Wheeler v The Queen [No 2]
[2010] WASCA 105
•31 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WHEELER -v- THE QUEEN [No 2] [2010] WASCA 105
CORAM: McLURE P
OWEN JA
NEWNES JA
HEARD: 22 MARCH 2010
DELIVERED : 31 MAY 2010
FILE NO/S: CACR 134 of 2009
BETWEEN: CARL WILLIAM WHEELER
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 1197 of 2008
Catchwords:
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: Krijestorac v The State of Western Australia [2010] WASCA 35 [18] ‑ [19] approving R v Verdins (2007) 16 VR 269. The upshot is that a mental impairment may be a relevant sentencing consideration even if it is not serious and may be relevant even if it is not causative (in the extended sense referred to by Wheeler JA in Krijestorac).
However, a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. The complexities are explained by Gleeson CJ in R vEngert (1995) 84 A Crim R 67 as follows:
[T]he question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system (71).
The appellant relies on the additional evidence to establish that the appellant suffered from a mental condition that was causally related (in the Krijestorac sense) to all of the appellant's offending, and thus the mental condition reduced the appellant's moral culpability.
The effect of mental impairment on culpability depends upon the nature, effect and severity of the condition and its symptoms: Verdins [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.
Application of the principles
It is a matter for this court to assess what, if any, weight should be given to the reports of the psychologists, Mr T Watson-Munro and Mr Kelly and the psychiatrist, Mr Mander. I would attach no weight to that evidence for the following reasons. First, the task of the experts was a very difficult one. In the second half of 2009, with no contact with the appellant at any time prior to his imprisonment, they were asked to give an opinion on the appellant's mental condition at the time he committed the offences. The first offences were committed over 10 years earlier. The offences were committed in July 1999 (two), September 2000 (two),
September 2001 (two), August 2002 (two) and January, June, September and November 2004, a period of over five years.
Secondly, the experts do not explain the nature or severity of the appellant's condition (a generalised anxiety disorder) or symptoms.
Thirdly, up to and at the time of sentencing in October 2008, neither the appellant nor his legal advisers had identified any cause for concern about the appellant's mental health. Any impairment in his functioning had escaped the appellant's attention and, it would seem, the attention of those close to him. The pre‑sentence report notes the appellant described himself as fit and healthy until he was charged when he commenced to have concerns about his health due to elevated stress.
Fourthly, according to Mr Mander, the appellant's anxiety state fluctuated with the ebb and flow of the stresses in his life. Mr Mander reports that a significant stressor was the investigation of the appellant's tax affairs by the Australian Taxation Office, which investigations commenced in 2002. Anxiety occasioned by those investigations could not be regarded as reducing the appellant's culpability.
Fifthly, even after his conviction the appellant failed to accept that he had done anything wrong. The pre‑sentence report records the appellant as stating 'I didn't commit fraud, I did it for the business. I don't regret what I did, I did it to make the company grow stronger'. The appellant's lack of insight into his offending persisted when he described to Mr Mander his behaviour as 'irresponsible' rather than criminal. Against that background, it is difficult to accept that any anxiety caused impairment of judgment made any material contribution to the offending.
The additional evidence does not satisfy the test of admission; it does not cause me to conclude that a different sentence should have been imposed.
OWEN JA: The appellant was convicted on his own plea of a number of offences of defrauding the Commonwealth and of obtaining a financial advantage by deception relating to his taxation affairs. He was sentenced to immediate imprisonment for a term of 3 years and 6 months. The appellant wishes to appeal against the sentence.
The sole ground of appeal is that information that has become available since the date of sentencing reflects on the appellant's mental state at the time the offences were committed. The appellant has previously obtained leave to commence the appeal out of time and has
been granted leave to appeal. These reasons cover the appellant's application to adduce additional evidence and the substantive appeal.
