Lepoidevin v State of Western Australia [No 2] - [2021] WASCA 19

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LEPOIDEVIN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 19
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   6 NOVEMBER 2020
DELIVERED          :   9 FEBRUARY 2021
FILE NO/S:   CACR 92 of 2020
BETWEEN:   LUKE DAVID LEPOIDEVIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MACLEAN DCJ
File Number            :   IND 1532 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on guilty pleas of one count of making a threat with intent to compel a person to do an act that they were lawfully entitled to abstain from doing and two counts of criminal damage - Total effective sentence of 2 years' immediate imprisonment imposed - Whether the appellant's psychiatric illness caused or contributed to the offending or reduced his moral culpability - Whether the appellant's psychiatric illness reduced the significance of general deterrence - Whether miscarriage of justice occasioned by a failure to allow the appellant a reasonable opportunity to adduce further evidence in respect of such matters - Turns on own facts

Legislation:

Criminal Code (WA), s 338A(d), s 338A(f), s 444(1)(b)
Sentencing Act 1995 (WA), s 9AA

Result:

Application dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	L M Fox SC

Solicitors:

Appellant	:	Mark Andrews Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Baker v The State of Western Australia [2020] WASCA 117
Gok v The Queen [2010] WASCA 185
Lepoidevin v The State of Western Australia [2020] WASCA 142
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
R v Tsiaras [1996] 1 VR 398
RST v The State of Western Australia [2016] WASCA 59
Suleiman v The State of Western Australia [2017] WASCA 26
Vucemillo v The State of Western Australia [2017] WASCA 37
Wheeler v The Queen [No 2] [2010] WASCA 105

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment in the District Court with three counts. Count 1 alleged that, on 28 January 2019 at a Perth suburb, the appellant made a threat with intent to compel Alan Joel Falkson to do an act he was lawfully entitled to abstain from doing, contrary to s 338A(d) and (f) of the Criminal Code (WA) (the Code). Count 2 alleged that on the same date and at the same place, the appellant wilfully and unlawfully damaged a garage roller door, the property of Mr Falkson, contrary to s 444(1)(b) of the Code. Count 3 alleged that on the same date and at the same place, the appellant wilfully and unlawfully damaged a window, the property of Mr Falkson, contrary to s 444(1)(b) of the Code.
The appellant was convicted, on his pleas of guilty, of the charged offences.
The maximum penalty for count 1 is 7 years' imprisonment and, for each of counts 2 and 3, 10 years' imprisonment.
On 12 June 2020, MacLean DCJ sentenced the appellant to 18 months' immediate imprisonment for count 1, reduced from 2 years in the application of the totality principle. For each of counts 2 and 3, his Honour sentenced the appellant to 6 months' immediate imprisonment. His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentence for count 3 be served concurrently with the sentence for count 1. The total effective sentence was therefore 2 years' immediate imprisonment. The total effective sentence was backdated to 11 June 2020. A parole eligibility order was made.[1]
[1] ts 68 - 69.
The appellant advances three grounds of appeal. Ground 1 alleges that the sentencing judge erred in fact and law by finding that the appellant's psychiatric illness, which was undiagnosed and untreated at the time of the offending, did not cause or contribute to the offending in any meaningful way or reduce his moral culpability. Ground 2 alleges that his Honour erred in finding that the appellant's psychiatric illness did not in any way reduce the significance of general deterrence. Ground 3 alleges that there was a miscarriage of justice when his Honour failed to allow the appellant (1) a reasonable opportunity to adduce further evidence as to how the appellant's psychiatric illness contributed to the offending, and (2) to provide the court with a copy of the curriculum vitae of Mr Christian Hetebry. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[2] There is no allegation in the grounds of appeal that, in the absence of the alleged express errors or miscarriage of justice, any individual sentence was manifestly excessive or that the total effective sentence infringed the totality principle.
[2] Order of Mazza JA dated 6 October 2020: WAB 4.
On 28 August 2020, Buss P dismissed the appellant's application for bail pending appeal.[3]
[3] Lepoidevin v The State of Western Australia [2020] WASCA 142.
In his reasons for decision, his Honour comprehensively set out much of the background necessary to decide this appeal. These reasons reproduce much of what his Honour wrote.

