Reported Decision : 167 A Crim R 295 New South Wales Court of Criminal Appeal CITATION: Adanguidi v Regina [2006] NSWCCA 404 HEARING DATE(S): 3 November 2006 JUDGMENT DATE: 15 December 2006 JUDGMENT OF: Spigelman CJ at 1; Sully J at 2; Hislop J at 3 DECISION: (1) Leave to appeal granted; (2) Appeal dismissed. CATCHWORDS: Criminal law - Sentencing - Murder - Three life sentences - Culpability - Standard of proof - Mental illness - Fresh evidence. Crimes Act 1900 - s 19A, 23A LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21, 21A, 61 Criminal Appeal Act 1912 - s 6(3) Aslett v Regina [2006] NSWCCA 360 Cheung v R (2001) 209 CLR 1 Ibbs v The Queen (1987) 163 CLR 447 Markarian v R (2005) 215 ALR 213 R v Arthurell (Supreme Court of New South Wales unreported 3 October 1997) R v Ashton (2002) 137 A Crim R 73 R v Baker (NSWCCA 20 September 1995 unreported) R v Eliasen (1991) 53 A Crim R 391 R v Engert (1995) 84 A Crim R 67 R v Fordham (1997) 98 A Crim R 359 R v Harris [2000] 50 NSWLR 409 R v Isaacs (1997) 41 NSWLR 374 R v Leonard (NSWCCA Unreported 7 December 1998) CASES CITED: R v McNaughton [2006] NSWCCA 242 R v Merritt (2004) 59 NSWLR 557 R v Munday (1981) 2 NSWLR 177 R v Mungomery (2004) 151 A Crim R 376 R v Olbrich (1999) 199 CLR 270 R v Olenik [2002] NSWCCA 90 R v Simpson (2001) 53 NSWLR 704 R v SLD [2003] 58 NSWLR 589 R v Stanbouli (2003) 141 A Crim R 531 R v Street (NSWCCA 17 December 1996 unreported) R v Twala (NSWCCA unreported 4 November 1994) R v Villa (NSWCCA unreported 13 April 2005) Ramsay v Watson (1961) 108 CLR 642 Veen v The Queen [No 2] (1987) 164 CLR 465 PARTIES: Applicant - Crespin Adanguidi Respondent - Regina FILE NUMBER(S): CCA 2006/868 COUNSEL: Applicant - Mr P. Strickland SC Respondent - Mr G. Smith SC SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2003/163 LOWER COURT JUDICIAL OFFICER: Barr J LOWER COURT DATE OF DECISION: 3 June 2005 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/868 SPIGELMAN CJ SULLY J HISLOP J 15 December 2006 Crespin ADANGUIDI v REGINA Judgment 1 SPIGELMAN CJ: I agree with Hislop J. 2 SULLY J: I agree with Hislop J. HISLOP J: 3 On 14 April 2005 a Supreme Court jury found the applicant guilty of the murder, on 1 February 2003, of Shiquin Zhu, Pin Shen and Christie Bo Shen. 4 On 3 June 2005 Barr J sentenced the applicant to life imprisonment for each murder. The sentences commenced on 1 February 2003. 5 The applicant has sought leave to appeal against the sentences. The amended grounds of appeal are: (1) His Honour erred in finding that the level of the culpability in the commission of the offences was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of sentences of imprisonment for life; (2) His Honour made certain findings of fact that was not reasonably open, namely, that: (a) There was nothing about the objective facts of the murders which suggested in any way that the applicant was suffering from any mental illness or other abnormality of mind or inability to reason calmly or control himself; (b) At the time of the murders, the applicant was not badly affected by his illness in any relevant way; (c) The evidence tendered at trial (or sentence) offered no recognisable connection, causal or otherwise, between the applicant's state of mind and his commission of the acts causing death; (d) The applicant's illness at the time he committed the offences did not affect his ability to judge right from wrong or to reason about the moral wrongness of his acts. (3) His Honour did not have regard to or adequate regard to a mitigating factor pursuant to section 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 namely, that the application was not "fully aware of the consequences of his actions" because of his mental disability or disorder. (4) The sentences were manifestly excessive. (5) The sentence material miscarried given the absence at those proceedings of fresh evidence. 6 Shiquin Zhu was the wife of Raymond Shen. Pin Shen was their son, Christie Bo Shen their daughter. The deceased persons came to Australia from China in 1995 joining Mr Shen who had come to this country in 1991. Mr Shen operated a travel agency in Sydney. The family lived in a home unit at Rockdale. 7 The applicant was born in Benin on 13 September 1977 and came to Australia in about 1998. He married in 2001. He had two children. In January 2003 he and his wife separated and thereafter he lived alone in his home unit at Maroubra. He had a conviction for stealing property as a clerk / servant in 1999. 8 The applicant first met Mr Shen in 2000 when he was working as a security guard at the home unit complex containing Mr Shen's unit. A friendship developed between the two men. 9 In January 2003 Mr Shen travelled overseas on business. On his return he was contacted by the applicant who made arrangements for Mr Shen to visit him at the applicant's unit. Mr Shen did so on the evening of 31 January 2003. His Honour was satisfied that the applicant: … issued his invitation with the intention of attacking, disabling and robbing Mr Shen and his family. In anticipation of a visit by Mr Shen, he provided himself with a loaded pistol, strong adhesive tape, strong cord, various tools, a torch, cloths and a device to enable him to see in the dark. He had a pair of rubber gloves and a bag in which to carry these things and the money he expected to steal. 