Background
The appellant was 50 years of age at the time of sentencing. He was the managing director and sole shareholder of Floreat Meat Exporters Pty Ltd (FME), a company involved in the meat industry. The appellant's connection with the industry began as a child with the involvement of his parents and grandparents in a similar business in the United Kingdom. He established his own business when he came to Australia in 1991. Apart from the appellant the company had two employees, one of whom was the appellant's wife. On a number of occasions over a period of about five and a half years, between July 1999 and November 2004, the appellant failed to declare income in certain personal tax returns and the company's tax returns, and he claimed personal expenditure as business expenditure.
This conduct led to the appellant being charged on an indictment dated 19 August 2008 with four counts of defrauding the Commonwealth by submitting tax returns that were false, contrary to s 29D of the Crimes Act 1914 (Cth) (counts 1, 2 3 and 4). He was also charged with four counts of, by deception, dishonestly obtaining a financial advantage from the Australian Taxation Office by lodging a false tax return contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) (counts 5, 7, 9 and 11). Further, he was charged with four counts of, by deception, dishonestly obtaining a financial advantage for another (FME) from the Australian Taxation Office by lodging a false tax return contrary to s 134.2(1) of the Criminal Code (Cth) (counts 6, 8, 10 and 12).
Material facts for the individual counts
On or about 27 July 1999 (count 2) and 28 July 1999 (count 1), the appellant failed to declare funds deposited in a foreign bank account as personal income and income of his business, FME. He directed funds in the amount of $126,311.50 to be deposited into a bank account in his name with Lloyds Bank in the United Kingdom. This resulted in tax avoidance by the appellant in the amount of $61,261.07 (count 1) and by FME in the amount of $45,472.14 (count 2).
On or about 6 September 2000 the appellant submitted tax returns for himself and for FME in which he again failed to declare funds in the amount of $113,602.53 that he had directed to be deposited in the Lloyds Bank account as personal income and income of FME. This resulted in personal tax avoidance in the amount of $55,097.46 and tax avoidance by FME in the amount of $40,896.91. The submission of these tax returns was the subject of counts 3 and 4.
The funds the subject of counts 1 to 4 were used by the appellant for the renovation of his family home in Floreat and the running of the business, which had serious cash flow problems at the time.
On or about 14 September 2001 (count 5) and 17 September 2001 (count 6), the appellant failed to declare funds deposited into a foreign bank account as personal income and income of FME and claimed personal expenses as tax deductible expenses of the company. The appellant directed funds in the amount of $1,885.71 to be paid into a bank account in the joint names of himself and his sister with HSBC Bank in the United Kingdom and failed to declare this as personal income and income of FME.
The appellant claimed 15 personal expenses totalling $66,1226.25 as expenses of the business. He directed an employee of FME to pay certain personal expenses of his with the company's funds and to record the expenses in FME's general ledger under various types of expenses, for example freight and shipping or furniture and fittings. However, most of these personal expenses were for the renovation of his family home. These business expenses were then transferred to the financial statements of the company, which statements were then used by the company's accountant to prepare FME's income tax return.
As a result of failing to declare the income deposited in the foreign bank account, the appellant personally avoided tax in the amount of $914.57. As a result of falsely claiming his own expenses as the businesses expenses, the appellant avoided tax in the amount of $32,071.24. In total, count 5 relates to personal tax avoidance of $32,985.81.
The failure to declare the income deposited in the overseas account led to the company avoiding tax in the amount of $641.14. As a result of the appellant claiming his own expenses as expenses of the business, the company avoided tax in the amount of $22,482.93. In total, count 6 relates to tax avoidance for the company in the amount of $23,124.07.
On or about 6 August 2002, the appellant again claimed 11 personal expenses totalling $34,302.60 as expenses of the business. This resulted in personal tax avoidance by the appellant of $19,908.50 (count 7) and tax avoidance by the company in the amount of $10,306.94 (count 8).
On or about 14 January 2004, the appellant failed to declare funds in the amount of $86,678.34 deposited into his overseas joint HSBC bank account as personal income and income of FME. This resulted in personal tax avoidance of $42,039 (count 9) and tax avoidance by the company of $26,003.49 (count 10).