The facts

At about 5.45 pm on 28 January 2019, the appellant was at home with his wife, Candice Lepoidevin, their twin daughters (who were then aged 7) and Mrs Lepoidevin's son (who was then aged 14). The appellant and Mrs Lepoidevin were separated but at the time remained living in the same house. The appellant was endeavouring to watch television and became upset that the children were being disruptive.
At about 6.30 pm on 28 January 2019, the appellant had been shouting at the children and acting in a manner that caused Mrs Lepoidevin to become concerned for herself and the children's welfare. Mrs Lepoidevin decided to take the children to her parents' home in a Perth suburb for their safety. They arrived at about 6.45 pm.
At about 7.00 pm, the appellant realised that Mrs Lepoidevin and the children had departed. He telephoned his father‑in‑law, Mr Falkson, to confirm that the children were at Mr Falkson's home. During the telephone call, Mr Falkson told the appellant not to come to his home and to leave the children where they were for the night.
Before he went to Mr Falkson's home, the appellant sent a text message to Mrs Lepoidevin in which he asserted:
You include my sick mum in this. I promise to take everything you love in this world. You wanted this. It's over. Don't make me come for them. You'll never get them back after your court history and the way you have manipulated Centrelink. They are putting away your type for 6 months as an example for others. Test me, please. I'll destroy everything that you know to be existence. Don't fuck with those who have nothing to lose for you will lose life itself.
The appellant was enraged and drove his motor vehicle to Mr Falkson's home. The appellant drove into the driveway and began to sound the vehicle's horn. When there was no response, the appellant walked to a wall and saw that Mr Falkson was inside the residence.
The appellant began to threaten and make gestures at Mr Falkson. The appellant wanted Mr Falkson to come outside. Mr Falkson refused. The appellant returned to his vehicle and drove the vehicle deliberately into the roller door of the garage. This caused the roller door to buckle.
The appellant was aware that there were several people inside the residence including Mrs Lepoidevin and the children. However, the appellant refused to accept that he was unwelcome. The appellant also refused to accept that Mrs Lepoidevin wanted to be away from him and wanted to keep the children with her because of his erratic behaviour earlier that evening.
The appellant went to a bedroom window at the front of the residence and used a brick paver or a similar object to smash the window. The appellant reached through the broken window and pulled the blinds through the broken window. While the appellant was carrying out these actions he shouted threats at Mr Falkson and called out to Mrs Lepoidevin and the children. When the appellant smashed the window, Mr Falkson ran into the bedroom. The appellant shouted at Mr Falkson that he was going to kill him. The appellant continued with his efforts to break into the residence and continued to threaten to kill Mr Falkson.
As the appellant appeared to be about to carry out his threats, Mr Falkson sprayed the appellant with pepper spray. The appellant returned to his vehicle. Police arrived shortly afterwards and arrested the appellant.
The appellant had consumed, over a period of about 6 1/2 hours prior to 5.30 pm, a quantity of vodka mixers which amounted to the consumption of about a third of a bottle of vodka. It was accepted by defence counsel that the appellant was, to some extent, affected by alcohol at the time of the offences.[4] Further, much of the incident at Mr Falkson's home was captured on video recorded by CCTV. It is clear from the sentencing remarks that his Honour viewed the evidence.[5]
[4] ts 36.
[5] ts 57.

