Paparone v The Queen - [2000] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PAPARONE -v- THE QUEEN [2000] WASCA 127

CORAM: KENNEDY J
WALLWORK J
MURRAY J

HEARD: 11 FEBRUARY 2000

DELIVERED : 12 MAY 2000

FILE NO/S: CCA 225 of 1999

BETWEEN: CARMELO JOSEF PAPARONE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Manufacturing amphetamines - Possession of methylamphetamine with intent to sell or supply it to another (two counts) - Diagnosis of attention deficit/hyperactivity disorder - Whether causal connection between disorder and offending behaviour - Effect of disorder on sentence - Principles discussed - Sentences of 2-1/2 years and 1 year on counts of possessing methylamphetamine with intent to sell or supply to another, to be served concurrently - Sentence of 3 years' imprisonment on count of manufacturing amphetamines, to be served cumulatively upon previous sentences

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant : Mr M T Trowell QC & Mr G W Massey
Respondent: Mr R E Cock QC

Solicitors:

Applicant : Fiocco Hopkins Nash
Respondent: State Director of Public Prosecutions

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

Hawkins v The Queen, unreported; CCA SCt of WA; Library No 970194; 1 May 1997
Nevermann (1989) 43 A Crim R 347
R v CW [2000] WASCA 81
R v Dalgety [2000] WASCA 10
R v GP (1997) 18 WAR 196
R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998
R v Liddington (1997) 18 WAR 394
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Olbrich (1999) 73 ALJR 1550
R v Richards [1999] WASCA 105
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Watson v The Queen [2000] WASCA 119

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bekink v The Queen [1999] WASCA 160
Cox v Whitehead [1999] WASCA 277
Evans v The Queen [1999] WASCA 195
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Lim v The Queen [1999] WASCA 296
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell (1997) 94 A Crim R 35
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Eliasen (1991) 53 A Crim R 391
R v Todd [1976] Qd R 21
R v Tsiaras (1996) 1 VR 398
R v Weng Keong Chan (1989) 38 A Crim R 337
Sindel v The Queen, unreported; CCA SCt of WA; Library No 990110; 16 March 1999
Stewart v Waghorn [1999] WASCA 150
Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996
"Y" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 980402; 23 July 1998

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the orders which his Honour proposes.
WALLWORK J: On 8 October 1999 in the District Court at Perth the applicant was sentenced to an effective term of 5-1/2 years imprisonment and ordered to pay a fine of $750 in connection with four drug offences. He was ordered to be eligible for parole with respect to the prison sentences.
The applicant had pleaded guilty to a charge of manufacturing amphetamines in his residence at Marangaroo between November 1998 and April 1999. For that offence he was sentenced to a term of 3 years imprisonment. He had also pleaded guilty to a charge that at Fremantle on 6 May 1999 he had in his possession some methylamphetamine with intent to sell or supply it to another. For that offence he was sentenced to 2-1/2 years imprisonment to be served cumulatively upon the earlier 3 year sentence. He was further sentenced to a term of 1 year's imprisonment to be served concurrently with the earlier sentences for having in his possession at Marangaroo on 6 May 1999 some methylamphetamine with intent to sell or supply it to another. For another offence of having in his possession a small quantity of anabolic steroid for his own use, he was fined $750.
The applicant had been charged with the abovementioned offences after detectives had searched a vehicle in which he was a passenger on 6 May 1999 at Fremantle. The applicant and one other person were in the vehicle. In the glove-box lining was a packet of amphetamine, weighing 28.1 grams at 70 per cent purity. Following that discovery, the police had searched the applicant's home and found what the learned Judge described as an "amphetamine factory". There was also a quantity of 7.1 grams of amphetamine found in the refrigerator in the kitchen. That quantity of the drug had the same level of purity as the 28.1 grams of the same drug which had been found in the vehicle at Fremantle. The police officers also found some anabolic steroid at the premises.
In his sentencing remarks the learned sentencing Judge said that the applicant and the other offender in the vehicle had given quite different explanations to the police after their arrests. His Honour said that it had been put to him for the applicant, as it had been put to the police, that the reason the 28.1 grams of amphetamine had been in the car was that the co‑offender had earlier taken a quantity of amphetamine to the applicant's home to have it diluted.

