr Darjee agreed that 'complex developmental and personality dysfunction' was an umbrella term (ts 20). Dr Darjee agreed that he prefers the dimensional approach over the categorical approach (ts 21). However, both approaches are recognised within the field of psychiatry. For example, the DSM‑5 has the categorical approach, and the dimensional approach is called the DSM alternative approach (ts 22).
Dr Darjee accepted that methylamphetamine use acts as a disinhibitor, but did not consider it to be a gateway factor in the appellant's case. It might have played a role alongside the other factors, but it was not necessarily a crucial factor (ts 28).
Dr Darjee accepted that methylamphetamine use can contribute to poor decision making. He distinguished between the appellant's offending and the kind of impulsive or disorganised decision making caused by methylamphetamine. Dr Darjee did not know to what extent the appellant was affected by methylamphetamine at the time of the offending. If the appellant did take methylamphetamine, it would have emboldened him and made him more alert and confident. However, it would not have had an impact in terms of acting impulsively because it took the appellant five hours to travel, take the child and get back home. Dr Darjee accepted that the more methylamphetamine people use, the more disinhibited they are (ts 29).
Dr Darjee accepted that in the electronic record of interview the appellant indicated that he used methylamphetamine to a significant degree. The appellant also told Dr Darjee that he had been taking drugs all day on the day of the offending. There was collateral evidence of the appellant being in possession of and selling drugs in the hours before the child stealing and again after the child stealing. A witness described the appellant as fidgety and full of energy and said that, in her opinion, he was on drugs (ts 30).
Dr Darjee accepted that there was information which would indicate that the appellant had access to and had used methylamphetamine proximate to the child stealing. However, the information did not show how much he had taken (ts 31).
Dr Darjee accepted that if it was known that the appellant was clearly taking drugs during the offending and then not taking drugs when he was not offending, there would be a correlation. If that was the case, then clearly methylamphetamine would have played a role in disinhibiting him. Dr Darjee would not say it was a major factor, but would give it slightly more weight (ts 33 ‑ 34).
It was put to Dr Darjee that the public interactions the appellant engaged in during the child abduction were to avoid detection or because of a callous disregard. Dr Darjee disagreed and considered that the behaviour had two functions. First, the appellant was trying to appear normal and continue to act like other people in the area at that time. Secondly, the appellant was wanting to have interactions that would enable him to remind himself of what he had done (ts 35). To understand why the appellant acted in this way, his underlying conditions of complex developmental and personality dysfunction must be understood (ts 36).
Dr Darjee explained that genes and brain functioning contribute to a personality disorder. Early experiences, including trauma and attachment, are also important factors. Dr Darjee considered that while the appellant's trauma likely played a very significant role, it would be wrong to say that the appellant's dysfunctional personality and complex presentation were primarily or only due to his trauma (ts 37). Other relevant factors include the appellant's inherited genetics and the impact of his mother's alcohol use (during pregnancy) on his brain development. Another factor which falls under the umbrella of trauma more broadly is the appellant's relationships, both growing up and in adulthood. The appellant has significant vulnerability in all of these domains (ts 38).
Dr Darjee's re‑examination
In re‑examination, Dr Darjee gave evidence that he would not have been comfortable reaching his diagnostic conclusion without interviewing the appellant. Conducting interviews gave Dr Darjee an opportunity to interact with the appellant and hear from the appellant about his background and development. Dr Bala did not interview the appellant, so his report is a commentary rather than a psychiatric assessment (ts 43).
Seeking a peer review or second opinion was not something Dr Darjee would automatically do in this type of case as he did not think it would change anything in terms of the information that he had to consider or the diagnosis in the appellant's case (ts 44).
Evidence of Dr Bala
Dr Bala's examination‑in‑chief
Dr Bala's evidence‑in‑chief included evidence to the following effect.
Dr Bala is a consultant psychiatrist. Dr Bala's psychiatry practice has been predominantly with Aboriginal and Torres Strait Islander Australians in the Kimberley and Pilbara regions of Western Australia (ts 45). Dr Bala has done forensic assessments since 2007, producing medico‑legal reports for the Department of Justice and giving evidence in court regarding those reports (ts 46).
The material available to Dr Bala in preparing his report included the sentencing brief, the material provided by the State, including witness statements, the electronic record of interview between the appellant and police on 3 and 4 November 2021, and the same material that was available to Dr Darjee regarding the appellant's historic medical records, Department of Child Protection records and police records (ts 48).
Dr Bala was not given an opportunity to assess the appellant in clinical interview. Dr Bala acknowledged the resulting limitations this placed on his ability to provide an opinion in respect of making a clinical diagnosis and recognised that it would be inappropriate to make a diagnosis about a person without seeing them (ts 47 ‑ 48).
Dr Bala gave the following evidence regarding Dr Darjee's report (ts 49):
(a)Dr Darjee's diagnosis of complex developmental and personality dysfunction was open in the field of psychiatry and on the application of proper methodology recognised and known by the field of psychiatry.
(b)Dr Darjee's diagnosis of complex PTSD was available on the material provided at a clinical interview given by the appellant to Dr Darjee.
(c)Dr Darjee's observations of autism spectrum disorder were capable of being made on the material available to Dr Darjee. However, Dr Bala would have liked to have interviewed the appellant himself.
In his report, Dr Bala concluded that voluntary intoxication with methylamphetamine may have been the bridge that moved the appellant to offending; much more so than any personality deficits (ts 49 ‑ 50).
Dr Bala gave evidence that in his opinion, based on his clinical experience generally and without having interviewed the appellant, the methylamphetamine use was critical in moving the appellant from having thoughts to acting upon them (ts 52).
Dr Bala's cross‑examination
In cross‑examination, Dr Bala accepted the following propositions that were put to him:
(a)Dr Bala had provided a 'professional commentary' and was limited by not being able to interview the appellant (ts 54 ‑ 55).
(b)Dr Bala deferred to Dr Darjee's opinion (as it was informed by the interviews that Dr Bala's opinion lacked). However, Dr Bala maintained that there were areas in which he may potentially disagree with Dr Darjee (ts 55). One area where Dr Bala's commentary diverged from Dr Darjee's was the relevance of the appellant's methylamphetamine use (ts 56).