10 During the course of the visit the applicant struck Mr Shen on the back of the head with the pistol causing him to fall to the floor. He then placed a cloth in Mr Shen's mouth, another around his mouth and head and, using adhesive tape, bound his head, hands and feet. The sentencing Judge's remarks on sentence continued: [8] The offender moved Mr Shen into a second bedroom and began to demand money from him. He said that a "Slovenian gang" was after him, that he needed money to pay a "Mascot cop" and that he needed to leave Australia because he had killed a pharmacist at Hurstville. None of these things was true. He accused Mr Shen of sending photographs of them to his, the offender's, wife. [9] He held Mr Shen there for hours, demanding that he make over money and other valuable things. Mr Shen told him where he could find such money as was available, including some that he carried with him and some that he kept in his car. The offender went to the car and took the money. Mr Shen was obliged to explain to the offender that he was unable there and then to sign over to him assets, property or the proceeds of bank accounts that the offender was asking for. The offender began to make threats against Mr Shen's family and Mr Shen pleaded with him not to harm his wife or children. The offender produced a knife and cut off some of Mr Shen's hair. He said that he was going to show it to his wife. [10] The offender left the room from time to time and made and received calls on his mobile telephone. He had a contract with the operator of the Ritz Cinema, Randwick to clean the premises and employees of his were there while he was holding Mr Shen captive. Some of his telephone conversations were with those employees. [11] After one such conversation the offender returned to the room where Mr Shen was and told him that the Slovenian gang were chasing him and that he had only ten minutes left. He counted down the ten minutes and as he did so he held the pistol to Mr Shen's head. He left the unit, having stolen Mr Shen's car and unit keys. As he did so he set the alarm. [12] Having left Mr Shen bound and gagged, he went to the Ritz Cinema, driving Mr Shen's car, and spoke to his employees. After that he went to Rockdale. He knew the security arrangements at the building in which the Shen unit was situated and used Mr Shen's keys to get in. It was then 2:54am. He travelled to the floor on which the unit was situated but before entering it he turned off the electric power to the unit and to adjoining units. He entered the unit taking with him the bag containing his various belongings. He put on rubber gloves and carried a torch. 11 The applicant stole money and valuable property including jewellery, computer equipment and mobile phones whilst in the unit. 12 His Honour continued in his remarks on sentence: [14] As the offender was going about his work a number of things happened. Pin Shen, who kept a tennis racket in his room, took it and approached the offender. Whether the offender was then stealing or attacking Mrs or Ms Shen or was merely an unwelcome entrant it is not possible to say. The offender, facing him, shot him through the head at close range. Pin Shen died straight away. [15] Ms Shen also was alarmed. The clothes she was wearing when she was found make it appear likely that she was in bed at the time. If she was, she got out of bed and, still in her bedroom, took her mobile phone and called triple 0. She managed to make the connection, but it was almost immediately broken. I think that the offender must have done that. He shot her through the back of the head from close range. She died, slumped over her bed. [16] The offender killed Pin Shen to prevent him from getting in the way of what he was doing. He shot Ms Shen for the same reason and in particular to prevent her from calling for help. His intent in shooting them was to kill. [17] The offender attacked Mrs Shen with the pistol, but he did not shoot her. He tortured her by pressing the tip of the barrel into her breasts and perhaps rotating it. He did so to hurt her, perhaps with the intent of making her tell him where valuable things might be found. Mrs Shen was unlikely to have told him voluntarily. He used some instrument, presumably the pistol, to cause a superficial injury to her sexual parts. There was damage to the fingers, with breaking of the finger bones, tearing of the soft tissues and dislocation of the joints. He killed her by striking her repeatedly in the face and head with a hard object. I think that that was probably the pistol. There was extensive fracturing of the bones of the face, some of them extending into the base of the skull. There was bleeding within the skull. There was brain damage. The lacerations so produced bled extensively and some blood was inhaled and some swallowed. There was bruising about the neck and fractures of the ribs. Those fractures may have been caused post mortem. [18] Shiquin Zhu died of these injuries and from inhaling blood. Her death was painful. She probably knew before she died that her children had been murdered. [19] The offender left the unit shortly after 4am, taking with him the money and other valuable things he had stolen, together with the pistol, the gloves, the infrared device and other things in a sports bag. He also had a backpack and a computer in a bag. He drove to the unit of a woman with whom he had a casual sexual relationship, got her out of bed and told her a false story about his wife's having just left him. He left with her the bag containing the things I have mentioned, the backpack and the bag containing the computer. He made sure that she stowed them out of sight. He returned to his car and drove towards his own unit intending, no doubt, to deal in some way with Mr Shen. 13 In the meantime Mr Shen had managed to free himself from his bonds and had contacted police. The police went to the unit and found the bodies of the deceased persons. The applicant was arrested as he arrived at his unit block. 