The appellant's personal circumstances

The appellant was 34 years old at the time of the offending and 35 years old at sentencing.[6]
[6] The appellant's date of birth is stated on the indictment as 23 January 1985: WAB 47.
According to the pre‑sentence report, the appellant had 'an unremarkable upbringing in a "happy household"'. He has maintained a positive relationship with his parents and siblings. Since leaving high school, the appellant has been employed. At the time he was sentenced, the appellant was employed on a full‑time basis as an aviation parts specialist.
The appellant and his wife have two children. Up until the date of the offence, the appellant's household comprised his wife, their twin daughters and his wife's son from a previous relationship.
The appellant has a prior criminal history comprising mostly traffic offences, but he has also been convicted of assaulting a public officer, disorderly behaviour in a public place and obstructing a public officer, all of which were committed on 17 November 2006 and which resulted in fines totalling $1,500. On 5 February 2019, eight days after the appellant committed the offences the subject of this appeal, the appellant breached a violence restraining order and protective bail conditions. The conduct constituting this offence involved sending a text message to his wife, seeking to provide an explanation for his offending on 28 January 2019.[7]
[7] Appellant's sentencing submissions, WAB 112.
The sentencing judge was provided with a letter from the appellant's general practitioner, Dr Johan Brink, dated 10 June 2020. Dr Brink stated that the appellant suffers from 'significant cirrhosis of the liver as a result of long[‑]term heavy alcohol use'. In Dr Brink's opinion, this condition made the service of an immediate term of imprisonment more onerous for the appellant than for a person in good health.
The sentencing judge was also provided with a report dated 14 December 2019 from Mr Christian Hetebry, a clinical psychologist, and a report dated 12 February 2020 from Dr Mathew Samuel, a consultant psychiatrist. Mr Hetebry's report is addressed 'to whom it may concern' and Dr Samuel's report is addressed to the appellant's solicitor.
Mr Hetebry's report stated that:[8]
(a)The appellant first attended upon Mr Hetebry on 2 February 2019, after being referred by the appellant's general practitioner. The referral was triggered by the incident on 28 January 2019.
(b)In addition to the session on 2 February 2019, the appellant attended sessions with Mr Hetebry on 9 February 2019, 16 March 2019 and 22 June 2019.
(c)During his assessment of the appellant, Mr Hetebry 'developed the impression that [the appellant] was suffering from a Post‑Traumatic Stress Disorder, dating back to an incident when [the appellant] was [an] ambulance service volunteer at approximately age 19. In this incident [the appellant] recalled responding to an accident where a 7‑year‑old female child passed away'.
(d)Mr Hetebry also noted several aspects of the appellant's 'account' that led him to 'consider PTSD as a diagnosis', being sustained difficulty in sleeping, nightmares regarding the incident referred to above and the appellant's described 'hypervigilance' regarding his daughters. Mr Hetebry also noted the appellant's statement that he had been drinking heavily, approximately five days per week, to manage his anxiety and tension.
(e)Mr Hetebry expressed the view that the feature of the appellant's history that seemed 'most likely to be linked to his behaviour leading up to his arrest' was the appellant's preoccupation and hypervigilance regarding his children's safety. The appellant had described to Mr Hetebry 'a build‑up of anxiety and tension leading up to the incident'. Mr Hetebry was of the view that it seemed 'conceivable that this led to some poor judgment'. Mr Hetebry added that it was 'conceivable' that the appellant's hypervigilance regarding his children's safety combined with reported fatigue from poor sleep 'led to such a state of hyper‑arousal that his sense of reality was skewed'.
(f)Mr Hetebry's 'leading hypothesis' was that the appellant's offending behaviour 'was an extreme manifestation of a long‑standing and undiagnosed PTSD'.
[8] Report of Christian Hetebry, 14 December 2019.
In relation to Mr Hetebry's report, no information was provided to the sentencing judge as to the author's experience and qualifications. The reasoning process behind Mr Hetebry's statement that the appellant's offending behaviour was most likely linked to the appellant's described hypervigilance towards his children was unexplained. So too was Mr Hetebry's 'hypothesis' that the appellant's offending behaviour was a manifestation of PTSD. It is not apparent from the report that Mr Hetebry was provided with the statement of material facts or the prosecution brief.
Dr Samuel's report stated that:[9]
[9] Report of Dr Mathew Samuel, 12 February 2020.
(a)As to the facts of the appellant's offending, Dr Samuel had been provided with a 'statement of facts' (presumably the statement of material facts supplied by the prosecutor). The appellant told him that his children had been taken to his father‑in‑law's house without his consent.
(b)The appellant gave a history that between the ages of 18 years and 21 years (2003 ‑ 2006) he worked as a voluntary paramedic for St John's Ambulance. In this work, he attended multiple motor vehicle accidents including one where a young child was traumatically killed.
(c)The appellant reported a number of 'symptoms' including:
(i)poor sleep;
(ii)hyper anxious and protective around children;
(iii)drinking alcohol with no alcohol‑free days;
(iv)addicted to sleeping tablets;
(v)nightmares;
(vi)unable to work - on light duties;
(vii)tearful episodes;
(viii)fear of being incarcerated;
(ix)low mood; and
(x)no suicidal thoughts.
(d)Under the heading 'Mental State examination', Dr Samuel observed no psychotic symptoms and noted that the appellant denied any suicidal or homicidal thoughts.
(e)Under the heading 'Diagnosis', Dr Samuel wrote 'PTSD and Alcohol Dependence'.
In answer to a series of questions posed by the appellant's solicitors, Dr Samuel said that the appellant's PTSD and substance use disorder (mainly alcohol and some Zopiclone) existed at the time of the offending and that these conditions 'would have contributed to the offending'.
Dr Samuel stated that the appellant's level of risk of committing similar offences 'will be minimal if he continues to be adherent to treatment and remains abstinent from using alcohol or prescription drugs'.
We note that no evidence of Dr Samuel's experience was provided to the sentencing judge. More importantly, the reasoning behind Dr Samuel's opinions that the appellant's PTSD and substance use disorder contributed to the offending was not articulated. Nor was there any apparent consideration of the cause of the PTSD or the relationship, if any, between the appellant's PTSD and his alcoholism. As to the circumstances leading up to the offending, Dr Samuel referred only to the history given to him by the appellant.
The sentencing judge was also provided with a letter dated 4 June 2020 from Michael Chidgzey, a psychologist, who stated that the appellant had attended for psychological treatment on 18 May 2020 and 4 June 2020 and that the appellant had told him that he intended to continue with treatment every two to three weeks for the duration of his Mental Health Care Plan.