The applicant said he had kept the second quantity of 7.1 grams mainly for his own use. He had conceded that he may have sold or shared some of it with friends. He said that it was the remainder of the drug from that which the police had located in the glove-box.
His Honour said that no explanation had been given as to why the applicant would have been given 7.1 grams of the drug by the co‑offender, simply for having diluted it. That although he could not find it on the facts, a simpler explanation could have been that the applicant had made the amphetamine, some of which was in his refrigerator and some of which was in the car. His Honour said that the fact that both quantities were of the same purity was not a coincidence.
His Honour noted that the applicant had pleaded guilty to all the charges at an early opportunity, and for that he was entitled to a credit. He noted that the applicant was 29 years of age and said that he would treat him as a first offender.
At the hearing of this application the primary ground for the applicant was that the learned sentencing Judge had not accepted that an attention deficit disorder from which the applicant was suffering had been the real cause of the offending and should be treated as a mitigating factor.
It had been put to his Honour on behalf of the applicant that the attention deficit disorder had resulted in the applicant taking drugs on a self‑help basis for the purpose of alleviating the symptoms of his disorder and that this had resulted in the circumstances leading to the offences. The learned Judge had said that he was not able to make a finding of fact on that matter. His Honour said that he did not dispute the medical diagnosis of the disorder, but he said that the disorder had had no necessary connection with the manufacture or possession of illicit drugs. His Honour said that many people have an attention deficit disorder condition and have no connection with the drug trade at all. He said he found it difficult to accept that there was any such connection and that:
"I sentence you without making a finding about that other than what I have already indicated."
The learned Judge also said that there was no basis on which a suspended sentence could be imposed; that people who are involved in amphetamines should be aware that the courts have for some time regarded amphetamines not as a low‑level or mid‑level drug, but as a drug at the highest end of the tariff, in the same category for sentencing purposes as heroin; that there could be no doubt that people who establish a process for the manufacture of amphetamines and are found in possession of significant quantities of the drug in a public place, with a significant quantity of it in their own place, must be facing a custodial term. He said that that was not to say that he was making a finding that the applicant did not use any of the drug for his own use. His Honour said that he was prepared to accept that there had been an element of his own use involved, but the applicant had pleaded guilty to two counts of having possession of the drug with intent to sell or supply; that people who are involved in the sale or supply of amphetamine must look seriously at a custodial term.
It had been put to the learned Judge that there had been no indicia of significant sales of drugs such as significant quantities of money and so on. In the absence of that sort of evidence his Honour said he was prepared to adopt a more modest approach, but one which necessarily involved an immediate custodial order.
It was submitted that the learned Judge had erred in not taking into account the medical circumstances of the applicant and in not making a finding of mitigation of sentence arising from the connection between the applicant's medical circumstances and his criminal offences.
The learned Judge came to the conclusion that on the applicant's own admission, between November 1998 and April 1999, he had acquired and set up in his house at Marangaroo, a process for the making of amphetamine using information obtained from the Internet. It was put to his Honour that the applicant's case had involved an unusual situation where the applicant had been essentially indulging in criminal activity to satisfy a medical need, the symptoms of which had been diagnosed by an expert psychiatrist and supported by a report from a psychologist. It was submitted that a direct connection had been established between the applicant's illicit behaviour and his attempt to treat his medical problems. It was said by his counsel that the applicant had begun using drugs when he had been given some medication by a friend. He had found that the amphetamine made his life more manageable. However, at the time of sentencing he understood the problem and had pleaded guilty on the fast‑track system with no attempt to minimise his role or his misconduct. There was a medical diagnosis which supported his explanation and there was a real prospect of rehabilitation.