14 His Honour described the murders as horrific and of great heinousness. He observed the totality of the offender's criminality encompassed the three killings, two carried out with the intent to kill and one after torture, the assault, robbery and restraint of Mr Shen and the robbery of his family. The attack on Mr Shen, his restraint and the robberies of him and his family were carefully planned. His Honour did not think that when the applicant left Mr Shen he intended to kill the family. He was bent on robbery. However he had no intention of failing in his endeavour and took with him a pistol with which to subdue and kill if necessary. His Honour was satisfied that the level of the offender's culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of the maximum sentence for each offence. 15 Section 19A of the Crimes Act provides: (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) … (5) … (6) … 16 Section 21(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Act") provides: (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. 17 Section 61 of the Act provides: (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. (3) Nothing in subsection (1) affects section 21(1). 18 At common law the imposition of a maximum penalty for any offence is a sentencing option reserved for cases which can properly be characterised as falling within the worst category of cases for which that penalty is prescribed – Ibbs v The Queen (1987) 163 CLR 447 at 451-452. 19 In R v Twala (NSWCCA unreported 4 November 1994) Badgery-Parker J, with whom Carruthers and Finlay JJ agreed, said: … in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed). 20 In R v Stanbouli (2003) 141 A Crim R 531 at 553 [117] Spigelman CJ questioned whether "… one needs to go as far as Badgery-Parker J did in describing a worst case" but found it unnecessary to express a concluded opinion on that question. 21 Heinousness has been "variously described as meaning atrocious, detestable, hateful, odious, greatly reprehensible and extremely wicked"– R v Harris [2000] 50 NSWLR 409 at 423 [85] quoting from R v Arthurell (Supreme Court of New South Wales unreported 3 October 1997 at 11). 22 In Veen v The Queen [No 2] (1987) 164 CLR 465 at 478 the High Court held: …the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category. 23 The interrelationship between s 61(1) of the Act and the common law was considered in R v Harris (2000) 50 NSWLR 409. In that case, which concerned the application of life sentences in respect of three murders committed over a period of a month, Wood CJ at CL (as he then was) (with whom Giles JA and James J agreed) accepted that two avenues for a life sentence continued to exist after the enactment of s 61 of the Act, one arising at common law and the other arising under s 61. 24 His Honour further observed: [87] It is not at all clear to me that the assessment whether a case falls within the "worst case category" at common law is any different from that postulated under s 61(1). The decision in Veen v The Queen [No 2] , permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is longstanding precedent for regard to be had to each of the matters specified in s 61(1) when considering sentence. [88] I doubt that [s 61(1) of the Act] adds anything to the common law. [89] I am not persuaded that there is authority, or good reason, for an assumption [that s 61(1) of the Act is narrower than the common law]. [90] That is not, however to say that the common law has been abrogated, or that those decisions which gave content to the meaning of the expression "worst case" are no longer of relevance. It may be that future development of the common law will embrace the situation calling for a life sentence that would not be justified under s 61(1) of the Act. 25 In R v Baker (NSWCCA 20 September 1995 unreported) Gleeson CJ held: One of the factors which, in a given case, might justify assigning a case to the worst category of cases is the number of murders committed by an offender. 26 In R v Street (NSWCCA 17 December 1996 unreported) this Court upheld life sentences in respect of two murders committed some twelve weeks apart even though each murder (standing alone) would not have justified a life sentence. This case was determined prior to the enactment of s 61(1) of the Act or its predecessor. 27 In Harris Wood CJ at CL (as he then was) concluded: So far as the present case is concerned, it appears to me to have been permissible for Bell J, without having to depend upon the common law, to have had regard to the other murders when assessing the level of culpability of each in the application of s 61(1) of the [Act] and in particular, whether the case was one calling for a life sentence in terms of s 61(1), and then whether, in the exercise of her discretion under s 21(1) a lesser sentence of imprisonment for a specified term could be imposed. [95] Particularly was this so in the context of a case where the three killings occurred in quick proximity, and where the last two were similarly motivated and encouraged by the success of the respondent in carrying out and initially escaping both suspicion and detection for the first of those offences. 