(c)Dr Bala was not in a position to disagree with Dr Darjee's report regarding the appellant's fantasies because Dr Bala had no other information about the fantasies (ts 56 ‑ 57).
(d)In stating in his evidence‑in‑chief that he would have liked to interview the appellant himself, Dr Bala was not seeking to criticise Dr Darjee's methodology or the manner in which he assessed the appellant (ts 57).
(e)Methylamphetamine use may or may not have been the bridge to the appellant's offending. Dr Bala agreed he was in no position to give a definitive conclusion on whether it was in fact the bridge to the offending (ts 57).
(f)Dr Bala would have to reconsider his hypothesis of methylamphetamine as the bridge to the offending if the appellant's self‑reporting of his methylamphetamine use was unreliable (ts 58). Dr Bala's hypothesis was unable to be tested as Dr Bala did not interview the appellant (ts 60).
Dr Bala viewed the appellant's methylamphetamine use as a significant factor in the offending, but he had no way of objectively knowing how much the appellant had used beyond his self‑report (ts 62 ‑ 63).
Dr Cabeleira's report dated 15 November 2022
Dr Cabeleira expressed the following opinions in relation to the appellant in her report dated 15 November 2022:
[The appellant] obtained Average performances across most of his cognitive profile and exhibited particular strengths and proficiencies in his nonverbal/visuospatial skills, general knowledge and in aspects of his verbal/language‑based executive abilities (i.e., verbal generativity), with these performances ranging from high end of Average to Very Superior. Nevertheless, within this context a number of mild to moderate weaknesses were observed. More specifically, he demonstrated mild to moderate deficits in aspects of his executive functions (i.e., simple visual strategy formation/problem solving, verbal organisation, response inhibition, divided attention/cognitive flexibility, and mental tracking/self‑monitoring), as well as mild weaknesses in his numerical abilities (including academic numeracy) skills. Variability/inefficiencies in facets of his attention (i.e., in his ability to consistently focus his attention), visuomotor speed, and auditory working memory (i.e., his ability to temporarily hold auditory information in memory). Learning and memory functions, whilst undermined by his attentional/executive weaknesses otherwise remained essentially preserved.
Overall, his neuropsychological profile appears primarily characterised by subtle visuomotor slowing and mild to moderate attentional/executive deficits which appear to cause variability in his learning and memory functions. His profile upon the WAIS‑IV [Wechsler Adult Intelligence Scale - Fourth Edition] and largely intact cognitive profile were not indicative of an intellectual disability. Rather [the appellant] appears to generally be of Average intelligence, and aspects of his presentation, self‑reported and documented history, together with his (attentional/executive) pattern of cognitive deficits on testing are consistent with a pre‑existing diagnosis of ADHD. However, [the appellant's] cognitive weaknesses would also not be unexpected given his extensive childhood trauma and history of illicit substance use beginning early in the developmental period, both of which typically lead to similar attentional/executive impairments. Moreover, his mother's use of alcohol and illicit substances during her pregnancy with [the appellant] could not be confirmed, though was highlighted in his available medical records as being quite probable. Thus, it is considered highly likely that his attentional/executive deficits may be associated with his prenatal exposure to alcohol and illicit substances and thus possibly represent the presence of fetal alcohol spectrum disorder (FASD). There may also be at least some contribution to his current cognitive profile from his vascular risk factors (which appear to not always have been well‑controlled or managed) and possible Sleep Apnoea.
…
Certainly, [the appellant] does appear to have some traits (i.e., restricted, repetitive patterns of behaviour, interests, and activities that are abnormal in focus and intensity) that are typically characteristic of a neurodevelopmental condition such as ASD [autism spectrum disorder]. Also, his longstanding difficulties with emotion regulation would not be unexpected in ASD. However, he is not considered to meet formal criteria for such a diagnosis given the lack of persistent deficits in social communication and interaction (based on aspects of his presentation, self‑reported and documented developmental and educational history). Whilst acknowledging that there is some documented history of early language difficulties at school requiring remediation, his current cognitive profile (which was characterised by no significant difference between his Average verbal/language and nonverbal/visuospatial abilities) was also not strongly reflective or suggestive of an ASD diagnosis. It is unclear whether his restricted, repetitive patterns of behaviour, interests, and activities may have developed in association with his childhood trauma and longstanding emotional dysregulation.
His childhood trauma (some of which it seems he is not always willing to disclose possibly due to feelings of shame), resultant depressive and anxiety‑related symptoms since childhood, chronic illicit substance abuse (commencing early during the developmental period), and antisocial and narcissistic traits (and a probable personality disorder) are likely further contributing to his cognitive profile, behaviour, and offending, more generally. (original emphasis)
Dr Cabeleira said that the appellant requires psychological/counselling input to gain increased self‑awareness of, and insight into, his history of trauma and behavioural issues, and how these may have contributed to his current offending. It is also important for that input to assist in improving the appellant's low mood and anxiety. It is also important that the appellant receive substance abuse counselling because his use of illicit substances appears to be a maladaptive coping strategy and contributes to his ongoing mental health issues and his offending more generally. The appellant would benefit from engaging in community activities and from long term and stable employment, upon being released into the community, to assist in expanding his social network and supports and in developing a more structured routine. This would in turn assist in improving his low mood and anxiety and in addressing long‑standing feelings of loneliness and abandonment and low self‑esteem.
The primary judge's findings and observations in relation to the facts and circumstances of the offending, the appellant's plea of guilty and the appellant's personal circumstances and antecedents
The primary judge elaborated in her sentencing remarks upon the facts and circumstances of the offending that I have recounted.
Her Honour made these findings and observations (ts 13 ‑ 17):
(a)During the 18 days of detention, LRM was at times locked in a bedroom alone for many hours when the appellant was not at his house.
(b)After the first few days of detention, LRM never went outside the house. She was locked inside. LRM pleaded with the appellant to be taken to her parents. She asked mainly for her mother. The appellant played a radio loudly in the bathroom to ensure that his neighbours would not hear any noise LRM made.
(c)The appellant was aware at an early stage that the authorities were looking for LRM and that her parents were very concerned.
(d)The appellant left LRM alone in the house on a regular basis.