On the other hand the Crown's position before the learned Judge had been that the applicant had been involved in the drug trade. He had pleaded guilty to the manufacture of drugs over some six months. He had admitted that drugs had been brought to him and that he had cut them with epsom salts. It had not been a one‑off offence. The medical condition which had been raised could not be said to have contributed to the commission of the offences. Further, its existence did not reduce the offender's moral culpability with respect to the offences. There had been no exceptional circumstances which would warrant a suspension of a prison term. The seriousness of the offences clearly militated against any such suspension.
The applicant submitted on this application that the learned sentencing Judge should have given adequate reasons for rejecting the opinions of the psychiatrist and the psychologist as those opinions had not been contradicted by other evidence.
The psychologist had said that often ADHD sufferers "self‑medicate" with a variety of substances in a bid to be able to function normally in society. That it seemed that in a bid to get rid of the boredom and to get things done, the applicant had turned to illicit drugs. He had initially experimented with a friend's prescribed medication for an ADHD condition. As these drugs had helped him perform more efficiently in his work, he had attempted to make his own variety of amphetamine from a recipe on the Internet.
A consultant psychiatrist, had then conducted three interviews with the applicant and had arranged for electroencephalographic recording, axial tomography of the brain and relevant blood tests. He had also arranged a urine toxicology screen for alcohol, illicit substances and substances of abuse.
The applicant had told the psychiatrist that one of his friends had been diagnosed with attention deficit disorder and had been taking stimulants prescribed for him by his psychiatrist. The applicant said he had accepted several stimulant tablets from his friend. Within a short time he had felt significantly better, with his self‑esteem and concentration improving. Instead of seeking expert help he had embarked upon the use of illicit stimulants, being amphetamines and cocaine. He had initially benefited from using these, but later the effect had worn off and the whole exercise had become very expensive. He had been buying methylamphetamine from drug dealers. He said that guilt had been nagging at him all the time and he had started to become depressed. In order to save money and benefit from the methylamphetamine, he had started to manufacture it at home using 3 to 4 grams per week, which occasionally increased to 7 grams per week. However, when he had tried to get off the substance he had started to experience withdrawal symptoms and severe depressive symptoms.
The psychiatrist said that the psychologist had found many significant clinical factors which were of concern, including areas of obsession with ill‑health, feelings of guilt, self‑criticism, uselessness and thoughts of being persecuted by others. There had also been evidence of the applicant feeling out of touch with reality and being "obsessive compulsive", with thoughts of self‑destruction and evidence of low energy and depression. There had been a disorganised thought process and a moderately high level of anxiety. The psychologist thought that the applicant had scored "high" on all ADD and ADHD scales and had concluded that the applicant clearly fitted the ADHD criteria, particularly on the hypersensitivity scales.
On examination the psychiatrist had found that the applicant was "accelerated and pressured". He had shown foreclosure of thought and significant impulsivity in the interview. He had expressed paranoid beliefs about certain people and situations, but these had not been of a bizarre nature.
The psychiatrist made a diagnosis of an early stage of amphetamine induced psychotic disorder with delusions in a young man with attention deficit disorder which had gradually developed from childhood attention deficit/hyperactivity disorder, combined type (ADHD). An additional diagnosis was made of amphetamine dependence due to self‑treatment of ADHD symptoms. The psychiatrist concluded:
"I see Mr Paparone's alleged offence as directly linked to him seeking relief from symptoms of attention deficit disorder which he has been suffering from since his childhood. The disorder seems to have been interfering with his overall functioning and performance and upon experimentation with prescription stimulants he turned to illicit stimulants instead. Sufferers from ADHD tend to act in an impulsive and often self‑damaging manner which has resulted in Mr Paparone's case in his dependence upon illicit stimulants. His obsessional personality and associated depression further complicated the matter. At the time of his presentation he was clearly suffering from a mild psychotic state related to excessive use of stimulants."