28 In R v Villa (NSWCCA unreported 13 April 2005) Dunford J (with whom Simpson and Hidden JJ agreed) held: [93] The common law permitted a number of murders to be taken into account when considering whether a life sentence was warranted on the basis of totality: R v Street . A similar approach it has been held permissible under s 61(1) of [the Act]: R v Harris . Unlike those two cases where the separate killings constituted separate episodes of criminality, here the two murders and the three attempted murders were all parts of the one episode. Although Pearce was not referred to in Harris , I do not consider that it should lead to any qualification of what was said in Harris . The number of offences, whether murders or attempted murders, were relevant when considered together as demonstrating the level of culpability involved in each of the offences separately, and the community interest in retribution, punishment, community protection and deterrence, criteria specifically referred to in s 61. In any event his Honour found that "the overall level of culpability … in respect of each of these murders falls clearly within the statutory criteria …" 29 In R v McNaughton [2006] NSWCCA 242 Spigelman CJ (with whom the other members of the five person Bench agreed) held: [24] Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen No 2 and in Baumer as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. 30 In Aslett v Regina [2006] NSWCCA 360 this Court was concerned with an application for leave to appeal against a sentence of life imprisonment imposed by Wood CJ at CL (as he then was). His Honour had concluded that, standing alone, the murder would not have qualified for a life sentence in accordance with s 61(1) of the Act but that when considered in the light of the fact that it followed the very serious offences of armed robbery and aggravated sexual assault which had been dealt with pursuant to other indictments before the sentencing Judge and it also followed quite appalling offences in respect of which the prisoner had been sentenced in the District Court he was left with no alternative other than to impose a maximum sentence of imprisonment for life. 31 In overturning the sentence of life imprisonment imposed in that case McClellan CJ at CL (with whom James and Hoeben JJ agreed) said: [25] To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton. 32 In my opinion the difficulty identified by McClellan CJ at CL does not arise in a case such as the present where the three murders occurred at essentially the same time and place and were all part of the one episode of criminal conduct – Villa at [93]. These circumstances were capable of informing the objective criminality of each offence c/f Aslett at [25]. In these circumstances the Court may have regard to the whole of the conduct in determining the level of culpability involved in the commission of each offence. The imposition of a life sentence for each murder may provide a just and appropriate measure of the total criminality involved. Such a case is not one of the punishment being increased by reason of previous offending. 33 The applicant has submitted that his Honour erred in imposing life sentences as: (a) the necessary degree of heinousness was absent from each of the killings; (b) the fact that more then one person was murdered does not place the offences in the worst category of case; (c) although there were three deaths there was only one episode of criminal conduct; (d) the applicant did not set out to kill anybody but only to rob them; (e) the applicant had no relevant prior criminal record; (f) by comparison to other cases of life sentences; (g) due to the abnormal state of mind of the applicant at the time of the offences. 34 I do not accept submissions (a) – (f) for the following reasons. (i) The criminal enterprise leading up to the murders was premeditated. The applicant entered the home in the early hours of the morning armed with a loaded firearm. His motivation was greed. He was prepared to kill innocent persons to achieve his end. (ii) Pin Shen and Christie Bo Shen were shot dead in cold blood in their own home. Shiquin Zhu was tortured before being battered to death in her own home. The motive for each murder was the applicant's greed. Even if each murder (standing alone) would not justify the imposition of the maximum penalty, it was open to his Honour to conclude that the total criminality involved was sufficient to warrant the imposition of a life sentence for each. In any event I would regard the murder of Shiquin Zhu as sufficiently heinous in itself to be categorised as a worst case. (iii) The absence of relevant criminal antecedents does not render an offender immune to the maximum penalty – see, for example, R v Leonard (NSWCCA Unreported 7 December 1998). It is consistent with principle that: … in some cases, the offence or offences for which an offender stands for sentence are so heinous, that the subjective circumstances should be disregarded either wholly or substantially – Harris at [103]. This is such a case. (iv) It is an incorrect approach to sentencing to compare the facts of the case at hand with other cases in order to determine whether it does or does not fall within the worst case category, deserving of the maximum sentence – each case must be determined upon its own facts – R v Merritt (2004) 59 NSWLR 557 at 575 [65] and [67]. As Spigelman CJ observed in R v Mungomery (2004) 151 A Crim R 376 at 378 [5]: Prior sentences are in no way precedents that need to be distinguished. They may be relevant as a guide and issues of consistency are of significance. Nevertheless, the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. 