(e)The appellant told police after he was arrested that he played with LRM but, on occasions, he smacked her 'a little bit'. He also told police that LRM cried 'a fair bit'. The appellant admitted that he had 'tied [LRM] up' but added that he had 'just used sticky tape'. He added that the sticky tape 'wasn't working' and he attempted to tie her to a chair more securely, but she was 'a bit of a fighter'.
(f)After abducting LRM, the appellant changed his mobile telephone. Later, he burnt the underwear and bedding that LRM had been wearing or using when he abducted her.
(g)The appellant's conduct in abducting LRM was 'at the highest level of seriousness'.
(h)It was not suggested that the appellant's conduct was premeditated, in the sense that he targeted the family or the child, but when the appellant was inside the family's tent and saw LRM, he decided to abduct her.
(i)After abducting LRM, the appellant did not reconsider his conduct. He did not return LRM to her parents or the police and he did not inform the authorities that LRM was alive. The appellant did not demonstrate, before he was arrested, any actions that were consistent with the appellant intending to return LRM.
(j)LRM's abduction 'shattered her family' and was 'damaging and traumatising for [LRM]'. Her Honour elaborated (ts 15 ‑ 16):
[LRM's] parents describe their trauma in a victim impact statement as having their lives ripped apart. The family spoke about their desperation, shock, and fear to the community via media at the time, so a little of their pain was known to others. However, the fear and distress caused to them over those 18 days was immeasurable.
The child's life and that of her family has been permanently impacted, and that impact will never go away. Her parents were sad, scared and confused. They described being too fearful to sleep, watching the same space at the blowholes each day while feeling completely empty and broken. They stayed at the place that caused them so much pain, hoping their little girl would be located.
When rain set in, they were told the SES search would not be conducted during the night. They were devastated by this news, fearing that, if the search didn't continue at full pace, their little girl was even more at risk. They were further shattered when police put out a $1 million reward. They were gutted when the physical act of searching finally ended.
(k)It would have been very traumatic for LRM to be separated from her parents for 18 days without contact or explanation.
(l)On apprehension by the police, the appellant agreed to participate in an electronically recorded interview. Shortly after the interview began, the appellant admitted abducting LRM and offered to return her. Fortunately, by that time, the police had already recovered LRM. However, the appellant's cooperation with police during the interview was genuine.
On 12 January 2022, the appellant pleaded guilty to the charged offence in the Magistrates Court. The plea was entered after two mention hearings. The appellant was committed, by way of fast‑track, to the District Court for sentencing. Her Honour found that, notwithstanding the strength of the State's case, the appellant's plea of guilty had significant utilitarian value. Her Honour reduced the head sentence she would otherwise have imposed by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
The primary judge referred in some detail to the appellant's personal circumstances and antecedents (ts 17 ‑ 19). The appellant was aged 36 at the time of the offending and was aged 37 when sentenced. He is a Yamatji man who had been exposed to chronic and complex trauma and to profound disadvantage from very early childhood. This had resulted in early neurodevelopmental impairment. The appellant's exposure to childhood trauma had significantly compromised his mental functioning. The appellant's mother drank alcohol heavily and used cannabis. His father abused alcohol and was aggressive and violent. When he was aged about two years six months, the appellant was abandoned by both parents. He was placed in the care of his maternal aunt. Prior to the appellant coming into her care, the maternal aunt had found alcohol in the appellant's baby bottles. The lack of care given to the appellant as an infant damaged him physically, mentally and developmentally.
The appellant lived in Carnarvon for most of his childhood. At the age of six years he was diagnosed with ADHD and was prescribed dexamphetamine. The appellant suffered bilateral conductive hearing loss from early childhood or possibly from birth. He refused to wear hearing aids because he was bullied by other children. His hearing loss contributed to problems with learning and language. His speech and hearing difficulties were likely to have separated him further from other people when he was young.
When he was aged seven the appellant's behaviour changed suddenly. He disliked and feared some of his relatives, including uncles who abused alcohol and became violent.
When he was aged 12 further changes in the appellant's behaviour occurred. He became suicidal and his maternal aunt found sharp objects under his bed. He was admitted to hospital.
When he was aged 13 the appellant was an inpatient for one month at Princess Margaret Hospital. He was diagnosed with oppositional defiance disorder, ADHD, nocturnal enuresis and bilateral conductive hearing loss.
When he was aged about 14 and commencing secondary school, the appellant spent two weeks in his father's care. During that period the father was violent and abusive towards the appellant. When he returned to his maternal aunt's care, the appellant was very angry and agitated, and his behaviour deteriorated significantly. Also, when he was aged about 14, the appellant saw his mother for the last time and a good friend, who was aged 12, hanged himself.
The appellant was expelled from secondary school in his first year. The appellant's conduct, including conduct attributable to his ADHD, enuresis, bulky stature and antisocial attitude, contributed to his alienation from school. The appellant had a trial period at another secondary school, but by February the following year he was suspended because of behavioural problems. After that time the appellant did not have any further formal schooling.
The cessation of the appellant's formal schooling coincided with his maternal aunt's inability to cope with the appellant at home because he was acting out and violent. The appellant ceased to live with his maternal aunt. Two or three years later, his maternal aunt's de facto partner, who was the appellant's only male role model, died. The appellant was provided with counselling sessions, but they did not continue.
The appellant has a prior criminal record as an adult. His previous convictions include convictions for burglary, dishonesty, motor vehicle and drug related offences. In 2014, when he was aged about 29, the appellant served a term of immediate imprisonment for aggravated burglary. In 2017, after serving a term of immediate imprisonment for dishonesty offences, the appellant returned to live with his maternal aunt in Carnarvon. In 2020, his maternal aunt died. Thereafter, the appellant lived alone in the house he had shared with his maternal aunt. That was the house where he detained LRM.
The State's written submissions at the sentencing hearing before the primary judge about the appellant's use of illicit drugs
On 2 December 2022, the State filed and served a written outline of the State's sentencing submissions. In the written outline the prosecutor submitted that there were a number of aggravating factors in relation to the offending. The specified aggravating factors did not include the appellant's ingestion of methylamphetamine. The written outline also referred to mitigating factors. The specified mitigating factors did not include the appellant's ingestion of methylamphetamine. The sole reference in the written outline to the appellant's use of illicit drugs was in the context of the appellant's electronically recorded interview with police on 3 November 2021. The outline noted that during the interview the appellant stated that he had 'limited recollection of taking [LRM] because he was on methylamphetamine' [17].