The psychiatrist was of the opinion that by 9 August 1999 the applicant had been detoxified from the effects of long‑term use of amphetamines. His opinion was that the applicant should undergo a formal rehabilitation course through the Alcohol and Drug Abuse Authority. Further, he should be treated for his ADD disorder and regularly monitored for abuse of other substances. He concluded that if the applicant could successfully abstain from illicit drugs and comply with the treatment for ADD disorder, his prognosis was favourable, especially in the light of the applicant having family and two small children. He noted that the applicant seemed to come from a strict traditional Italian background where family values played a major role and that this was likely to be an anchorage in the management of his condition. He recommended that the applicant should also undergo appropriate psychotherapy geared towards the resolution of his conflicts regarding the psychological damage he had sustained as a result of suffering from ADD. He respectfully recommended that a non‑custodial sentence be considered. He noted that:
"The effect of imprisonment, in this clinical scenario, would be seen from a psychiatric point of view as counter‑productive and damaging. Furthermore there is a distinct possibility of Mr Paparone entrenching in illegal ways to obtain 'cure' for his disorder while in prison."
It had been firmly put by counsel to the learned sentencing Judge that there was an explanation as to why the applicant had been indulging in the criminal behaviour. Two qualified people had given an opinion on the matter. It had been put to the learned Judge that the applicant had begun using the drugs when he was given some medication by a friend. He had then found his life more manageable. It had been submitted that this was one of the rare exceptional cases where the learned Judge would have been quite justified in suspending a sentence of imprisonment, as there had been no attempt by the applicant to minimise his role and his misconduct. It had been said for the applicant that since the time of his arrest he had attempted to remedy the situation. Further, that there had been none of the trappings of substantial commercial dealing.
When he was sentencing the applicant the learned Judge said he found it difficult to accept that there was any connection between the manufacture or possession of the illicit drugs and the medical diagnosis. With respect to the proposition that the manufacturing process had been set up for the purpose of alleviating his symptoms, his Honour said that he was not able to make a finding of fact on that matter.
One of the problems with the learned Judge's finding was that he said:
"I am not disputing the medical diagnosis but it has no necessary connection with the manufacture or possession of illicit drugs. Many people have that condition who have no connection with the drug trade whatever. I simply find it difficult for myself to accept that there is any such connection and I sentence you without making a finding about that other than what I have already indicated."
The problem with the finding were the words:
"I am not disputing the medical diagnosis but it has no necessary connection with the manufacture or possession of illicit drugs."
In R v Olbrich (1999) 73 ALJR 1550 at 1555, Gleeson CJ, Gaudron, Hayne and Callinan JJ, when discussing the standard of proof which should be applied after a plea of guilty with respect to the relevant facts said:
"As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey (1998) 1 VR 359 at 369 - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt'. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probability."
In this case it is clear that the learned Judge was not satisfied on the balance of probabilities that the applicant's offences were connected to a significant extent to the ADHD problem. However a question arises as to whether his Honour adequately and correctly dealt with the submission which had been made to him on that aspect.
In Nevermann (1989) 43 A Crim R 347 at 349 Malcolm CJ said:
"The decision what sentence to impose involves the exercise of a discretion based upon the relevant facts as found by the sentencing Judge. Consequently the process of reasoning needs to be revealed. In my opinion a sentencing Judge, no less than a trial Judge has a duty to reveal his reasons … It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practical in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly without being developed in any detail … It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

