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Wednesday, 19 August 2009

Expert evidence on sentence

Most people who follow local news will have heard of the terrible assault on a Fitzroy man by his housemate in August of last year.



The victim suffered burns to 12 per cent of his body when boiling oil was poured over him whilst he slept. His assailant pled guilty to a change of intentionally causing serious injury in the County Court, and last Thursday was sentenced to six years imprisonment with a minimum of four to be served.



The sentencing remarks of Weinberg J are set out in R v Wahani [2009] VSC 319. The case provides a practical application of the principles of Verdins' case discussed here last week. The plea of mitigation relied heavily on an assertion that the accused was suffering from a psychotic episode resulting from a rare reaction to prescription medication. The bizarre conduct of the offending (said to be provoked by the victim getting the accused's takeaway order wrong) would seem to lend weight to the claim.



A clinical psychologist by the name of King assessed the accused and subjected him to a battery of psychological tests. He concluded that the accused had been suffering from a drug-induced psychosis at the time of the incident. Two experts were also called for the prosecution; a consultant psychiatrist named Sullivan and the accused's treating physician, Aboltins.



27 Dr King presented as an honest and obviously highly qualified witness. At the same time, he freely acknowledged that both Dr Sullivan and Dr Aboltins were much better qualified than he to comment upon the effect, if any, that the medication you had been taking had had upon you. He knew nothing of that medication apart from what he had read through his internet search.



28 The literature search that Dr King conducted ranged over the period 1963 to 2008. It spoke of Ethambutol-induced psychosis as a recognised condition, but one which was extremely rare. Much the same was said about Rifampicin and Pyrazinamide. The former was said to have occasional side-effects involving cognitive impairment, sometimes culminating in depression.



29 Dr King again acknowledged that no more than a few cases involving actual drug-induced psychosis stemming from the use of these drugs had been reported in the literature. He conceded that such an outcome would be uncommon, but would not exclude the possibility that it had occurred in your case.



30 On the question whether you were suffering from drug-induced psychosis when you committed this offence, I prefer the opinions of Dr Sullivan and Dr Aboltins to that of Dr King. They are the true experts in this area. Dr King is not.



31 Dr Aboltins, a specialist in the very treatment that you were receiving, was your treating doctor over a number of months in the period leading up to this offence. He saw no sign of any psychosis, or other mental disturbance, resulting from your use of these drugs. Even allowing for your counsel’s submission that cultural factors may have caused you to refrain from drawing these matters to Dr Albotins’ attention, I find no basis for the submission that the medication that you were taking contributed in any way towards your actions.



32 As regards Dr King’s assessment of you as being mentally impaired by reason of some neurological problem, resulting in a deficiency in your capacity for spatial alignment, and your ability to recall strings of numbers, it seems to me that neither condition, even assuming that it exists, has any causal connection with what you did on the night in question. Yours was an act of extraordinary violence, brought about by your feelings of anger and resentment towards your victim. It had nothing to do with any lack of capacity to visualise spatially, or your inability to remember sequences of numbers.



33 It follows that I reject the submission that your moral culpability for your actions should be regarded as having been reduced by reason of mental impairment, whether through your use of medication, or through neurological difficulties that you may have had. I am not persuaded that either of the two conditions that Dr King diagnosed had anything to do with your mental state at the time of your offending, or in the lead-up to it. Nor, I should add, do I believe that either condition is likely to affect you in the future in such a way as to call for some amelioration of your penalty. In other words, this is not a case to which R v Verdins has any application.




The case also demonstrates that even a professional and relatively confident expert opinion may be rejected by a sentencing court, where contrary evidence exists. The accused must satisfy the sentencing court on the balance of probabilities of facts relied on in mitigation: R v Storey [1998] VR 359, adopted by the High Court in R v Olbrich (1999) 199 CLR 270.

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