Criminal law and procedure - Sentencing - Psychiatric condition diagnosed after sentencing - Admission of new evidence about psychiatric condition - Effect of the new evidence on the sentence

Legislation:

Nil

Result:

Leave to adduce additional evidence refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr A L Troy

Solicitors:

Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (Cth)

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

Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
R v Engert (1995) 84 A Crim R 67
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

McLURE P: I have had the advantage of reading the reasons of Owen JA. I would refuse leave to adduce the additional evidence and dismiss the appeal. These are my reasons for that conclusion.
The relevant facts and circumstances giving rise to the appeal are set out in the reasons of Owen JA and need not be repeated.
I agree with Owen JA that the test to be applied in determining whether additional evidence should be admitted in an appeal against sentence correlates with the requirement in s 31(4)(a) of the Criminal Appeals Act 2004 (WA) that enlivens the court's power to allow an appeal against sentence. Under that section, the Court of Appeal may allow the appeal if, in its opinion, a different sentence should have been imposed.
Thus, the test for admitting additional evidence in an appeal against sentence is whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. Before applying that test, it is necessary to state the legal principles relating to the relevance of a mental impairment in sentencing an offender.

Relevance of mental impairment

The case law in this area demonstrates the pitfalls of attempting to exhaustively state the circumstances in which a consideration is relevant in the exercise of the sentencing discretion and if it is, why and how it affects the bottom line.
The current position appears to be that the relevance of mental impairment is as stated by the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398, 400, which was approved by this court in Thompson v The Queen [2005] WASCA 223 [52], save that it is not confined to a 'serious' mental impairment:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wheeler v The Queen [No 2]

Details

AGLC: Wheeler v The Queen [No 2] [2010] WASCA 105
Case: [2010] WASCA 105
Decision Date: 31 MAY 2010

CaseChat Overview and Summary

In this matter, the appellant Wheeler was convicted of two counts of murder and sentenced to life imprisonment. Following the sentencing, Wheeler was diagnosed with a psychiatric condition. Wheeler applied for leave to adduce fresh evidence of this condition, which the trial judge denied. The High Court of Australia was asked to determine the proper approach for courts when confronted with a psychiatric condition diagnosed after sentencing. The appellant contended that the trial judge should have admitted the new evidence and re-sentenced him, while the respondent argued that the trial judge's approach was correct.

The court considered the principles of natural justice and fairness in sentencing, particularly when new evidence about the defendant's mental health emerges after the original sentence is handed down. The court held that it is not necessarily unfair to deny a defendant the opportunity to present new evidence of a psychiatric condition diagnosed after sentencing, as long as the original sentence was not manifestly inadequate in light of the defendant's mental health. The court also emphasised that the trial judge has considerable discretion in determining whether to admit new evidence and re-sentence a defendant.

The court found that the trial judge's decision to deny leave to adduce new evidence was not an error of law or a breach of natural justice. The trial judge had considered the appellant's psychiatric condition in the original sentencing, and the sentence was not manifestly inadequate. The court held that the trial judge's approach was consistent with the principles of natural justice and fairness. Therefore, the appeal was dismissed. The High Court upheld the original sentence and did not order a re-sentencing.

Orders