Those remarks were applied in R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998.
The major part of the plea in mitigation for the applicant had been that the applicant should be allowed a substantial reduction in the otherwise appropriate disposition of the matter due to the contributing effect of his ADHD condition. In the plea, reliance had been placed on the opinions of the psychologist and the psychiatrist.
In my view the learned Judge erred when he stated that the medical diagnosis had no necessary connection with the manufacture or the possession of the drugs. The word "necessary" indicates that his Honour was apparently not applying the correct standard of proof as stated in Olbrich (supra). The expert opinions had in no way been diminished.
The question then is, was the sentence imposed too severe in all the circumstances? In my view it was. If that view is correct, then this Court should resentence the applicant.
Having all the circumstances of the offences in mind, and the fact that the expert evidence indicates that the applicant suffered from ADHD which had affected his general approach to amphetamines, and also to the prospects of his rehabilitation which were revealed in the report of the psychiatrist, I would reduce the sentence to one of 4 years imprisonment and order that the sentence be suspended.
The sentence would be structured by reducing the first sentence of 3 years imprisonment for the manufacture of the drug to one of 2 years imprisonment and by reducing the sentence of 2-1/2 years imprisonment for the offence concerning the drugs in the car to one of 2 years imprisonment. I would not reduce the other sentences. The aggregate sentence of imprisonment would be suspended.

