Da-Pra v R; R v Da-Pra

Judgment

1. [1]

   EMMETT JA: On 21 May 2012, after an eight-day trial before R S Hulme J and a jury, Mr Renzo Da-Pra was found guilty of: All three offences were committed on Friday, 18 December 2009. There are two appeals. Mr Da-Pra appeals against his conviction, while the Crown appeals against the sentence imposed. I shall refer to Mr Da-Pra as the appellant.

2. [2]

   The essential issue at the trial was whether the defences of mental illness or substantial impairment were available in relation to any or all of the three offences. The defence of mental illness, or insanity, is a complete defence, while the defence of substantial impairment is a partial defence that reduces murder to manslaughter. The jury, in convicting the appellant of the three offences, found that the appellant was not entitled to the mental illness defence in relation to any of the three offences. The appellant had been charged with the murder of his father. The jury found him guilty of manslaughter as an alternative to murder on the basis of substantial impairment. The jury rejected the substantial impairment defence in relation to the offence involving EW.

3. [3]

   By notice of appeal filed on 28 June 2013, the appellant appeals from the convictions on three grounds. The first ground is that RS Hulme J erred in failing to direct the jury, in relation to the count involving Gervasio Da-Pra, that they must not reject unanimous medical evidence in the absence of other evidence displacing or throwing doubt upon it. The appellant says that the medical evidence in relation to the offence involving his father was unanimous that the defence of mental illness was established.

4. [4]

   The second ground is that all three verdicts were unreasonable or insupportable, having regard to the evidence. The appellant contends that the jury should have returned special verdicts that he was not guilty by reason of mental illness. That would have triggered s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Mental Health Act), empowering the Court to order that the appellant be detained in such place and in such manner as the Court thinks fit until released by due process of law, or such other order as the Court considers appropriate.

5. [5]

   Finally, the appellant contends that this Court should exercise the power conferred by s 7(4) of the Criminal Appeal Act 1912 (NSW) (the Appeal Act). Under s 7(4), if on an appeal it appears to the Court that although the appellant committed the act charged, the appellant was mentally ill so as not to be responsible according to law for the appellant's action at the time when the act was done, the Court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order as the Court considers appropriate.

6. [6]

   The language of s 7(4) of the Appeal Act and s 39(1) of the Mental Health Act are similar. There is therefore some overlap between the appellant's contention that the verdicts were unreasonable and his contention that this Court should exercise the power conferred by s 7(4). If the Court were disposed to exercise that power, the other grounds of appeal would fall away.

7. [7]

   On 4 June 2012, R S Hulme J sentenced the appellant to a total effective term of imprisonment of 20 years from 20 December 2009, expiring on 19 December 2029, with an aggregate non-parole period of 15 years. The appellant will be eligible for release on parole on 19 December 2024. By notice of appeal filed on 15 June 2012, the Crown appeals under s 5D of the Appeal Act against the sentences imposed by R S Hulme J. In essence, the Crown contends that the sentences imposed in relation to the offences involving EW and VW were manifestly inadequate. The Crown's sentence appeal in relation to a conviction would fall away if the Court were disposed to exercise the power conferred by s 7(4) of the Appeal Act in relation to that conviction.

The Conviction Appeal

1. [8]

   In the light of the contention that the Court should exercise the power conferred by s 7(4), it will be necessary to consider the psychiatric evidence in some detail. Before considering the psychiatric evidence, it is desirable to state the relevant legal principles, about which there is no dispute, and say something about the facts that gave rise to the charges against the appellant.

Legal Principles

1. [9]

   Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, formerly known as insanity, it must be proved on the balance of probabilities that when committing the acts alleged to constitute the offence, the accused was labouring under such a defect of reason, as a result of a disease of the mind, as not to know the nature and quality of his acts or, if he did know it, that he did not know that what he was doing was wrong. A person does not know that what he is doing is wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some modest degree of calmness in relation to the moral quality of what he is doing (R v Porter [1933] HCA 1; 55 CLR 182 at 189-190).

2. [10]

   The law requires that, at the relevant time, the state of mind of an accused must have been one of disease, disorder, or disturbance arising from some medical condition. That condition must result in the function of the reason, memory or understanding of the accused being thrown into a state of derangement or disorder of the capacity to reason such as would prevent the accused from knowing what he was doing, in that he did not know the physical nature or quality of his acts, or from knowing that those acts were wrong according to the ordinary standards of reasonable people in the community (R v Pratt [2009] NSWSC 1108 at [19]-[21]).