On or about 17 September 2004 (count 11) and 16 November 2004 (count 12), the appellant failed to declare funds in the amount of $147,225.15 deposited into the joint HSBC bank account as personal income and income of FME. This resulted in personal tax avoidance of $71,404.20 (count 11) and tax avoidance by the company of $44,167.54 (count 12).
The funds the subject of counts 5, 6, 9, 10, 11 and 12 deposited into the foreign bank account were used to repay money owed by the appellant to his mother.
Investigation of Australian Taxation Office
On 13 February 2007 the appellant attended a voluntary taped record of interview with officers of the Australian Taxation Office. During the record of interview, he made the following admissions in relation to the personal expenses being claimed as expenses of the business:
(a)FME paid certain expenses ultimately listed in an annexure to the statement of material facts used at the sentencing hearing;
(b)each expense was a personal expense of the appellant and was not an honest reflection of FME's business expenditure;
(c)the expenses were recorded against expenditure in FME's income tax return; and
(d)the appellant directed the accounts staff of FME to enter each of those personal expenses as company expenses in the general ledger of FME.
In relation to the funds deposited in the foreign bank accounts, the appellant admitted that the amounts were income of FME, they were not declared to the Australian Taxation Office and they were paid by debtors of FME at the appellant's direction into bank accounts in the United Kingdom.
The financial advantage obtained by FME and the appellant in avoiding tax amounted to $472,667.13 in the manner set out in the schedule.
The sentencing remarks and the sentence
The ground of appeal relates solely to matters that the appellant says have come to light since the date of sentencing. The appellant makes no complaint of any express or implied error in the exercise of the sentencing discretion, in so far as it was based on the information available at the time. Accordingly, I can deal with the sentencing remarks in relatively short order.
The sentencing judge noted that the appellant had been in control of the business and had directed an employee to make the false entries. His Honour noted that the offending conduct began in 1999 when there were problems in the business, including the impact of mad cow disease, the foot and mouth disease outbreak in 1999 and 2000, and the collapse of the Australian dollar. The appellant was also involved in litigation with suppliers of product. He went into overseas currency transactions which resulted in court proceedings.
The appellant is married and has two children, aged six and two, who are cared for by his wife. He also has two children from a previous marriage. His Honour accepted that until these events, the appellant had led a 'blameless life and a life characterised by industry and contribution to the community'. He had no prior (relevant) record of offences. The sentencing judge recognised that the appellant had pleaded guilty at the first opportunity and had cooperated fully in relation to the interview with officers of the Australian Taxation Office. He had paid the taxation assessments that had been issued, although there may be some penalties and interest outstanding.
In determining the seriousness of the offence, his Honour had regard to the statutory penalty for the offence (a maximum of 10 years' imprisonment), the circumstances of the offending, the aggravating factors, the mitigating factors, and general and personal deterrence. In relation to the circumstances of the offending, his Honour noted that the conduct was repetitive and designed to ensure the appellant and the company did not meet their tax liabilities. The sentencing judge found that the offending involved 'a calculated and systematic fraud involving a significant sum of money' over a lengthy period of six years. The appellant deliberately submitted false tax returns, did not declare income banked into two overseas bank accounts and used company funds to meet personal expenses, declaring these as deductions. The appellant involved an employee in the deception at his direction; at one stage, requested a creditor to issue a false invoice in the name of the company, rather than his personal name; and requested overseas creditors to pay moneys owed to the company to overseas accounts. The implementation of this scheme involved effort on the part of the appellant.
The sentencing judge imposed a total sentence of immediate imprisonment for 3 years and 6 months. He structured the sentence to take account of the totality principle by reducing the length of the term for one of the counts (count 9) and by using a combination of accumulation and concurrency. The sentences were structured in the manner set out in the schedule. The appellant was made eligible for parole after having served half of the head sentence.