MURRAY J: I am grateful in this matter to have had access to a draft of the reasons for decision published by Wallwork J. His Honour would grant leave and allow the appeal. He would quash the sentences imposed, which were 3 years imprisonment for an offence of manufacturing amphetamines between November 1998 and April 1999, 2‑1/2 years imprisonment for having possession of methylamphetamine with intent to sell or supply it to another on 6 May 1999 and 1 year imprisonment for a further offence of possession of methylamphetamine with intent on 6 May 1999. The sentences of 3 years imprisonment and 2‑1/2 years imprisonment were ordered to be served cumulatively while the sentence of 1 year imprisonment was permitted to run concurrently. The aggregate term of imprisonment was therefore 5‑1/2 years. Wallwork J would reduce that term to 4 years by imposing sentences of 2 years, 2 years cumulative and 1 year concurrent respectively for the offences described above.
I regret that I take a different view. The facts of the case have been sufficiently described by Wallwork J. As his Honour has remarked, the sentencing Judge doubted that he could make findings of fact which adequately and completely explained to his satisfaction the facts of the case. In particular, it is clear that his Honour did not accept the applicant's explanation for the possession of the amphetamine secreted in his car, or at his home, and so in the end his Honour was left with the finding of a reasonably substantial quantity of the drug in the applicant's motor vehicle, admittedly with intent to sell or supply, and a smaller quantity of the same degree of purity at his home. It is clear that the applicant was dealt with upon the basis that there was a distinct commercial element in the possession, although the sentencing Judge was prepared to accept that some of the drug in the applicant's home was for his own use. In addition, there was at that place what his Honour shortly but accurately described as an "amphetamine factory". His Honour recognised, however, that in that regard there was not on the evidence the indicia of significant sales of this drug which, as the sentencing Judge remarked, is treated by the courts as being in the same category for sentencing purposes as heroin.
The sentencing Judge was asked to suspend any sentence he might be minded to impose. He declined to do so, saying that upon the authorities there was nothing in the material before him which would justify taking that course. He therefore imposed the sentences, which his Honour regarded as moderate, to which I have referred above. In doing so his Honour found mitigation in the early pleas of guilty and the applicant's previous history. He was a man at that time of 29 years of age, married with a small child, employed as an engine reconditioner in stable employment which had lasted for 8 years. He had a traffic record and a minor criminal history, but he had never previously been imprisoned and the sentencing Judge was content to treat him as a first offender.
The grounds upon which the application for leave proceeded are as follows:
"1.The learned sentencing Judge erred in law in failing to make a finding on the disputed mitigating circumstance advanced by the applicant, namely that there was a connection between the applicant's medical diagnosis and his criminal activity.
2.The learned sentencing Judge erred in law in the exercise of his sentencing discretion in failing to give sufficient weight (if any) to the applicant's medical circumstances:
(a)as a fact in assessing the prospects of the applicant's rehabilitation and whether, in the circumstances, it would have been merciful to order that the terms of his imprisonment be suspended; and
(b)as a fact in mitigation of sentence to justify the imposition of a lesser term of imprisonment."
His Honour dealt with this issue in his sentencing remarks in the following manner:
"I have been asked by your counsel to deal with you on a basis other than that which would normally be adopted in matters such as this because you have been diagnosed as having attention deficit disorder which, it is said, makes you hyperactive and it is said you have set up this elaborate process for the purpose of alleviating your symptoms in that regard. Again the court is not able to make a finding of fact on that matter. I am not disputing the medical diagnosis but it has no necessary connection with the manufacture or possession of illicit drugs. Many people have that condition who have no connection with the drug trade whatever. I simply find it difficult for myself to accept that there is any such connection and I sentence you without making a finding about that other than what I have already indicated."
It is clear therefore that his Honour did make a finding upon this issue when he said he did not accept that there was a connection between the offences for which the applicant was to be sentenced and his attention deficit disorder which was relevant for sentencing purposes. He therefore gave no weight to that disorder, from which he accepted the applicant suffered, in relation to the sentences he imposed.
In the first place it seems to me, with respect to the contrary view expressed by Wallwork J, that there is nothing to suggest that the sentencing Judge erred in his handling of the fact finding process. His Honour seems to have appreciated that the applicant bore the onus to satisfy him that there was a relevant connection between his attention deficit disorder and his offending behaviour sufficient to enable that disorder to operate as a mitigatory circumstance. His Honour concluded that he was not so satisfied and there is nothing to suggest that he applied other than the standard of proof on the balance of probabilities as the burden borne by the applicant.
Nor is his conclusion that he was not so satisfied to be taken as treating the absence of the relevant connection between the disorder and the offending as a circumstance of aggravation which would need to be established by the prosecution beyond reasonable doubt. To my mind the process involved was correctly handled and the case is on all fours with the process of the sentencing Judge upheld by the High Court in R v Olbrich (1999) 73 ALJR 1550.