Defence counsel's written submissions at the sentencing hearing before the primary judge about the appellant's use of illicit drugs
On 8 December 2022, the appellant's lawyers filed and served a written outline of the appellant's sentencing submissions. In the written outline defence counsel made these submissions about the appellant's use of illicit drugs:
(a)Numerous matters specified in the written outline were relevant to the primary judge's assessment of the objective gravity of the offence of child stealing, including the appellant's 'responses relevant to his state of mind in the lead‑up to the offending' including that he was 'off his chops' on methylamphetamine [24(b)].
(b)The outline stated that the appellant relied upon numerous facts to support the proposition that the appellant's background was 'mired in disadvantage, dysfunction and deprivation', including that he used '[a]lcohol and cannabis … from early teenage years' [103(i)].
The State's case at the sentencing hearing before the primary judge about the appellant's use of illicit drugs, the appellant's complex developmental and personality dysfunction and the Bugmy principles
At the sentencing hearing before the primary judge on 24 February 2023 the prosecutor made submissions to the primary judge as follows:
(a)The State did not dispute that 'a severe personality disorder is capable of amounting [to] or engaging Verdins' and that 'it is bad law to say as a blanket rule that a personality disorder is not capable of engaging the principles pronounced in Verdins' (ts 75).
(b)'Verdins is engaged on the evidence' in that 'there is an evidentiary basis for your Honour to consider that, and the State submits that, your Honour should reduce moral culpability on the basis of [the appellant's] … complex developmental and personality dysfunction' (ts 76 ‑ 77).
(c)The State agreed with defence counsel's submission that Verdins 'stands apart [from] the application of the principle[s] … in Bugmy' (ts 77).
(d)The focus of the prosecutor's submission was on 'the role of methylamphetamine'; in particular, on the issue of the relevance of the appellant's methylamphetamine use as 'the causal connection to the offending' (ts 77). The prosecutor elaborated (ts 77):
Can I make it clear, your Honour, that it's not the State's submission and never has been that somehow the presence of methylamphetamine disconnects or displaces the role that the mental impairment has, which it may well do in other circumstances where there's the presence of voluntary intoxication and the availability of a mental defence. That is not the State's submission.
What your Honour is faced with in respect of the assessment of moral culpability is really three, if not four, parallel issues that could reduce the moral culpability of [the appellant] and should in respect of two of them, the mental impairment and the Bugmy factor.
(e)When consideration is given to 'the moral culpability that is reduced by reason of the principles … in Bugmy and the application of the Verdins principle in mental impairment', consideration must be given to 'how was the mental impairment, how was the profound childhood deprivation, causative [of] the offending?' (ts 78).
(f)The State's case was that 'at the same time' as the appellant's complex developmental and personality dysfunction was operative on the appellant's mind, what was also operative on the appellant's mind was 'the impact of methylamphetamine use'; in particular, the 'disinhibitor effects' of methylamphetamine use (ts 79). The prosecutor added (ts 80):
So the question, your Honour, becomes one of weight in regards to how much does one reduce moral culpability when assessing properly the childhood disadvantage, assessing properly the mental impairment, but taking in due consideration all those factors in regards to the exercise of appropriate judgment, the impairment on [the appellant's] ability to make rational choices, the disinhibition of [the appellant] and the impairment of [the appellant's] ability to appreciate the wrongfulness of his mind.
It's not one or the other, it is all of them, and save for one, the methylamphetamine, they … were operative on [the appellant's] mind at the time that he committed the [offence].
(g)The prosecutor submitted that 'how methylamphetamine use played a role alongside being a disinhibitor of [the appellant's] mental impairment and also [the appellant's] profound childhood disadvantage … is important in [your Honour's] assessment of the reduction of moral culpability for the mental impairment … It moderates it.' (ts 84).
The appellant's case at the sentencing hearing before the primary judge about the appellant's use of illicit drugs, the appellant's complex developmental and personality dysfunction and the Bugmy principles
The appellant's case at the sentencing hearing before the primary judge was that in Verdins the Court of Appeal of Victoria recognised that mental impairment may be relevant to sentencing in six different ways, namely:
(a)by reducing the offender's moral culpability (first limb);
(b)by influencing the kind of sentence to be imposed (second limb);
(c)by moderating or eliminating the need for general deterrence (third limb);
(d)by moderating or eliminating the need for specific deterrence (fourth limb);
(e)by making a sentence weigh more heavily on the offender than on a person in normal health (fifth limb); and
(f)by creating a serious risk of imprisonment having a significantly adverse effect on the offender's mental health (sixth limb).
Defence counsel submitted that the evidence in the appellant's case engaged the first, third, fourth and fifth limbs of Verdins.
It was submitted that the reasoning in Verdins was adopted and approved by this court in Krijestorac v The State of Western Australia.[3]
[3] Krijestorac v The State of Western Australia [2010] WASCA 35.
Defence counsel submitted that the correct enquiry in accordance with the first limb of Verdins is not whether there is a direct or an indirect causal connection between the offender's mental functioning and the offending. All that is necessary is that there be some 'real connection' between the mental impairment and the offending behaviour. The connection does not need to satisfy the legal requirements of causation (ts 92 ‑ 93).
It was submitted that where an offender suffers from a mental impairment and there is a real connection between the mental impairment and the offending behaviour, the offender's motive for offending is irrelevant. The relevant question is whether the mental impairment was operative at the time of the offending. If the mental impairment was operative, the question is whether the mental impairment contributed to or was in some way connected with the offending behaviour. It was submitted that, in the present case, based on Dr Darjee's evidence, the appellant's mental impairment was operative at the time of the offending and that the mental impairment contributed to or was in some way connected with the offending (ts 93 ‑ 94).