Ground of appeal
The sole ground of appeal is as follows:
Since the appellant was sentenced new evidence has been discovered that tends to show the true significance of facts which were in existence at the time of sentence and, had it been known by the learned sentencing judge at the time of sentencing, would have resulted in a different sentence being imposed upon the appellant.
Particulars
The appellant has been diagnosed by Dr Anthony J Mander, psychiatrist, as suffering from a generalised anxiety disorder.
The additional evidence
The appellant filed an affidavit dated 2 October 2009 to which he annexed three reports. In his affidavit, the appellant claims that he was an observer rather than a participant in his sentencing proceedings and was unaware that he was affected by a pre-existing psychiatric condition. He claims he felt numb at the end of proceedings and did not understand the process leading to his incarceration. It was some weeks before he could cope and think calmly about the matter.
During a visit by his solicitor the subject of the appellant's mental condition was raised. The appellant met with a psychologist Mr Tim Watson‑Munro in May 2009, and a report was provided. He then consulted with the prison psychologist, Mr Stephen Kelly. As a result of further legal advice the appellant saw a psychiatrist, Dr Anthony Mander. The reports of Mr Watson‑Munro, Dr Mander and Mr Kelly are the annexures to the appellant's affidavit. They are the additional evidence on which the appellant now seeks to rely.
The Watson-Munro report - 22 June 2009
In his report, Mr Watson-Munro canvasses the appellant's conviction and sentence, personal history and psychological history. The author describes the appellant as a 'highly anxious man' who has apparently been suffering 'from a psychothymic condition for much of his life' (a view not shared by Dr Mander). He found that, at the time of examination, the appellant was
experiencing an Adjustment Disorder according DSM-IV criteria which has been aggravated in recent years by the protracted nature of these proceedings, his incarceration and the prospect of now losing all which he has worked for during the course of his lifetime.
The report notes the appellant's lack of self-esteem, ongoing sense of despair regarding the future and his tendency to dissociate when speaking of traumatic experiences, which is relevant to his judgment, decision making and impulse control and referable to his offending. At the time of the examination the appellant reported suffering ongoing sleep disturbance, intense feelings of guilt avoidance reactions and an escalating difficulty in facing his ongoing problems and the world.
It was noted, however, that the appellant showed no indication of formal thought disorder, delusions or other indicia of gross psychological disturbance.
The Mander report - 1 September 2009
In his report, Dr Mander canvassed the appellant's past personal history and psychiatric history, then reached the opinion that the appellant developed what he described as a 'generalised anxiety disorder' beginning in 1998. He noted the appellant was worried and could not 'turn off' his worries and that he had marked concentration and sleep problems, had a continual sense of being on edge and was forgetful.
Dr Mander opined that such high levels of anxiety would affect judgment. The appellant did know the difference between right and wrong, but he did not have a normal level of functioning.
Dr Mander also reported that, in his opinion, the symptoms were present prior to the appellant's offending behaviour. He found it difficult to pinpoint with specificity when this began. But given the stressors described by the appellant in the middle of 1998, which continued and became serious in early 2000, he considered it 'probable that the anxiety state preceded his offending behaviour'.
His anxiety state settled in the 18 months when business improved and he had settled all outstanding debts. He developed additional depressive symptoms and recurrence of his anxiety symptoms upon the investigation of the Australian Taxation Office. Dr Mander went on to say that he had
considered the possibility that [the appellant] developed a depressive illness at this point but given that the vast majority of symptoms remained in the sphere of anxiety, [he] consider[ed] that this is best diagnosed as a recurrence of his generalised anxiety disorder although acknowledging the presence of depressive symptoms (rather than an independent depressive disorder).
The Kelly report - 29 September 2009
Mr Kelly provided a report in which he commented on the reports of Mr Watson‑Munro and Dr Mander. He agreed with their findings. He considered an important feature of the generalised anxiety disorder was significant distress or impairment in social, occupational and other important areas of functioning. He also considered the appellant had a mood disorder characterised by a number of highs and lows characteristic of a bipolar disorder.