The psychological and psychiatric evidence which was before the sentencing Court has been discussed by Wallwork J. I need only refer to it briefly. The first expert to report on the applicant was the clinical psychologist, Ms Coxon. The essential history was that the applicant had long been afflicted by the disorder in question. A friend had a similar disorder. He took prescribed medication which was amphetamine based. The applicant tried it unlawfully. He found it helped to reduce the adverse symptoms of the disorder. His response was not to seek treatment himself, but to establish the amphetamine factory at his home using information he obtained on the internet. As has been seen, the process of manufacture went on over the period between November 1998 and April 1999. I have mentioned the commercial elements to the affair as found by the sentencing Judge, but inevitably the applicant became dependent on amphetamine in greater quantities. He was buying from dealers, an expensive process, as well as seeking to manufacture the drug himself until, as has been noted, he was found in possession of amphetamines with intent to sell or supply, no doubt to recoup at least some part of his outlay.
Ms Coxon recommended that a psychiatrist be consulted and the applicant saw Dr Srna. He reported to the Court that in his opinion the applicant's offending was in the way described above "directly linked to him seeking relief from symptoms of Attention Deficit Disorder". The doctor noted that the experiment with prescription stimulants had led the applicant to turn to illicit stimulants instead of himself seeking treatment. He added, "Sufferers from ADHD tend to act in an impulsive and often self‑damaging manner, which has resulted in Mr Paparone's case in his dependence upon illicit stimulants."
It seems that after the applicant was charged he did finally seek professional help, was detoxified and commenced on a treatment programme directed to addressing the psychological problems arising from his disorder and in addition, his dependence on illicit drugs. Finally, Dr Srna expressed the view that:
"In the light of Mr Paparone's diagnosis and associated psychiatric problems I respectfully recommend that a non‑custodial sentence be considered. The effect of imprisonment, in this clinical scenario, would be seen from a psychiatric point of view as counter productive and damaging. Furthermore, there is a distinct possibility of Mr Paparone entrenching in illegal ways to obtain a 'cure' for his disorder while in the prison."
In the light of those reports the pre‑sentence report endorsed that recommendation and thought that the successful completion of a programme of treatment would reduce the risk of the applicant re‑offending. The reporting officer recommended an intensive supervision order rather than a suspended prison sentence "as supervision is viewed as being of vital importance in risk reduction." It is, of course, the case that the Sentencing Act1995 (WA), s 76 does not permit the order of suspension to be accompanied by conditions, including for the supervision of the offender in the community.
There has been much written in recent years in this Court upon the relevance to the sentencing process of physical disease, mental illness, psychological disorders and intellectual deficit or handicap. Without attempting a full roll call of the decided cases, reference may be made to Hawkins v The Queen, unreported; CCA SCt of WA; Library No 970194; 1 May 1997 per Murray J, with whom Malcolm CJ and Steytler J agreed, at 6 ‑ 8 (diagnosed schizophrenia); R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 per Murray J, with whom Franklyn and Anderson JJ agreed, at 12 ‑ 14 (intellectual deficit and psychological problems); Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 per Steytler J, with whom Pidgeon and White JJ agreed, at 9 (depressive illness); R v Richards [1999] WASCA 105, 30 July 1999 per Pidgeon J, with whom Malcolm CJ and Ipp J agreed, at par [43] ‑ par [45] (depressive illness); R v Dalgety [2000] WASCA 10, 3 February 2000 per Kennedy J, with whom Wallwork and Murray JJ agreed, at par [17] ‑ par [21] (intellectual deficit); R v CW [2000] WASCA 81, 3 April 2000 per Wallwork J at par [30] ‑ par [45] (intellectual deficit); and most recently Watson v The Queen [2000] WASCA 119, 5 May 2000 per Malcolm CJ, with whom Wallwork and Murray JJ agreed, at par [87] ‑ par [89] (intellectual deficit and depressive disorder). Those cases refer to a number of other authorities of persuasive value from other jurisdictions.
The following propositions at least would appear to emerge. The presence in the offender of such conditions as those referred to above will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.
Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition, as I put it in CW, "at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question." In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.
Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in Dalgety, that such considerations of deterrence will continue to operate "sensibly moderated". Only in an extreme case will the relevance of such considerations be eliminated entirely.
For completeness I should add that quite apart from the situation where there is a causal link or connection between the offending and the condition in question and whether or not that is the case, if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon the particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general principles of sentencing, to moderate the punishment or choose an alternative disposition.
If those general principles are applied to this case, in my respectful opinion it can be seen that the sentencing Judge's conclusion was correct. There was no causal link of the required kind between the applicant's attention deficit disorder and his offending behaviour. He did not commence to manufacture, consume and sell amphetamines because he suffered from the disorder, but by reason of his deliberate choice, initially taken to obtain relief from the symptoms of the disorder. There was never any suggestion that the disorder precluded him from seeking treatment and the prescription of appropriate medication. No doubt the fact that he suffered from the disorder provides some explanation for his commission of the offences, but it does not in my opinion in any way mitigate punishment.
It follows that such a consideration could have no impact in considering the suggestion that any sentences of imprisonment should be suspended and in truth there was nothing in the case, as the sentencing Judge recognised, to justify the suspension of the sentences as a merciful disposition or to promote the rehabilitation process. There was nothing to indicate that appropriate treatment and counselling would not or could not be provided in prison, as in the community, if the applicant was properly motivated to accept such treatment and to work to remedy his problems. The offences were too serious for the proper disposition to be other than sentences of imprisonment to be immediately served: cf R v GP (1997) 18 WAR 196; R v Liddington (1997) 18 WAR 394.
I would grant leave to appeal but, for the above reasons, I would dismiss the appeal.