Defence counsel referred (at ts 95) to this passage from Dr Darjee's evidence‑in‑chief (ts 10):
Just hypothetically speaking, even if it's accepted that [the appellant] had ingested methamphetamine at the time of the child stealing offence for example, what impact if any does that have on your ultimate diagnosis as to the presence of the complex neurodevelopment and personality dysfunction at the time of the commission of that offending? ‑ ‑ ‑ It … doesn't make any different to it at all.
Defence counsel submitted that the appellant's complex developmental and personality dysfunction was the explanation for his offending (ts 94). It was submitted that (ts 95):
[W]hen one comes to consider whether or not there should be any reduced weight to whatever reduction of moral culpability should be accorded to [the appellant] by dint of his complex developmental and personality dysfunction, the state of the evidence … is that your Honour can be satisfied on the balance of probabilities that methamphetamine and the personality disorder do not, acting in combination or individually, explain this offending. Because that's the evidence of Dr Darjee.
It followed, so defence counsel submitted, that Dr Darjee's evidence 'stands as a firm evidentiary foundation upon which your Honour can find that [the appellant's] moral culpability should be reduced' because his mental impairment (ts 95):
(a)impaired his ability to exercise appropriate judgment;
(b)impaired his ability to make calm and rational choices or to think clearly;
(c)disinhibited him;
(d)impaired his ability to appreciate the wrongfulness of his conduct; and
(e)obscured his intent to commit the offence.
The primary judge's findings and observations on the expert evidence, the appellant's use of methylamphetamine and the Bugmy principles
The primary judge recounted aspects of the expert evidence in her sentencing remarks.
Her Honour made these findings and observations:
(a)Her Honour accepted Dr Darjee's conclusion that the appellant was clearly exposed to chronic, severe and complex trauma from very early childhood, meeting the criteria for diagnosis of PTSD, given the appellant's long‑standing problems with emotional deregulation, fearfulness, emotional detachment and avoidance of reminders of his traumatic experiences (ts 21 ‑ 22).
(b)Her Honour also accepted Dr Darjee's conclusion that the appellant's PTSD overlaps with aspects of personality disorder (ts 22).
(c)Dr Darjee's statement, in the context of the appellant's disorders, that the appellant was suspicious, defensive and fearful of others was consistent with aspects of the appellant's personality that came to the attention of police (ts 22). In particular, her Honour noted that during the electronic record of interview with police the appellant spoke about having a number of children and asserted that their lives and the lives and personalities of their mothers were complex. Her Honour found that these 'family members' were fictitious, but, to the appellant, they are 'very real members of [his] family' (ts 22). Her Honour also noted that the appellant had opened Facebook pages for his fantasy children and had communicated with them (ts 22). Her Honour also commented that the appellant had 'a significant interest in Bratz dolls and owned many of them, and this hobby is consistent with [the appellant's] fantasy family life' (ts 22).
(d)Her Honour accepted that the appellant's complex personality disorders, related PTSD and neuropsychological conditions cannot be separated from each other. Consequently, her Honour accepted Dr Darjee's final assessment that the appellant suffers from a complex developmental and personality dysfunction (ts 23).
The existence of a causal connection between a mental impairment and the commission of an offence may reduce the importance of general deterrence, but it may also increase the importance of specific deterrence or the need to protect the public. Evidence of a mental impairment may be relevant to more than one aspect of the sentencing process. In some cases, it may not affect the final outcome because it weighs both positively and negatively in the balance.
The reason why a mental impairment may weigh negatively in the balance is because it may heighten the risk that the offender will offend in the same way again. A mental impairment that is causative of the behaviour (or in some other way mitigatory) would ordinarily reduce the offender's culpability. However, the same mental impairment may increase the offender's risk of reoffending, particularly if that condition is a long‑term or entrenched one that is unlikely to improve or vary over time. Where the risk of reoffending is high and the nature of the possible future offence is very serious, the weight that must be given to the need to ensure community protection may substantially, if not entirely, cancel out any mitigatory benefit that the mental impairment would otherwise have conferred.
The personal circumstances of an offender may also include a history of profound childhood deprivation. This may include exposure to alcohol abuse and domestic violence, a lack of formal education, and a long record of convictions and incarceration for other offences. Social disadvantage leading to poor self-image, the absence of educational and work opportunities and other demoralising factors may have placed heavy stress on an individual and may reinforce their resort to drugs or alcohol. A history of exposure to drug or alcohol use, exposure to regular violence, and a lack of loving care and a sound education may impair an offender's judgement, normalise antisocial conduct and prevent the development of a robust moral code.
The effects of profound childhood deprivation on the sentencing calculus may point in different directions. Those effects may diminish the offender's moral culpability, but may also increase the importance of protecting the community from the offender's future criminal behaviour. Those conflicting purposes of punishment in a sentencing context must be weighed in the balance. In Bugmy v The Queen,[109] the High Court held that the effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending. Such effects must be given 'full weight' in every sentencing decision relating to the offender. That does not, of course, mean that in any individual sentencing exercise those effects are to be viewed in isolation. They may be given full weight and yet be offset by other factors such that the net impact on the ultimate sentence is reduced.
[109] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [42] ‑ [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
Protection of the community is a factor that is often referred to in sentencing, but its role needs to be clearly understood. The primary purpose of sentencing is to punish the offender for the offence they have committed. The sentence imposed should always be proportionate to the seriousness of the offence. Thus, the length of any term of imprisonment cannot be extended beyond that which would be appropriate for an offence of that seriousness in order to provide protection for the community. However, protection of the community may effectively prevent a sentence from being reduced on account of personal mitigating factors from that which would otherwise be appropriate.
The distinction was referred to by the High Court in Veen v The Queen [No 2],[110] where Mason CJ, Brennan, Dawson and Toohey JJ said:[111]
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
…
It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment.
…
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.
[110] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465.
[111] Veen [No 2] (473 - 477).
There might be a question as to why community protection has any role to play in sentencing given that there are other statutory mechanisms for protecting the community, such as involuntary commitment to a mental hospital under the Mental Health Act 2014 (WA) or detention under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). However, the criteria for those forms of detention do not coincide with circumstances where a person is exposed to criminal punishment. Not every offender who has a mental illness or impairment will qualify for commitment to a mental hospital, and not every offender who presents a risk of reoffending will qualify for detention under the HRSO Act. Furthermore, the possibility that an order might be made in respect of an offender under the HRSO Act is not a mitigating factor that can be taken into account by a sentencing judge.[112] Those forms of detention are entirely separate from, and do not serve the same purposes as, sentencing. Community protection has a long‑established place in sentencing and that position has not been supplanted by the availability of other forms of detention.