The victim impact statement

The sentencing judge received a victim impact statement by Mr Falkson in which he stated that his grandchildren, who were present on the night of the offences, require ongoing counselling and that 'we are scarred for life'.[10]
[10] In the course of defence counsel's oral submissions, his Honour said, in effect, that he would use the victim impact statement as representing the victims' distress, shock and outrage, but not to support any aggravating factors of the offence: ts 36.

The sentencing hearing

During the course of the plea in mitigation, his Honour informed defence counsel that he had 'reservations' about the expert opinions expressed by Mr Hetebry and Dr Samuel.[11]
[11] ts 31 - 36.
With respect to Mr Hetebry, his Honour observed that:[12]
(a)Mr Hetebry's expressions of opinion were 'tentative';
(b)Mr Hetebry did not state his qualifications or his experience;
(c)Mr Hetebry did not expose the reasoning process towards the opinions that he expressed; and
(d)Mr Hetebry did not deal with the issue of the extent to which the appellant's offending was contributed to by poor judgment, the appellant's consumption of alcohol or his PTSD, or any combination of these factors.
[12] ts 31 - 33.
Defence counsel sought to deal with his Honour's reservations in respect of Mr Hetebry's opinions as to the cause of the appellant's offending by accepting that Mr Hetebry's opinions were 'qualified views' and that Mr Hetebry had expressed his opinions in this way in light of his referral to Dr Samuel, a psychiatrist. As defence counsel put it, Dr Samuel had the relevant expertise.[13]
[13] ts 33.
In relation to the report of Dr Samuel, his Honour observed that Dr Samuel had not said how, or to what degree, the appellant's psychiatric condition (his PTSD and alcohol use disorder) had contributed to the offending on 28 January 2019, nor did he provide a basis upon which he had reached his opinion that the appellant's psychiatric condition contributed to his offending.[14]
[14] ts 34.
Defence counsel accepted that the appellant's alcohol use disorder did not mitigate the offending.[15] Defence counsel said that 'the highest' he could put it was that the appellant's PTSD 'play[ed] some contributory role'.[16]
[15] ts 33 - 34.
[16] ts 35, 37.
In discourse with defence counsel, his Honour said, in substance, that the onus was on the appellant to establish that the PTSD was causative of his offending and that, based on the evidence before him, he could not make such a finding.[17]
[17] ts 37.
Defence counsel did not seek an adjournment to obtain further evidence on the question of the causative link between the appellant's PTSD and his offending.
With regard to general deterrence, the sentencing judge remarked to defence counsel that the case did not appear to be one where the appellant was not an appropriate medium for general deterrence and that general deterrence should be given less weight. Defence counsel conceded that some weight should be accorded to general deterrence, but that the appellant's PTSD, in conjunction with his poor physical health, treatment needs and ongoing risk of haemorrhage, made him a 'less appropriate vehicle for general deterrence'.[18]
[18] ts 45 - 46.

The prosecutor submitted that, based on the expert evidence before the sentencing judge:[19]
(a)the degree to which the appellant's PTSD was causative of the offending was 'not clear';
(b)at their highest, the reports show that the appellant's undiagnosed PTSD may have played some role in the offending; and
(c)the appellant remained an appropriate vehicle for general deterrence.
[19] ts 49.