He also commented on the appellant's tendency to immerse himself in work in response to anxiety and noted that the appellant had exhibited these tendencies while in prison. He immersed himself in a number of skills programmes to occupy himself and 'to forget where he is'. Kelly expressed the view that the appellant's condition was a result of past life experiences, rather than his current placement.
Adducing additional evidence in sentencing appeals
Generally an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) Criminal Appeals Act 2004 (WA). However, an appellate court has a broad power to 'admit any other evidence' under s 40(1)(e) of the Act.
The well known distinction between 'fresh' and 'new' evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it.
For the purpose of completeness I should add that, in terms of the conventional distinction, the additional evidence the appellant wishes to adduce is new, rather than fresh evidence. The appellant alleges he suffered from a mental impairment at the time of the offending which began some nine years prior to the date of sentencing. Had the appellant been assessed by a psychologist or psychiatrist during the time of the offending or before sentencing, if present, the impairment would have become evident. Thus with reasonable diligence the evidence would have been discovered and available at sentencing. The fact that the written reports did not exist at trial and the appellant was unaware of his mental impairment does not render the material 'fresh'.
Relevance of mental impairment to sentencing
The role that mental impairment falling short of insanity plays in the sentencing process has been considered by this court on numerous occasions: see for example Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. This court has followed and applied the principles laid down in R v Tsiaras [1996] 1 VR 398, 400 where the court said:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. 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 a 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 pursuing 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.
In Thompson, Steytler P (with whom McLure JA agreed) expressly adopted this dicta from Tsiaras in the context of 'serious psychiatric illness'. His Honour went on to say [53] ‑ [55]:
Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne (2002) 131 A Crim R 432 at [40]. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed, as it often has been: see, for example, R v Juli (1990) 50 A Crim R31 at 37; R v Hurd (1988) 38 A Crim R454 at 461, 465; Tsiaras, above, at 400; R v Balchin (1974) 9 SASR 64 at 68; R v Reynolds (1983) 10 A Crim R30; and Lauritsen v The Queen (2000) 22 WAR 442 at 456 - 459.
As to personal deterrence, as is implicit from what was said in Tsiaras, much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person's ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person: see Payne, above, at [43].
As to general deterrence, this is a factor which should often be given little weight in the case of an offender suffering from a mental disorder, such an offender not being an appropriate medium for making an example to others: R v Scognamiglio (1991) 56 A Crim R81 at 86; Anderson v The Queen [1981] VR 155 at 159. In an extreme case, considerations of general deterrence might be totally outweighed by other factors. However, in every case, the relevant factors must be balanced in a manner no different from that which is involved in every sentencing exercise: R v Letteri, unreported; CCA SCt of NSW; Library No 60497 of 1991; 18 March 1992 at 14, per Badgery-Parker J and R v Engert (1995) 84A Crim R 67 at 70-71, per Gleeson CJ.
In R v Verdins [2007] VSCA 102; (2007) 16 VR 269 the Court of Appeal in Victoria explained the meaning of the phrase 'serious psychiatric illness' used in Tsiaras. The court said, at [5] that the sentencing considerations identified in Tsiaras were not intended to be limited to cases of 'serious psychiatric illness'. One or more of the considerations may be applicable where the offender is shown to have been suffering (at the time of the offending conduct) 'from a mental disorder or abnormality or an impairment of mental function, whether or not the condition could properly be described as a (serious) mental illness'.
In Krijestorac v The State of Western Australia [2010] WASCA 35 Wheeler JA (with whom I agreed) referred to Verdins and said, at [18] ‑ [19]:
Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State.
In my view, nothing that is said in Krijestorac detracts from the force of the principles enunciated in Tsiaras and Thompson, save for the labelling of the mental impairment as a 'serious psychiatric illness'. Where the degree of moral culpability for an offence is in issue it remains necessary to identify a mental condition which is abnormal, which affects mental functioning and which is causative of the offending behaviour. It may not be necessary to label the condition as one of the well‑known disorders, such as 'schizophrenia' or 'bi‑polar' or 'chronic psychosis'. But neither is it sufficient to point to incidents that are common to the human condition, such as momentary and irrational jealousy or anger, or lapses in judgment, as abnormalities which reduce moral culpability.