[112] See Sentencing Act, s 8(2).
Of course, the achievement of community protection will always be necessarily limited by the nature of the offence committed and the available maximum penalty. The community usually cannot be protected indefinitely, as most sentences will be finite. Nor can a sentence exceed that which is appropriate having regard to the objective seriousness of the offence. Those limitations constrain the impact that protection of the community can have on the sentencing calculus, but they do not make it irrelevant. Even if that protection can only be achieved by imposing a sentence that is proportionate to the seriousness of the offence, a proportionate sentence can still provide a measure of protection.
Section 9AA of the Sentencing Act
Section 9AA appears in pt 2 div 1 of the Sentencing Act. It is in these terms:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Buss P has set out, in his reasons, the legal principles applicable to s 9AA of the Sentencing Act. We respectfully agree with what his Honour has written about those principles between [271] ‑ [280] and [285] ‑ [288], subject to the following.
Section 9AA appears in pt 2 div 1 of the Sentencing Act and must be read and applied, insofar as the statutory text allows, in the context of the general sentencing principles contained within it, including the principle of proportionality in s 6(1) which, as we have said at [355], takes into account the well‑recognised purposes of punishment, including the protection of society.
Section 9AA is broadly concerned with the discount to be afforded for an offender's plea of guilty. It provides that:
(a)Under section 9AA(2), a sentencer is empowered to reduce the head sentence, as defined in s 9AA(1), where a person pleads guilty to a charge for an offence. Subsection (2) confines the availability of any discount under s 9AA to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'. Section 9AA(2) exhaustively states the factors or criteria that may be taken into account in determining whether a discount should be given and, if so, its extent. Thus, and only in respect of the discretion to be exercised in s 9AA(2), are considerations such as protection of the public irrelevant.
(b)The amount of any discount is at the discretion of the sentencer but is subject to the requirement in s 9AA(3) that, the earlier in the proceedings the plea is made, the greater the reduction in the sentence may be. Section 9AA(4) places a cap on the amount of the discount, at 25%, where the head sentence for the offence is, or includes, a fixed term of imprisonment. Subsection (4) stipulates that a discount of 25% is available if, and only if, the offender pleaded guilty, or indicated that a guilty plea would be entered, at the first reasonable opportunity.
(c)By s 9AA(5), the fact and the amount of any discount for the plea of guilty must be stated in open court.
(d)By s 9AA(6), nothing in s 9AA prevents the court from reducing the head sentence for an offence because of any mitigating factor other than the plea of guilty.
Section 9AA lays down a staged process to the determination of a sentence where an offender pleads guilty. The one‑step instinctive synthesis approach to sentencing does not apply. This is because of the requirement to determine a head sentence to which the stated discount for a plea of guilty is to be applied, followed by a discount for any other mitigating factors.[113] Although the process in s 9AA is not the same as the instinctive synthesis process, it requires a sentencing judge to exercise judgment and discretion to arrive at the appropriate sentence in the particular case. Moreover, the differing processes all serve the same objective of achieving a sentence commensurate with the seriousness of the offence.
[113] Garlett v Balic [2016] WASC 172 [34]; LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 [63] (Martin CJ).
In Greenland v The State of Western Australia,[114] this court observed that the application of s 9AA requires the exercise of at least three discretions: first, the fixing of the head sentence; secondly, the determination of the discount for the plea of guilty; and thirdly, the determination of any discount for other mitigating factors. It was also observed that the process is dynamic and not mechanical:
The sentencing judge's sense of the appropriateness of the ultimate sentence resulting from the application of particular tentatively determined discounts (for the plea of guilty and for other mitigating factors) to an identified tentatively determined head sentence may lead the judge to revisit one or more of those integers and then re‑undertake the process accordingly.
[114] Greenland v The State of Western Australia [2017] WASCA 83 [157].
Of importance in this case is the manner in which the first and third of the discretions referred to in Greenland are to be exercised. In contrast to the exercise of the second discretion, the exercise of the first and third discretions in s 9AA do not require a sentencer to state the head sentence, nor the amount of any reduction for 'any mitigating factors other than a plea of guilty'. For present purposes, nothing needs to be said about the exercise of the second discretion, given the appellant received the maximum discount of 25% for his plea of guilty. However, as will be seen, the fact that the appellant received such a discount is a relevant factor in determining the outcome of the exercise of the third discretion.
The determination of the head sentence requires a consideration of all of the relevant sentencing factors apart from mitigating factors. How the various factors are weighed will vary according to the facts and circumstances of the particular case. A similar approach is required by the third discretion. Again, what is required is a consideration of the other mitigating factors, according to the facts and circumstances of the particular case.
The head sentence under s 9AA(1) is the hypothetical sentence that would have been imposed upon the offender if, instead of pleading guilty to the offence, he or she was convicted after trial in circumstances where there were no mitigating factors. Thus, a sentencer is required to determine the head sentence in accordance with pt 2 div 1 of the Sentencing Act (but without consideration of any mitigating factors), and any other relevant statutory provision and common law sentencing principles.
Determining the head sentence is informed by the principle of proportionality in s 6(1) and requires consideration of, potentially, many factors, including the matters in s 6(2) (other than s 6(2)(d)), and a consideration of the objective seriousness of the offence; that is, 'an objective assessment of the seriousness of the crime and the matters causally related to it'.[115] It may also include matters personal to an offender, but only to the extent that they are not mitigating. Where a factor has both aggravating and mitigating aspects, the mitigatory aspects are not taken into account in the determination of the head sentence.
[115] Paterson v The Queen [2021] NSWCCA 273 [29] (Beech‑Jones CJ at CL), cited with approval in DS v The Queen [2022] NSWCCA 156; (2022) 109 NSWLR 82 [64].