35 In Markarian v R (2005) 215 ALR 213 the High Court held at [27]: The judgment [on sentence] is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 36 In my opinion it was open to his Honour, unless he was in error in relation to the applicant's mental state at the time of the murders (which is discussed below), to conclude that the murders were in the worst case category, that s 61(1) of the Act applied and to impose the maximum penalty for each offence. 37 At his trial there was no dispute the applicant had killed the three victims. The defence case was either: (a) He was not guilty by reason of a mental illness; or (b) He was not guilty of murder but guilty of manslaughter on the ground of a substantial abnormality of mind ( Crimes Act s 23A). 38 The jury rejected the defence case. However his Honour held that a finding that the applicant was mentally ill when he killed the deceased would not of itself be inconsistent with the verdicts nor would a finding that the applicant's capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. 39 Accordingly it was submitted by the applicant that at the time of the murders: (a) he had an abnormal state of mind; and (b) the abnormal state of mind had some effect upon his ability to judge right from wrong and on his capacity to reason so that his ability to consider the moral wrongness of his acts would have been compromised. 40 It is the duty of the sentencing judge to determine the facts relevant to sentencing, including the question of the degree of an offender's culpability (Cheung v R (2001) 209 CLR 1 at 9 [5] and 19 [38]). The primary constraint on the sentencing judge, when sentencing after verdict, is that the view of the facts adopted for the purposes of sentencing must be consistent with the jury's verdict (R v Isaacs (1997) 41 NSWLR 374 at 378). 41 His Honour found that the applicant at the time of the murders was suffering the prodromal phase of a psychotic illness, which illness continued to develop after the murders. He accepted the evidence of the applicant's wife that there were noticeable changes in the applicant's behaviour in the weeks immediately before the murders. He accepted it may well be true, as reported, that the offender suffered episodes of mania or depression as a child and as a young man but found however, there was no evidence to show how such events may make it more likely that his mental state was affected in any relevant way at the time of the murders. He accepted that the offender's contemplation of what he had done to his victims and the sights that he had seen and the sounds he had heard probably accelerated the development of his mental deterioration. 42 His Honour found: [72] At the time of the murders, however, although the offender was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the offender's state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and the moral wrongness of what he was doing. I do not think that the offender's capacity to understand events or judge whether his actions were right or wrong in a moral sense or to control himself were impaired at all. I do not think that his capacity to reason about what he was doing was impaired. His illness, his belief that he was being watched and the other effects that it was having upon him, were incidental. No doubt they affected his life and relationships, but they did not mitigate his criminality any more than any physical illness would have done. 43 In R v Olenik [2002] NSWCCA 90 at [36] it was held: On an application for leave to appeal against sentence, this court is bound by the findings of fact made by the trial judge, unless it is not open to the trial judge on the evidence before him to make those findings. 44 The applicant submitted that it was not open, on the evidence, for his Honour to make the findings which he did as to the impact of the developing illness upon the applicant at the time of the murders. He submitted that his Honour's rejection of his submissions, which were based upon the evidence of Dr Nielssen, was unreasonable. It was contended that Dr Nielssen's opinion was soundly based and neither contradicted by, nor inconsistent with, any evidence adduced at the trial or on sentence and indeed supported by the lay evidence. The evidence of Dr Nielssen was all one way and his Honour did not provide any valid reason for rejecting it. 45 Dr Nielssen, a consultant psychiatrist, saw the applicant in June and July 2004. His Honour summarised Dr Nielssen's evidence as follows: [54] Dr Neilssen was not prepared to accept that the offender was mentally ill before and at the time of the offences. The only evidence to support the proposition, he said, was the offender's own account of the onset of symptoms. He said that the offender was suggestible about psychotic symptoms. He thought it a possibility that the offender