The sentencing remarks

His Honour found that the offending conduct 'was calculated, deliberate and sustained'.[20] His Honour went on to describe the offending as 'a serious example of domestic violence'.[21] His Honour said that he was 'in no doubt' that the appellant's actions 'terrified all those who were witnesses to it'.[22] His Honour elaborated on this point and found that those who were subject to the threats, principally Mr Falkson, believed that the appellant intended to carry out his threats, including the threat to kill Mr Falkson. The sentencing judge found that the appellant did not, at any point, give any indication that he would desist from his conduct, which ceased only because Mr Falkson pepper‑sprayed the appellant. His Honour said that the appellant's threats were not 'hot air'.[23]
[20] ts 59, 62.
[21] ts 59.
[22] ts 59.
[23] ts 59 - 60.
His Honour found that the appellant's threats were aggravated by the text messages that he had sent to his wife earlier in the evening, which included such threats as, 'I promise to take everything you love in this world …', 'you'll never get them back after your court history and the way you have manipulated Centrelink', 'they are putting away your type for six months as an example for others' and 'I'll destroy everything that you know to be existence. Don't fuck with those who have nothing to lose for you will lose life itself'.[24]
[24] ts 60.
His Honour found that, at the time of the offences, the appellant had PTSD, but his Honour said that he did not consider that this condition was either causative or responsible for the appellant's offending conduct.[25] His Honour found that the appellant's PTSD was a mitigating factor, but was unable (on the evidence before him) to quantify the impact the condition had upon him. His Honour noted the appellant's 'gross consumption of alcohol' and observed that such consumption may itself be a 'byproduct' of the PTSD.[26]
[25] ts 61.
[26] ts 62.
Later in his sentencing remarks, his Honour reiterated that the appellant's PTSD did not explain the offending, nor did it 'meaningfully' reduce the appellant's moral responsibility for it.
His Honour did not accept the proposition that the appellant's PTSD diagnosis displaced or, in any meaningful way, diminished the importance of general deterrence or personal deterrence.[27]
[27] ts 66.
His Honour recognised the mitigating effect of the appellant's pleas of guilty and, pursuant to s 9AA of the Sentencing Act 1995 (WA), gave a discount of 20%.[28] Other mitigating factors that his Honour recognised included:
(a)The appellant's PTSD and cirrhosis of the liver, being factors that his Honour said could be taken into account 'in the general mix of factors for sentencing purposes'.[29]
(b)The appellant had 'some degree of remorse' for his offending. However, his Honour was not satisfied that the appellant's remorse was 'entire or complete'.[30]
(c)The favourable character references that were provided.
[28] ts 62.
[29] ts 66.
[30] ts 62 - 65.
His Honour did not accept the submission, made on behalf of the appellant, that the appellant posed a low risk of reoffending.[31]
[31] ts 63 - 64.
His Honour said that, in his view, count 1 was the most serious of the offences. For this offence his Honour imposed a sentence of 18 months' imprisonment, which he reduced from 2 years' imprisonment for totality reasons. After imposing individual sentences of 6 months' imprisonment for each of counts 2 and 3, his Honour said that some accumulation of the sentences was required 'given the different offending and given the seriousness of the offending'.[32] His Honour ordered that the sentence on count 2 be served cumulatively on count 1, and that the sentence on count 3 be served concurrently. Thus, he imposed a total effective sentence of 2 years' imprisonment.[33]
[32] ts 68.
[33] ts 68.
His Honour then considered whether to suspend the terms of imprisonment. His Honour said that, having regard to the seriousness of the offending, its sustained nature, the nature of the threats, the terror that the appellant caused the victim and the need for general and specific deterrence, it was 'not appropriate to suspend the term of imprisonment' he had imposed.[34]
[34] ts 69.
Relevantly to ground 1, his Honour expressed his reasons for declining to accept that the appellant's PTSD was causative of the appellant's offending, as follows:[35]
And the reasons for not being satisfied that it works that way is my reservations, as expressed previously, with regard to the diagnosis by [Mr Hetebry] which was put forward on a tentative basis without condescending [sic] into either his reasoning process, his experience, [his] qualifications or how it operated in your particular case. And likewise observations stand with regard to the expression of opinion at paragraph 3 of Dr Mathew Samuel's report.
[35] ts 66.
His Honour went on:[36]
And likewise there is some voluntary conduct on your part and that voluntary conduct [might have] been informed by post‑traumatic stress disorder[,] but that voluntary conduct is the persistent use of alcohol.
And I hesitate to say abuse, but there is a diagnosis of alcohol dependence in Mr [sic] Samuel's report, that I can't meaningfully or legitimately or reasonably ignore. And it seems to me, in many respects, you are the author of your own illness by way of your continued excessive use of alcohol.
[36] ts 66.
We now turn to the grounds of appeal.