The removal of the word 'serious' from the test does not mean that any abnormality will suffice. The nature and severity of the condition and its symptoms will be a relevant and important factor. This is so because it will always be necessary to decide the extent to which the abnormality actually affected the offender's mental functioning relevant to the offence and whether and to what extent it was causative of the offending conduct so as to lessen moral culpability.
In other words, the acceptance in Verdins and Krijestorac of the proposition that the relevance of a mental condition ought not to be confined to 'serious psychiatric illness' does not mean that any mental abnormality will suffice and nor does it mean that considerations of materiality can be discarded.
Causal connection
In this case the appellant claims to suffer from a 'generalised anxiety disorder' which was present during the five year and four month period in which the offences were committed. This is evidenced by reports of a psychiatrist and two psychologists compiled in 2009, well after the appellant had been convicted and sentenced.
The reports do not explain what a 'generalised anxiety disorder' entails, to what degree it is or was suffered by the appellant or in what way the disorder was causally connected to the offences committed. It seems the most that can be taken from the reports is that during the offending period the appellant suffered high levels of anxiety as a result of significant stresses experienced in his life which, according to the reports, had the potential to impair judgment and which may be relevant to the appellant's offending.
Mr Watson-Munro noted that the appellant experienced many stresses in his self-employment and personal life and this caused him to be highly anxious and stressed. He suggested that the appellant's emotional state and protracted stress would have 'intruded upon his cognition at a level of significance and accordingly impacted upon his judgment', in particular 'his capacity to critically evaluate problem situations free from psychological bias'. Mr Watson-Munro considered this to be 'of some relevance to the context and dynamics of the convictions'.
The report of Dr Mander suggested that high levels of anxiety can potentially cause a catastrophic reduction in functionality, but do not influence the ability to distinguish between right and wrong. He found that the appellant had exhibited a number of examples of poor judgment 'which would be more likely to occur in the presence of an anxiety state'. These examples included the decision to continue the completion of his new home and the decision to repay debts to his mother before his debt to the Australian Taxation Office. In reliance on the appellant's description of stressors alleged to have commenced in the middle of 1998, Dr Mander was of the opinion that it was 'probable that his anxiety state preceded his offending behaviour'.
I have a number of difficulties with the psychiatric and psychological evidence. It was prepared about 11 years after Dr Mander thought the condition may have begun and four years after the commission of the last of the offences. The opinions are expressed at a level of generality that make it difficult to determine exactly what the condition is that is said to have afflicted the appellant. Anxiety is, unfortunately, a very common feature in the human condition. The bland phrase 'a generalised anxiety disorder' does little to explain how and to what extent the condition affected the appellant's mental functioning. Nor does it assist in determining the relative severity of the condition and the symptoms. The appellant continued to conduct the business for a number of years and must have made many decisions, some right, some wrong, during that time. The reports do not provide a level of detail enabling the court to assess whether, and to what extent, the 'generalised anxiety disorder' was causative of the individual decisions (committed from time to time over a period of five and a half years) that constitute the offending conduct.
The appellant was not aware of his alleged impairment or of its symptoms and it did not affect his ability to distinguish right from wrong. The appellant's interview with the Australian Taxation Office indicated he was fully aware of his offending and the consequences involved. He evaded tax in the amount of $282,696.04 personally and $189,971.09 for FME, totalling $472,667.13. This was not an isolated incident. It was repetitive and occurred over a lengthy period of five years and four months. He abused his position as sole director and shareholder of FME and directed others to enable his offending. I consider it ambitious to suggest that a heightened level of anxiety, apparently intermittent, had a material contribution to such extended offending.