The third discretion identified in Greenland is to be exercised after the determination of the discount for the plea of guilty. Determining the effect of other mitigating factors is a matter for the sentencing judge. The weight that can ultimately be given to other mitigating factors may be limited. There are various reasons why this is so. A particular factor may not have much mitigating force. In some types of offending, the need to provide general or personal deterrence and protection to vulnerable victims, such as children, are the dominant sentencing considerations, such that the weight to be given to matters personal to an offender is limited.[116] The application of the discount for the plea of guilty may impact on the extent to which another discount can be applied to achieve a different purpose.[117] As we have said above, factors such as mental impairment or a history of profound childhood deprivation, while reducing moral culpability, may not lead to a reduction in the sentence because of the weight that must be given to factors such as the seriousness of the offending, public protection and personal deterrence.[118]
[116] See, for example, in respect of drug dealing or trafficking offences, Diamantopoulos v The State of Western Australia [2024] WASCA 82 [89] and The State of Western Australia v Wilson [2015] WASCA 119 [26]; in respect of sexual offences against adults, The State of Western Australia v Wynne [2024] WASCA 20; and in respect of sexual offences against children, Coutts v The State of Western Australia [2023] WASCA 38 [73] ‑ [74].
[117] See SYL v The State of Western Australia [2021] WASCA 16 [83], citing DGF v The Queen [2021] WASCA 4 [65].
[118] See also Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53]; Veen [No 2] (476 ‑ 477); Nasrallah v The Queen [2021] NSWCCA 207; (2021) 105 NSWLR 451 [8] ‑ [9] (Bell P), [53] (Price J); Peterson v The State of Western Australia [2019] WASCA 207 [60].
In SZ v The Queen,[119] a case which concerned the extent to which a discount can be given for an offender's cooperation with law enforcement authorities after the sentencing judge had already discounted the offender's sentence on account of his plea of guilty, Howie J observed that there is a limit on the extent to which an otherwise appropriate sentence can be discounted for one reason, or a combination of reasons, and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. His Honour emphasised that whatever the subjective circumstances of the offender and whatever discounts are applied, 'the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment'.[120] His Honour added:[121]
After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.
SZ has been cited by this court with evident approval in cases involving the application of s 6(1) and s 9AA. See SYL [82] and [83] and subsequent cases which refer to SYL: NHI v The State of Western Australia[122] and RXA v The State of Western Australia.[123]
[119] SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249.
[120] SZ [5].
[121] SZ [5].
[122] NHI v The State of Western Australia [2021] WASCA 32 [50].
[123] RXA v The State of Western Australia [2022] WASCA 116 [30].
As French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ succinctly put it in Munda v The State of Western Australia:[124]
Mitigating factors must be given appropriate weight, but they must not be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'. (citations omitted)
[124] Munda [53].
Ground 4 - relevant facts and personal circumstances
The relevant facts of the offending, the personal circumstances of the appellant and the evidence regarding the appellant's mental impairments and profound childhood deprivation, have all been detailed by Buss P in his reasons. It is unnecessary for us to repeat the facts, circumstances and evidence, except to the extent it is necessary to explain our reasoning.
The critical issue is the impact that the other mitigating factors, particularly the appellant's mental impairments and history of profound childhood deprivation, had in determining an appropriate sentence. The findings made by the sentencing judge in those respects were challenged by grounds 1, 2 and 3. Since those grounds are without merit, the findings made by the sentencing judge form a necessary part of the framework in which ground 4 must be considered.
The sentencing judge made the following findings regarding the appellant's personal circumstances:[125]
[125] Sentencing ts 7 - 8, 12, 17 - 20.
1.The appellant was exposed to chronic and complex trauma and to profound disadvantage from early childhood.
2.This resulted in neurodevelopmental impairment and compromised the appellant's mental functioning.
3.The lack of care given to the appellant as an infant damaged him physically, psychologically and developmentally.
4.The appellant was diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder as a child and suffered from hearing loss. This led to learning difficulties and difficulties with socialisation.
5.The appellant suffers from post‑traumatic stress disorder (PTSD) as a result of his childhood experiences, and this has resulted in long-standing problems with emotional dysregulation, fearfulness, emotional detachment and avoidance of reminders of his past traumatic experiences.
6.The appellant also has complex developmental and personality dysfunction.
7.The appellant's neurodevelopmental deficiencies, PTSD and very complex personality dysfunction are not of his own making. They affected his mental functioning at the time of the offending and will continue to do so into the future. These conditions reduced 'to a degree' the appellant's moral culpability and the appropriateness of personal and general deterrence.
8.The appellant has been a long-term user of cannabis and methylamphetamine. He turned to drug misuse because of the pain and trauma that he has suffered throughout his life.
9.The appellant was under the influence of methylamphetamine at the time of the abduction and continued to use it over the next week.
10.The appellant's methylamphetamine use, in combination with his personality disorders, caused the appellant to abduct the child and not return her. If he had not been emboldened or disinhibited by the drug then he may not have offended. His drug use had a significant role to play in the offending.
11.The appellant's future risk of reoffending when released from prison is well above average. If he did reoffend, there is a high risk that he would seriously psychologically harm any future victim.
12.Due to the appellant's neurodevelopmental deficiencies, PTSD and personality dysfunction, imprisonment is likely to be harder for him than for other prisoners.
With regard to the appellant's risk of reoffending, the sentencing judge said:[126]
But I must also consider the ways in which your complex developmental and personality dysfunction and your desire to use drugs impacts on your future risk to the community and impose a sentence that balances the need for community protection with your personal circumstances.
Dr Darjee assessed your future risk of reoffending on your release from prison using actuarial risk assessment instruments. He noted your scores placed you in the well above average risk category. He also noted that factors such as poor coping, unfeasible release plans and unrealistic long-term goals were factors that had to be considered when assessing your risk on release.
In Dr Darjee's opinion, you pose a high risk of seriously psychologically harming any future victim in the event that you did reoffend.
Dr Darjee's view of what you would require in the future in order to reduce the risk of reoffending includes one-on-one psychological services that would need to specifically address the issues of reoffending in the context of your severe personality dysfunction and also that you would be required to take medication voluntarily as prescribed.
I note that given your family and cultural history, you're likely to choose to return to regional Western Australia on your release. The level of specialist care and supervision that may be available is likely to be limited for geographical reasons.