Grounds 1 and 2 - submissions

The particulars in support of ground 1 assert two things. First, that the psychiatric and psychological evidence to the effect that the appellant's PTSD was a causative factor in the offending was 'unchallenged'. Second, that the sentencing judge rejected the psychiatric and psychological evidence that the PTSD was a causative factor 'without adequate foundation'.
In his oral submissions at the hearing of the appeal, counsel for the appellant accepted that there were shortcomings in the reports, but submitted that, notwithstanding those shortcomings, his Honour should have found that the appellant's PTSD was causative of the offending 'to a degree',[37] having regard to a combination of the following factors:[38]
(a)The finding that the appellant had PTSD.
(b)Based on Mr Hetebry's report, PTSD can trigger the kinds of behaviours exhibited by the appellant in his offending.
(c)His Honour's finding that the appellant's PTSD 'played some role' in the appellant's thinking process.
[37] Appeal ts 23.
[38] Appeal ts 22 - 23.
As to ground 2, counsel for the appellant accepted that ground 2 depended on the success of ground 1.

Ground 1 - disposition

As noted in Vucemillo v The State of Western Australia,[39] this court has, on a number of occasions, referred with approval to R v Tsiaras,[40] where the Victorian Court of Appeal said that there were at least five ways in which mental impairment may be relevant:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[39] Vucemillo v The State of Western Australia [2017] WASCA 37 [36].
[40] R v Tsiaras [1996] 1 VR 398, 400.
Thus, an offender's mental impairment may be mitigating even if a causal connection between the impairment and the offending is not established. Where there exists a causal connection between the mental impairment and the offending, the extent to which the moral culpability of the offender will be lessened will depend upon the extent of the contribution of the mental impairment to the offending. Further, while a person who has a mental impairment may not be an appropriate vehicle for general deterrence, the extent to which general deterrence will be affected depends upon the extent to which the offender is afflicted by the mental impairment.[41]
[41] Vucemillo [38] - [39].
In Wheeler v The Queen [No 2],[42] McLure P (with whom Newnes JA agreed) observed:
The effect of mental impairment on culpability depends upon the nature, effect and severity of the condition and its symptoms: Verdins [R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]]. Of particular significance is the magnitude of the effect of the condition on the ability to appreciate the wrongfulness of the act or to control his or her actions or emotions or to make reasonable (or reasoned) judgments. The magnitude of the effect of a mental impairment is important because, as noted by Owen JA, it is the nature of the human condition that even in the absence of mental impairment, a person may have heightened anxiety or emotions which impair judgment or control.
A person seeking to rely on mental impairment as reducing his or her moral culpability is required to prove on the balance of probabilities that his or her condition impaired his mental functioning to such an extent as to reduce the blameworthiness or culpability of his conduct.
[42] Wheeler v The Queen [No 2] [2010] WASCA 105 [9] - [10].
As it was the appellant who sought to establish a causal connection between his PTSD and the offending, the onus was upon him to establish the causal connection on the balance of probabilities.[43]
[43] Baker v The State of Western Australia [2020] WASCA 117 [41] ‑ [42].
It is clear from the sentencing remarks that his Honour accepted that at the time of the offending, the appellant had PTSD and it had not yet been diagnosed. It is also clear that his Honour regarded the appellant's PTSD as mitigating in the sense that it was an aspect of his health and general background. However, his Honour found, in substance, that the expert opinion evidence provided to him by the appellant was insufficient for him to make a finding that there was a causative link between the PTSD and the offending. Further, his Honour found that the appellant's PTSD did not diminish the importance of general and personal deterrence.
The general principles relevant to the admissibility of expert evidence are well established and do not require detailed repetition. Heydon JA's statement of the relevant principles in Makita (Australia) Pty Ltd v Sprowles[44] is frequently cited for this purpose. It is unnecessary to repeat all that his Honour wrote. The principles were also discussed by Buss JA (as his Honour then was) and by Corboy J (with whom Mazza JA agreed) in RST v The State of Western Australia.[45]
[44] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85].
[45] RST v The State of Western Australia [2016] WASCA 59 [24] ‑ [29], [56].
For present purposes, it is sufficient to note that:
(1)A person who is to give expert or opinion evidence must have acquired, by study or experience, sufficient knowledge of the matters the subject of his or her evidence to render the evidence of value to the court in resolving the issues before it.
(2)Evidence of an expert's opinion must be confined to matters which are the subject of his or her special knowledge or experience.
(3)The facts on which the opinion is based must be proved.
(4)The process by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made as to its reliability. An opinion can carry no weight if the process of reasoning is not fully exposed.
With respect to the opinion of Mr Hetebry, his Honour stated in his sentencing remarks that he was not prepared to find that the appellant's PTSD was causative of the offending because:
(a)The diagnosis of PTSD made by Mr Hetebry was 'put forward on a tentative basis'.
(b)The reasoning process by which Mr Hetebry concluded that the appellant's PTSD was causative was not disclosed.
(c)Mr Hetebry's qualifications and experience to give the opinion were not disclosed.
(d)If the appellant's PTSD was causative of the offending, the extent to which the condition affected the appellant's conduct was unexplained.
His Honour, in substance, made the same observations with respect to Dr Samuel's opinion, that the appellant's PTSD was causative of the offending.
In our opinion, for the reasons expressed below, his Honour was correct to find that the evidence before him was insufficient for him to be satisfied that the appellant's PTSD was causative of the appellant's offending.
With respect to the opinion reached by Mr Hetebry, while it may be accepted that he was a duly qualified clinical psychologist, there was nothing before his Honour to show that Mr Hetebry was qualified or experienced to give an opinion to the effect that the appellant's PTSD was causative of the offending. Further, the factual basis upon which any opinion could be given was not clearly stated. Mr Hetebry appears to have based his opinion upon the appellant's account of events. The details of the account given by the appellant to Mr Hetebry are unclear, and the details that are given do not accord with the facts as found by the sentencing judge.
Next, as his Honour noted, Mr Hetebry does not unequivocally make a finding that the appellant in fact suffers from PTSD. At its highest, based on the appellant's account of events, PTSD was the 'leading hypothesis' for the appellant's offending behaviour.
Finally, the reasoning process behind Mr Hetebry's 'leading hypothesis' is not explained.
With respect to Dr Samuel's report, while we accept that Dr Samuel has the relevant expertise and experience to diagnose that, at the time of the offending, the appellant was suffering from PTSD and substance use disorder, he does not set out:
(a)the relationship, if any, between the appellant's PTSD and the substance use disorder;
(b)whether the substance use disorder is a result of the PTSD;
(c)the reasoning process behind the conclusion that the appellant's psychiatric condition (that is, both the PTSD and substance use disorder) have contributed to the offending; and
(d)the extent to which the appellant's psychiatric condition contributed to the offending behaviour.
We do not accept the appellant's assertion that the evidence said to support the contention that the appellant's PTSD was a causative factor was unchallenged. The prosecution made no unequivocal statement to this effect. Further, it is clear from the sentencing proceedings that his Honour was not prepared to accept the submission that the appellant's PTSD was a causative factor in his offending. We will say more about this while dealing with ground 3.
Nor do we accept the appellant's assertion that the sentencing judge rejected the psychiatric and psychological evidence without adequate foundation. For the reasons given in [67] to [70] above, his Honour's rejection of the proposition that the appellant's PTSD was causative of the offending was made on a proper basis in accordance with authority.
Ground 1 has no reasonable prospect of succeeding.