was malingering at the time of the interviews. He noted that the offender did not give any spontaneous account of the offences or any delusional explanation about them to him or apparently any other treating doctor, and thought that that spoke against the probability of mental illness. [55] Dr Neilssen thought that the offender knew that what he was doing was legally wrong, as evidenced by his attempts to conceal his involvement. He thought, however, that there was a strong possibility that he had a schizophrenic illness. [56] He was of the view ultimately that the offender did not have the defence of mental illness but would have favoured the defence of substantial impairment by abnormality of mind. So he accepted that the offender had an abnormality of mind at the time of the offences. In this respect he drew upon the opinion of Dr Ellis that signs of mental illness were present a short time after the killings. He assumed that those features were present at the time of the offences as well. He thought, on the balance of probabilities, that the offender was psychotic at the time of the offences. So his perception of events, his concentration, his reasoning abilities and his ability to judge right from wrong were disturbed. He thought, on the balance of probabilities, that the offender had a chronic psychiatric illness, most probably schizophrenia, in 2003. He thought that the changes in the offender's behaviour before the killings could be evidence of the prodromal phase of a mental illness. [57] An important feature of the evidence of Dr Neilssen was that before he had access to the medical records of the psychiatric registrar, who recorded no psychotic symptoms, he thought that it was probable that the offender had a psychotic illness on 1 February 2003. After he saw the records he changed his opinion and considered only that it was possible. As the offender was able to form purposeful action, Dr Neilssen thought that his reasoning in other respects was not greatly affected. He acknowledged, however, that there may have been some effect upon his moral reasoning ability. 46 In Ramsay v Watson (1961) 108 CLR 642 at 645 the High Court held: That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves "Are we on the whole of the evidence satisfied [to the appropriate standard] of the fact?". 47 His Honour had regard to Dr Nielssen's opinion and to the lay evidence. He concluded: There was evidence to support that [the applicant's] submission, notably from Dr Neilssen. However, I am unable to accept these submissions. While I am satisfied that the offender was suffering from a developing illness, I am not satisfied that his illness affected his ability to judge right from wrong or to reason about the moral wrongness of his acts. 48 The primary findings which underlay that conclusion were: [64] The intricate detail of his preparation and precaution shows that he was acutely aware of the legal wrongness of what he was doing and that he had the ability to reason and plan in great detail. Nothing about the objective facts of what the offender did suggests in any way that he was suffering from any mental illness or other abnormality of mind or inability to reason calmly or control himself. The degree of control he exercised over himself during the whole of the evening is quite remarkable. He was quiet and watchful when appropriate. He was ruthless and violent when it suited his purposes. [65] and [78] It is difficult to draw any conclusions from what the offender himself has said from time to time. He has given widely differing versions of the facts to different people on different occasions, and I think that it would be quite unreasonable to suggest that those differences are psychotic in origin. He gave Dr Westmore a version of the killings which was probably true or almost true, yet denied attacking Mr Shen or knowing what was in the bag. On another occasion he said that he had arrived at the Shen apartment and found the three deceased dead. On another he denied any knowledge of the events. His first recorded statement was to the effect that he had been set up. I am satisfied that he feigned unconsciousness at the police station. He has been ready to tell lies when it suits him. … The offender's initial explanation, that he had been set up, was a lie. His assertion that Mr Shen wanted him to attack his family was a lie. I am also satisfied that his claim that the voices told him to help Mr Shen was a lie. … [66] and [70] I do not accept that the offender killed the Shen family because he believed that voices had told him to do so or because he believed that they had told him to help Mr Shen. I do not accept that he believed that Mr Shen had asked him to do so. I do not accept that the offender believed that Mr Shen wanted him to do so. The evidence for the offender's belief that voices were speaking to him at the time of the murders is weak. He never told anyone until after the murders that he had been hearing voices. He told Dr Westmore that he had told his wife that he was hearing voices and that she had told him to see a doctor. His wife, on the other hand, did not remember such a thing. She would not have forgotten it if it had happened. … It is significant, I think, that the offender told nobody about hearing voices until after the murders. It is also significant that he told nobody about the voices on his admission to hospital. He was undoubtedly trying to attract sympathy on that occasion and I think that if he had been hearing voices he would not have failed to tell the emergency registrar, the psychiatric registrar and the neurosurgeon. Yet it was not until the following day that he told anybody that he had been hearing voices. 