[126] Sentencing ts 28 - 29.
Ground 4 - disposition
The maximum penalty for an offence contrary to s 343(1) of the Code is 20 years' imprisonment. That is an indicator of the seriousness of offences of this nature.
The objective seriousness of this particular offence is undoubted. A detailed repetition of the facts and circumstances is unnecessary to establish this point. The facts truly speak for themselves.
On any view, the appellant's abduction of such a young and highly vulnerable child from her parents, at night, and then holding her captive in his house for 18 days was extraordinarily serious. As tragic as the appellant's background is, the sad fact remains that his risk of reoffending required that the sentence imposed upon him have regard to the sentencing objective of public protection.
There are no comparable cases.
The appellant's contention that the sentence is manifestly excessive critically depends upon whether the sentence of 13 years 6 months' imprisonment reflected a proper exercise of the sentencing discretion, having regard to all of the relevant facts and circumstances, including his plea of guilty and the other mitigating factors.
The sentencing judge was presented with a difficult sentencing exercise. The offending was, as mentioned, extraordinarily serious. The appellant's personal circumstances, set out at [387] above, were complex. The appellant's mental impairments and profound childhood deprivation were factors which pulled both ways in the sentencing process. There were several contributors to the offending, including the the appellant's voluntary use of methylamphetamine. The appellant poses a well above average risk of reoffending and, should that risk eventuate, there is a high risk he would inflict serious psychological harm on any future victim.
The sentencing judge was provided with a large volume of evidence, not all of which pointed in the same direction. Her Honour carefully navigated that evidence and made appropriate findings. In essence, she concluded that: the appellant had mental impairments which were a causative factor; he voluntarily used drugs at the time of the offending and this was also a causative factor; he had a history of childhood deprivation; and he was at high risk of committing a similar offence in the future.
Those findings pulled in different directions. The mental impairments and profound childhood deprivation weighed in favour of a reduced sentence. The voluntary use of drugs qualified the mitigatory effect of the mental impairments. The risk of reoffending weighed in favour of a longer sentence that adequately protected the community.
While, in many cases, it is neither possible nor desirable to reverse‑engineer the components of a sentence imposed using the staged process in s 9AA of the Sentencing Act, it was not contested by the parties to this appeal, and, in the circumstances of this case, it cannot be contested, that her Honour must have quantified the various integers, as described at [338] above, that led to the sentence she imposed.
In the present case, a head sentence, having regard to the requirements in s 9AA(1), of 20 years' imprisonment, or something very close to it, was entirely justified having regard to, in particular, the statutory maximum penalty, the objective seriousness of the offence, and the need to provide an appropriate measure of public protection.
There was no dispute that the 25% discount given under s 9AA(4) was appropriate. The appellant entered the plea of guilty at the first reasonable opportunity and, thus, spared the child and her immediate family the trauma of testifying at trial. The plea of guilty also spared the community the expense of a trial, which would likely have been lengthy and complex.
The appellant's submissions on ground 4 were focused on the discount of approximately 1 year and 6 months for other mitigating factors.
Her Honour identified all of the relevant mitigating factors other than the plea of guilty. They are summarised at [387] above. Perhaps in other cases, when considered in combination, they may have attracted a higher discount. However, in the present case, their combined weight was limited. This is for a number of reasons. The assessment of the weight to be given to other mitigating factors required consideration of the fact that the sentencing judge had already given a discount of 25% of the head sentence for the plea of guilty. Further, the weight that could be given to other mitigating factors, such as the appellant's mental impairments and his profound childhood deprivation, was limited because to have given a greater discount for other mitigating factors would have inappropriately undermined the fundamental requirement in s 6(1) of imposing a sentence that was commensurate with the seriousness of the offence.
The ultimate sentence imposed had to be proportionate to the offending, having regard to all relevant factors, including protection of the public. The process mandated by s 9AA requires that different factors are taken into account at different stages of the process, but that does not imply that the effect of those factors is confined or that the end result must be accepted by the sentencer without regard to whether it is considered to be a proper reflection of the offending conduct. As was acknowledged in Greenland, it may be necessary to revisit one or more of the discretions in the s 9AA process if it produces an outcome that is not commensurate with the seriousness of the offence. This may necessitate a reduction in the discount to be afforded to other mitigating factors, such as mental impairment and childhood deprivation, to ensure that the final sentence properly reflects the need for public protection. This does not involve a 'double counting' of public protection as a factor, rather, it ensures that that factor is properly and adequately reflected in the sentence imposed.
We have had regard to the principles applicable to this ground, as set out at [344] ‑ [350] above.
It is not necessary or appropriate for us to attempt to reproduce the reasoning that led the sentencing judge to allow a discount of 1 year and 6 months for the other mitigating factors. It is sufficient to say that it is not indicative of error. It was open to her Honour to conclude that the weight to be accorded to mental impairment and childhood deprivation had to be limited to ensure that the final sentence was proportionate. It is against that background that the question of whether the sentence is manifestly excessive must be judged.
The sentence that was imposed upon the appellant was severe, but it was an appropriate reflection of the extraordinarily serious nature of the offence the appellant committed. It reflected a proper exercise of the sentencing discretion under pt 2 div 1, including s 9AA, of the Sentencing Act having regard to all of the relevant facts and circumstances including his plea of guilty and the other mitigating factors. Implied error has not been demonstrated. While leave to appeal on ground 4 should be granted, the ground of appeal has not been made out.
SKL v The State of Western Australia
In his reasons, at [306] ‑ [310], Buss P analyses certain statements we made in our joint judgment in SKL v The State of Western Australia,[127] particularly at [24] and [25]. SKL was decided after the present appeal. Its outcome turned on its own facts and not on any issue as to the construction and operation of s 9AA. Neither Rossi nor Greenland were cited, and there is no obvious reason why they would be referred to in the judgment. Respectfully, we do not agree with Buss P's analysis of the case.
[127] SKL v The State of Western Australia [2024] WASCA 32.
Conclusion
None of the grounds of appeal have been established. Accordingly, the appeal must be dismissed. The orders we would make are:
1.Leave to appeal on grounds 1, 2 and 3 is refused.
2.Leave to appeal on ground 4 is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
30 SEPTEMBER 2024
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