Ground 2 - disposition

As we observed earlier in these reasons, counsel for the appellant in his oral submissions accepted that success on ground 2 is dependent on whether ground 1 is successful. As ground 1 has not been made out, ground 2 fails.
However, even if ground 1 had succeeded, the expert evidence was insufficient to permit the sentencing judge to find that the appellant's mental impairment made him an inappropriate vehicle for general deterrence, let alone to determine the extent to which general deterrence should be moderated. As Mazza JA explained in Gok v The Queen,[46] it is not the law that once it is demonstrated that an offender has a mental impairment, general deterrence becomes irrelevant. The degree to which general deterrence is moderated very much depends upon the facts of the case. Here, as there was no evidence about the nature, effect and severity of the appellant's PTSD, and how it may have operated on the appellant's ability to appreciate the gravity of his actions, there was no proper basis to find that general deterrence was moderated.
[46] Gok v The Queen [2010] WASCA 185 [59] ‑ [60].

Ground 3 - submissions

It will be recalled that, during the sentencing proceedings, his Honour informed defence counsel, in effect, that on the evidence that had been put before him by the appellant, he was not prepared to accept the contention that the appellant's undiagnosed PTSD was causative of the appellant's offending. It will also be recalled that his Honour told defence counsel that he had reservations about the expert opinions expressed by Mr Hetebry and Dr Samuel. The nature of those reservations was explained to defence counsel by his Honour (see [34] and [36] above). As we have observed, defence counsel did not request an adjournment of the sentencing proceedings to deal with his Honour's concerns. In respect of ground 3, the appellant submits to this court that his Honour was obliged, as a matter of procedural fairness, to adjourn the proceedings to allow the appellant a reasonable opportunity to adduce further evidence as to how the appellant's psychiatric illness contributed to the offending, and to provide the court with a copy of Mr Hetebry's curriculum vitae. Counsel for the appellant submitted that this case is analogous to that of Suleiman v The State of Western Australia,[47] where a contention that the sentencing judge had failed to accord the offender procedural fairness was upheld.
[47] Suleiman v The State of Western Australia [2017] WASCA 26.