3. [11]

   It is possible for an accused to be suffering from a disease of the mind but still know that what he was doing in committing an offence was wrong, such that he will be legally responsible for it. In these proceedings, it was common ground, both at trial and on appeal, that at the time of the offences the appellant suffered from schizophrenia. It was also common ground, at trial and on appeal, that the appellant knew the nature and quality of his acts when he committed the three offences. Thus, the central issue at trial and on appeal was whether at the time of the offences the appellant had a defect of reason in the legal sense, such that he should not be held responsible for committing the three offences because he did not know or was unable to realise that what he was doing in committing the offences was wrong.

4. [12]

   Although medical evidence is not essential to prove the defence of mental illness, it is very much the practice that expert medical opinion evidence is adduced on that issue in criminal courts in New South Wales (R v Rodriguez [2010] NSWSC 198 at [45]). While juries are not bound to accept and to act upon such evidence, they are not entitled to disregard such evidence capriciously. However, it is open to a jury to reject unanimous medical evidence where other evidence casts doubt upon it. Where the expert opinion is not challenged and no other evidence casts doubt upon it, the trial judge should direct the jury that they should not reject it (Taylor v R (1978) 45 FLR 343; 22 ALR 599 at 608). However, where the factual basis for the expert opinion evidence is incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not required (R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep)).

The Facts

1. [13]

   The appellant had been in a motorcycle or "bikie" club between the ages of 21 and 29. At the age of 27, he was bashed by a rival gang, who threatened to harm him if they ever saw him again. For some time, he had no fixed place of abode and travelled between New South Wales and Queensland, staying with friends and family. At the time of the offences, the appellant was 45 years old. His parents lived at Wetherill Park. VW, then 77 years old, and her granddaughter, EW, then 12 years old, lived nearby.

2. [14]

   On the afternoon of Thursday 17 December 2009, the appellant went to his parents' house and told them about his concerns that unknown people were out to harm them. He had had delusions for some time involving a belief that he and his family were being pursued by members of the bikie group with which he had been associated, including "Boris", the president of the bikie group.

3. [15]

   The appellant stayed the night of 17 December 2009 at his brother's house. At about 7.30am on the next morning, Friday 18 December 2009, he drove to his parents' house at Wetherill Park. His father was at home alone. His mother had gone out shopping. At some point, he attacked his father in the garage. The appellant knocked his father to the ground and inflicted forceful blows to his neck and head, either with a weapon or by unarmed physical force. Gervasio Da-Pra died as a direct result of blunt force neck injuries. Other significant injuries included bruising to his face, fractures to two bones at the base of his nose, a fracture to the front of the sixth rib and a loosening of the joint between the ribs and the sternum.

4. [16]

   After killing his father, the appellant placed his father's body in the boot of his father's car and drove it to the nearby Stocklands Mall shopping centre (the shopping centre). He parked the car in the car park, locked it, and returned to his parents' house.

5. [17]

   There was evidence that a computer hard drive was missing from a table in the garage of his parents' house. There was also evidence of damage to a security screen door at that house. The Crown case was that the appellant took the hard drive and damaged the door to create the appearance that his parents' house had been broken into and that property had been stolen.

6. [18]

   Sometime after 12.15pm on 18 December 2009, the appellant went to the Ws' house (the W residence), near his parents' house. He was armed with a large hunting knife. VW and EW were inside the house. The appellant knocked on the front door and spoke to VW. He told her that his car had broken down and that he wanted to phone his father. VW felt uneasy and did not want to let him into the house as he looked nervous and agitated. Instead, she offered him the use of her mobile phone. However, the appellant pushed his way inside the house, forcing VW back from the front door into the kitchen. He grabbed her by the arm as she struggled and struck her a number of times on her face with his hands and fists. She lost consciousness and fell to the ground. The appellant then cut her throat with the hunting knife, causing wounds to her throat and severing her trachea. Her larynx and anterior jugular veins were completely transected and her left internal jugular vein and the vasavesorum of the left carotid artery were partially transected.