49 These findings were made in circumstances where the applicant's early post-murder history was recorded by his Honour as follows: [24] On 2 February the offender was found, collapsed and unresponsive, in his cell at the police station. Ambulance officers attended and examined him. They assessed his Glasgow Coma Score at seven. The Glasgow Coma Score is a method of assessing the level of consciousness of a patient. The maximum possible score is fifteen and the minimum three. The patient is assessed in various ways, including by apparent reaction to light and painful stimulus and according to whether the patient appears to know who and where he is and what day or time it is. It is possible to feign reduced consciousness by appearing to be disoriented and by resisting reaction to stimuli. [25] The ambulance officers took the offender to hospital. An emergency registrar saw him there. The offender would not say where he was from or what his occupation was. He admitted having taken soap and agreed when asked that he had intended in so doing to kill himself. He denied killing anyone and said that he had been set up. He was fully conscious. The emergency registrar formed the view that he was trying to fake unconsciousness. [26] The offender was next examined by Dr O'Neill, a neurosurgeon. Dr O'Neill could find no clinical explanation for any loss of consciousness. The offender was next examined by Dr Atherton, a psychiatric registrar. The offender repeatedly denied killing the deceased. He denied any unusual experience, persecution or change in life. Dr Atherton found no sign of psychosis. [27] The offender was kept in hospital for observation. Dr McDonald, psychiatrist, saw him on 3 February. He noted that he appeared fearful, highly aroused, hypervigilant, suspicious, paranoid and frequently unable to answer questions in an appropriately oriented or coherent fashion. He appeared distressed and dysphoric and his level of distress fluctuated during the course of their brief interview. 50 His Honour noted that Dr Reznik, the consultant psychiatrist in charge of the applicant's care for about two years, towards the end of the time of treatment, had doubts about the genuineness of the applicant and made a note on 8 June 2004 querying whether he was malingering. On 30 November 2004 he thought the offender might have been faking symptoms. His Honour also referred to the evidence of other doctors who treated the applicant and Dr Westmore, another qualified psychiatrist. 51 In my opinion his Honour's findings and conclusions on this issue were open to him on the evidence. He was not bound to accept Dr Nielssen's opinion and no error has been demonstrated by him not doing so. 52 His Honour in his judgment concluded: I am satisfied that the level of the offender's culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence for each offence. 53 In R v Merritt (2004) 59 NSWLR 557 this Court held at [35]: … the burden of proving that a case falls within s 61(1) of the Act rests on the Crown, and that, in accordance with the decision in R v Olbrich (1999) 199 CLR 270, the standard of such proof is beyond reasonable doubt. 54 The applicant submitted that his Honour erred in that he did not determine the effect of the applicant's mental condition by applying the standard of proof beyond a reasonable doubt. 55 It does not follow from the principle stated in Merritt that each of the factors which ultimately lead to the conclusion that s 61(1) of the Act is applicable must be determined beyond a reasonable doubt. – R v SLD [2003] 58 NSWLR 589 56 In any event the issue as to the effect of the mental condition on the applicant was an issue raised by the applicant. The onus therefore rested upon the applicant to establish that issue to the satisfaction of the Judge on the balance of probabilities. As the High Court held in R v Olbrich (1999) 199 CLR 270 at 280 [24]: ... we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. Accordingly his Honour was not required to exclude the existence or effect of an abnormal mental condition of the applicant beyond a reasonable doubt. 57 His Honour accepted the applicant had a psychotic condition subsequent to the murders. In some cases the existence of a mental disability or disorder, even though not contributory to the offence, may be a mitigating factor on sentence – see R v Engert (1995) 84 A Crim R 67. 58 However the criminality inherent in these offences, it having been found the offences were not the result of or contributed to by a mental or psychiatric condition, is of such a degree as not to permit of any mitigation of penalty on this basis. – see Engert at 68.7, Harris at [103] – [105]. 59 At the hearing of the application the applicant sought to place additional materials before the Court as evidence to be taken into account should the Court come to re-sentence and also as evidence to be taken into account in determining if the sentences imposed were appropriate. The Crown did not object to the evidence being received on the first basis but objected to its use for any other purpose. The evidence was received subject to objection. 