Ground 3 - disposition

The present case is not analogous to Suleiman.
The appellant in Suleiman had been convicted on his pleas of guilty on three counts in an indictment arising out of an incident which occurred at the home of the complainant. The sentencing judge found that the appellant poured a considerable amount of petrol into a vehicle and then ignited the petrol. A fire took hold and destroyed the vehicle and caused damage to a carport and the exterior of the complainant's home. The offender then entered the complainant's home without her consent and damaged various items of property.
The offender in Suleiman suffered from a mental illness. Based on the reports of a consultant forensic psychiatrist, the State conceded that, at the time of the offending, the appellant suffered an acute relapse of his mental illness and that there was a causal connection between the relapse and the commission of the offences. In the sentencing remarks, the sentencing judge rejected this concession, stating that he was not satisfied, on the balance of probabilities, that at the time of the offending the appellant was suffering from an acute relapse of his mental illness. In doing so, his Honour observed that the psychiatrist had not viewed the offender's video‑recorded interview with police. His Honour failed to raise with defence counsel, before making his sentencing remarks and imposing the sentence upon the offender, that he was proposing to reject the State's concession in relation to the forensic psychiatrist's reports and the basis upon which he proposed to reject that concession.

On appeal, this court held that his Honour's failures denied the offender procedural fairness. In essence, this court held that his Honour's failure caused the appellant practical injustice because it deprived defence counsel of the opportunity to apply for an adjournment for the purpose of clarifying with the forensic psychiatrist whether she had viewed the offender's electronically‑recorded interview and to give evidence as to whether the appellant's demeanour and interaction with the police officers during the interview affected the opinions she had expressed.[48]
[48] Suleiman [49].
The present case is factually very different to Suleiman. Unlike the present case, in Suleiman, the State had conceded that the appellant had suffered an acute relapse of his mental illness and that there was a causal connection between the relapse and the commission of the offences. Further, unlike the present case, the sentencing judge in Suleiman did not raise with defence counsel in advance that he was contemplating a finding that the offender's mental illness was not causative of his offending.
In the present case, there was no concession or agreement as to the mitigating effect of the appellant's PTSD and whether it was causative of the offending. Moreover, the sentencing judge in the present case made it crystal clear to defence counsel that he did not accept that the appellant's PTSD was causative of the offending.
The relevant legal principles applicable to ground 3 were stated in Suleiman.[49] We adopt that statement of principles without repeating it.
[49] Suleiman [37] - [47].
There was no denial of procedural fairness in the present case. As we have just observed, his Honour put defence counsel on notice that the expert evidence provided by the appellant did not enable him to find that the appellant's PTSD was causative of the offending. In our opinion, this was all that procedural fairness required in the present case. It was, of course, open to defence counsel to apply for an adjournment, if he thought there was some prospect that an adjournment would benefit the appellant, but he did not do so. It is not for this court to speculate why defence counsel did not apply for an adjournment. Nothing done by the sentencing judge deprived defence counsel of that opportunity.
Ground 3 has no reasonable prospect of succeeding.

The appellant's application dated 21 August 2020

Earlier in these reasons, we referred to the appellant's unsuccessful application for bail pending appeal. On 21 August 2020, the appellant filed an application that, at the hearing of the application for bail and at the hearing of the appeal, the appellant be permitted to rely upon the affidavit of the appellant's lawyer, Trent Mark Andrews, sworn 21 August 2020. Mr Andrews annexed to his affidavit a letter written by Dr Samuel, dated 10 August 2020, and a psychological report written by Mr Hetebry, dated 13 August 2020, which was accompanied by Mr Hetebry's curriculum vitae.
Mr Andrews' affidavit and the documents annexed to it do not support a ground of appeal and were not referred to in the written submissions in support of the grounds.
At the hearing of the appeal, when the application and affidavit were drawn to the attention of the appellant's counsel, counsel confirmed that the material was only relevant in the event that the court allowed the appeal and proceeded to resentence the appellant. Counsel for the appellant further confirmed that the appellant did not rely upon the material for any other purpose in connection with the appeal.[50]
[50] Appeal ts 14.
As we would not allow the appeal, the additional material referred to above has not been taken into account. The application must be dismissed.

Conclusion and orders

None of the grounds of appeal have a reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeal dismissed. The orders we would make are as follows:
(1)The application to adduce additional evidence filed on 21 August 2020 is dismissed.
(2)Leave to appeal is refused on all grounds.
(3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
9 FEBRUARY 2021