7. [19]

   While VW was being punched, EW was standing next to the dining table in the kitchen area. The appellant then attacked EW, who suffered extensive bruising to her lips and chin that was unlikely to have been caused by a single blow. She suffered a fracture to her skull and other bruising in that area. That could have had a number of causes, including falling to the floor. She also suffered patterned bruising to her upper chest. The appellant then sliced EW's throat twice, causing lacerations that killed her almost instantly. Her death was a direct result of the injuries to her neck. One cut extended through the back of her mouth to her spine. The wound included four shallow "tails" into the adjacent skin, suggesting a sawing motion of the implement that caused the injuries. Blood spatter indicated that EW was supine at the time her throat was cut.

8. [20]

   After the attack on EW and VW, the appellant went upstairs and disarranged VW's bedroom and substantially ransacked the house. He also damaged the outside window screens and the phone connection in the dining room. He then left the house, leaving EW dead and VW unconscious and bleeding heavily from the throat.

9. [21]

   Telephone records indicated that the attack occurred before 1.30pm, since VW was eventually able to telephone the emergency number and ambulance officers arrived at the house shortly after 1.30pm. They found EW dead on the floor in the family room near the kitchen and VW in a side doorway between the entrance hall and the lounge room. VW was admitted to the intensive care unit of Westmead Hospital suffering a fractured eye socket, a fractured jaw, a severed trachea and slash wounds to her throat.

10. [22]

    After leaving the W residence, the appellant returned to his brother's house and spoke about people being after him. The appellant's sister-in-law, Mrs Juanita Da-Pra, saw him at her house. He gave her a paper flower on which he had written her family's names. He told her that if someone knocked on the door, she should hand them the flower and "see if it is enough". Juanita Da-Pra described the appellant as "paranoid".

11. [23]

    The appellant then left his brother's house and drove to the Central Coast, to the home of Ms Elizabeth Austin and Mr Ronald Feeney. He borrowed Ms Austin's phone and made a telephone call at 3.33pm to Juanita Da-Pra and said "don't lose the flower". The appellant stayed with Mr Feeney for two to three hours, during which time he told Mr Feeney that he was "in some trouble". Mr Feeney described him as "quiet and a bit fidgety". Eventually, the appellant changed his clothes and drove away. He spent the evening of Saturday 19 December 2009 at a camping area. He said that he disposed of the hunting knife while there.

12. [24]

    Early on the morning of Sunday 20 December 2009, the appellant doused himself with petrol and attended at the emergency department of Fairfield District Hospital. He handed the nursing staff a notepad containing a handwritten note and asked them to pass it on to the police. The pad smelt of petrol and the note contained admissions by the appellant that he had killed his father and EW. It appears that at the time of writing the note, he believed he had also killed VW. The note included the following: I was once told (threatened) that my parents and myself were going to suffer terrible death. I had a time limit where I could have made their passing easier, but at the end of the day the result was going to be the same. My friend Danny knew the problem I was facing, but was in no way going to help me kill my parents nor me. A friend of his which he thought was worth approaching ... was not only the slight bit interested, he wished me luck, but would not participate either. I was left with having to do it myself. After killing my father, I was looking for a way to create a diversion, so I went to the neighbours, I was intending to only threaten them, but between what I had just done and what I had to do, I lost all control and in the frenzy become [sic] a person that even I believe [sic] should not exist. I did have a choice of saving my mother as, I was going to die, but now my only mission in life is to make it home and end my life to hopefully show how sorry I am for what took place. In trying to avoid something bad, I have only succeeded to make things so much worse, and what's worse, 2 more innocent victims were added to my list of dead. What I would have done not to have this task at all. Words are unable to explain how I regret my wrongdoings but I can only hope that my actions tonight will at least bring some closure and or comfort to the people, familys [sic] and especially the innocent victims that I regrettfully [sic] involved. I must now get home and try to complete the task that was once set, and pray that in doing so, will end this tragic event. At least for some.

13. [25]

    Another note that the appellant wrote somewhat earlier, but that was found some time after his arrest, referred to the imagined threats to his family. That note said: A friend (Danny) tried to contact someone he knew, but the more I explained, neither he nor his friend were willing to help, as I would have preferred my parents to die more humanely. That left me no choice but to do it myself. I met someone in a pub in Milperra which decided would give me a hand however while I was cleaning up at my parents, Chuck decided to visit next door, and I was unable to prevent what happened. Innocent people from their fate. I was intending on hiding, but the guilt and remorse I feel for those people has brought me to one conclusion. I'm hoping that my death will bring about some closure, and hopefully show how sorry I truly am. [strike out in original]

14. [26]

    After leaving the first note with the nursing staff at Fairfield Hospital, the appellant returned to his car, which was parked outside the hospital, and then set fire to the petrol. As police approached the car, it became engulfed in flames. After extinguishing the flames, the police removed the appellant from the car.