60 In R v Fordham (1997) 98 A Crim R 359 at 377 Howie J (with whom Hunt CJ at CL and Smart J agreed) said: Absent sentencing error which requires the Court to resentence an appellant, this Court should, in my view, resist attempts to place before it material which was not before the sentencing judge … Generally before fresh [i.e. material which could not with reasonable care have been discovered previously] or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. However, fresh evidence has been received by this Court where a miscarriage of justice may have occured because there has been incompetent legal representation at the hearing before the sentencing court or where there has been negligence or carelessness in the presentation of the defence. It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing. There is also a general power in the court to receive fresh or new evidence where the interests of justice require that course. 61 In R v Munday (1981) 2 NSWLR 177 at 178 it was held: It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court. 62 In R v Ashton (2002) 137 A Crim R 73 at 76 [10] it was stated: There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. It must be stressed however that this is dependent upon there being special facts and circumstances otherwise the general rule in R v Munday will prevail. 63 The evidence sought to be led other than on resentence comprised: (a) A report of Dr Nielssen dated 29 October 2006 which concluded: It now appears he has a chronic schizophrenic illness that is largely in remission as a result of consistent treatment. Mr Adanguidi's brother gave evidence of an episode of disturbance in communication and behaviour resulting in an admission to a psychiatric hospital in Benin when Mr Adanguidi was 13 years old. Ms Richards gave evidence of a change in Mr Adanguidi's mood and behaviour in the period prior to the offences. This additional information, which was not available to me at the time I gave evidence in his trial, is consistent with the view that Mr Adanguidi had a pre-existing mental illness and was in the early phase of a further episode of illness in the month before the offence. My opinion does not rely on the report of Dr Agoncan, although the report is consistent with the evidence given by Mr Aanguidi's brother. With regards future dangerousness, as the offences were committed at a time when Mr Adanguidi was probably in an abnormal state of mind arising from the early phase of a recurrence of psychotic illness, it follows that his risk of future offences could be reduced by consistent treatment for what is now a chronic mental illness with antipsychotic medication … Mr Adanguidi's intellectual performance was thought to be unimpaired at the recent interview. However, there was evidence of negative symptoms in the blunting of his emotional range and the poverty of his speech that was consistent with the emergence of negative symptoms of chronic schizophrenia. (b) A report of Dr Agoncan dated 2 June 2006. This confirms the applicant's brother's evidence that the applicant had been taken to hospital in Benin in 1991 suffering from a mental condition and lists the symptoms with which the applicant presented at that time. (c) The gaol medical file for the period 3 June 2005 to 12 September 2006. 64 I would reject the application to place the additional materials before the Court for any purpose other than as evidence to be taken into account should the Court come to re-sentence. I do so for the following reasons: (a) Dr Neilssen's report does not add significantly to the evidence which was before the sentencing Judge. His additional comments do not impact upon the question of the applicant's capacity at the time of the murders. He had read the statements of Ms Richards prior to giving evidence previously, had been given a summary of her evidence at the trial and was asked to assume her evidence by applicant's counsel at the trial; (b) The material contained in the report of Dr Agoncan does not impact upon his Honour's or Dr Neilssen's conclusion as to the applicant's condition at the time of the murders; (c) The gaol medical file relates to matters which postdate the sentence and is not admissible on the principle in R v Munday (d) Senior counsel for the applicant accepted that if the Court rejected Dr Neilssen's evidence then the remaining evidence sought to be tendered should also be rejected. 65 Had the further evidence been admitted the question which would have been posed for this Court was whether the additional evidence: … should lead to the imposition of a sentence different from that imposed by the judge – R v Eliasen (1991) 53 A Crim R 391 at 394. 66 In determining the admissibility of the evidence it was necessary for me to peruse it. I have concluded that had the evidence been admitted it would not have " lead to the imposition of a sentence different from that imposed by the Judge." 67 This is a Court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act 1912. The Court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at 720 – 721 [79]. 68 In this case, in my opinion, error has not been established nor has it been established that some other sentences, less severe, are warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. Orders 69 I propose the following orders: (1) Leave to appeal granted; (2) Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.