Given the stressors described by the appellant, including the outbreak of mad cow disease and foot and mouth disease, the collapse of the Australian dollar and problems in his business, Mr Watson-Munro and Dr Mander opined that it is likely that he suffered some level of the anxiety disorder since 1998. The condition is alleged to have fluctuated according to the business affairs of the appellant and FME and became more prominent when the Australian Taxation Office began investigating the appellant's affairs.
This suggests that every year for five years around the time that the appellant's personal tax return and the company's tax return were due the appellant's symptoms repeatedly worsened to such an extent that his judgment was impaired and it caused him to commit the offences. The evidence is not sufficient to enable me to conclude that the symptoms must also have reached a level of severity on the occasions that the appellant directed others in such a way as to organise for his personal expenses to be recorded, and later declared, as expenditure of the business.
Many of the stressors described in the reports also relate to the appellant's current situation.
The appellant's explanation for the offences was that he acted in a situation of concern, perhaps even despair, about the financial difficulties in his business. He now seeks to 'explain the explanation' by reference to the generalised anxiety disorder. But in my view this explanation cannot be divorced from the fact that the diagnosis was first made four years after the commission of the last offence and after the period of imprisonment had commenced. The appellant's situation had changed, dramatically so. I am not able to afford much weight to the broad, unexplained opinion in the Kelly report that the appellant's condition is not due to his 'current placement'.
While mental impairment can be an important and relevant factor in the sentencing of an offender, the court must be satisfied that the impairment made a causal contribution to the offences committed and that the contribution was material. The dramatic change in an offender's circumstances once convicted and sentenced may also have an impact on mental functioning and this would need to be taken into account.
It may be that the appellant suffered a level of anxiety in the five and a half years during which he committed the offences. However I am unable to find that, throughout the period of offending, the symptoms were suffered to such a degree as to have had a material causal nexus with the specific conduct constituting the offences listed in the indictment such as to place it in a different category of offending and, in particular, to reduce the appellant's moral culpability.
I have not been persuaded the appellant's moral culpability was reduced as a result of this mental disorder or that a different sentence should have been imposed. I believe 3 years and 6 months' imprisonment is an appropriate sentence in the circumstances. For these reasons the appeal must fail.
Conclusion
I would refuse leave to adduce the additional evidence and dismiss the appeal.
NEWNES JA: I agree with McLure P.
THE SCHEDULE
Financial Advantage Obtained
| Income Tax Year | Amount of financial advantage obtained by FME | Amount of financial advantage obtained by appellant) |
| 1999 | $45, 472.14 | $61,261.07 |
| 2000 | $40,896.91 | $55,097.46 |
| 2001 | $23,124.07 | $32,985.81 |
| 2002 | $10,306.94 | $19,908.50 |
| 2003 | $26,003.49 | $42,039.00 |
| 2004 | $44,167.54 | $71,404.20 |
| Total | $189,971.09 | $282,696.04 |
The Sentences
| Count | Offence date | Amount | Sentence | |
| 1. | 28 July 1999 | $61,261.07 | 18 months | |
| 2. | 27 July 1999 | $45,472.14 | 9 months | Concurrent |
| 3. | 6 Sept 2000 | $55,097.46 | 12 months | Concurrent |
| 4. | 6 Sept 2000 | $40,896.91 | 9 months | Concurrent |
| 5. | 14 Sept 2001 | $32,985.81 | 9 months | Concurrent |
| 6. | 17 Sept 2001 | $23,124.07 | 9 months | Concurrent |
| 7. | 6 Aug 2002 | $19,908.50 | 9 months | Concurrent |
| 8. | 6 Aug 2002 | $10,306.94 | 9 months | Concurrent |
| 9. | 14 Jan 2004 | $42,039.00 | 6 months | Cumulative |
| 10. | 14 Jan 2004 | $26,003.49 | 9 months | Concurrent |
| 11. | 17 Sept 2004 | $71,404.20 | 18 months | Cumulative |
| 12. | 16 Nov 2004 | $44,167.54 | 9 months | Concurrent |
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