15. [27]

    When pulled from the car, the appellant spoke to one of the attending police officers. He admitted killing his father and attacking his neighbours. He was asked why he had done so and replied that he did not mean to. He was asked why he had killed EW and responded: It wasn't meant to happen like that. After I did my Dad, I went over there to get an alibi and things got out of hand. I panicked. Then the knife was in my hand and I just starting slashing.

16. [28]

    The police took the appellant to hospital, where he received treatment for serious burns to his head, hands and arms. He was transferred to Liverpool Hospital, where he was seen by Dr Emilie Tahtouh, who asked him why he had set himself on fire. He replied, "I may have killed my father and my neighbour". When asked by Dr Tahtouh why he did that he said, "they told me that if I didn't hurt them they would hurt me".

17. [29]

    The appellant was transferred to Concord Hospital and on 29 December 2009 commenced anti-psychotic medication. On 4 January 2010, he was interviewed by the psychiatric team at Concord Hospital and gave them a history of 15 years of psychotic illness. He said that the offences occurred because people did not take his concerns seriously. He gave no details of the offences.

18. [30]

    On 19 February 2010, the appellant was transferred to Long Bay Prison Hospital, where he spoke to a nurse, Mr Brian Owen, who was the psychiatric registrar. He told Mr Owen that he was aware that he had been charged and that he had "knocked down two" and "seriously hurt another". He said that he did not get along with his father and that they fought all the time and he ended up having a big fight with his father when the incident occurred. He told Mr Owen that he decided he needed money and went next door. He said the little girl screamed and ran past him and he used the knife on her. He told Mr Owen that he "didn't want to kill her".

19. [31]

    On 20 February 2010, the appellant was interviewed by Dr Goh, a psychiatric registrar at Long Bay Prison Hospital. He told Dr Goh that his father would not listen to his warning about an imminent raid on the house and that he stabbed his father. He told Dr Goh that his father was a difficult man and that their "tempers would flare up". He told Dr Goh that he thought he would go next door, "pretend that a home invasion had occurred there, take money from the house and then leave the city". He said that the girl ran past him while he was holding the knife and he was really sorry it happened.

20. [32]

    More than 12 months elapsed before the appellant gave any further account of the offences. The subsequent accounts were given to three psychiatrists, Dr Olav Nielssen, Dr Stephen Allnutt and Dr Sharon Reutens. I shall refer to those accounts when dealing with their evidence. It is significant that in those accounts, the appellant referred to hallucinations about bikies and about a blue car while on his way to the W residence. Both of those matters were delusions that he later said were in his mind and that, in causing him to fear for his life and the lives of his family members, were prime reasons while in his delusional state for committing the offences against EW and VW. The bikies were, on the appellant's later accounts, a critical component, perhaps even the single most significant component, of his delusions.

21. [33]

    There was no mention of either of those matters in either of the handwritten notes, in the conversations at the time of his arrest or in the interviews by medical staff at Liverpool or Concord Hospitals or at Long Bay Prison Hospital. The closest the appellant came to mentioning a threat from bikies when attempting to recount the events involving the offences, before speaking to the psychiatrists some 15 months later, was when he told Dr Tahtouh that "[t]hey told me that if I didn't hurt them they would hurt me" and when he told Dr Goh on 20 February 2010 that on the day of the offences he feared an imminent raid on his parents' house. Both of those comments might have been referable to a threat from bikies. There was no mention at all, however, of a blue car being after him while on his way to the W residence.

The Psychiatric Opinion Evidence

1. [34]

   The appellant gave accounts of the offences to the three psychiatrists. Those accounts were foundational to the psychiatrists' opinions, since the psychiatrists accepted the veracity of the appellant's accounts in order to draw inferences as to the appellant's state of mind at the time. On the basis of those inferences, the psychiatrists expressed opinions as to whether the full defence of mental illness or insanity was available in relation to the killing of Gervasio Da-Pra and EW and the attack on VW. Also on the basis of inferences founded on an acceptance of the veracity of the appellant's accounts, the psychiatrists expressed opinions on whether the partial defence of substantial impairment was available in relation to the two offences to which it could possibly be available, namely, the two homicides. Thus, all the psychiatric opinion evidence was based on a broad acceptance of the veracity of the accounts that the appellant gave them.

2. [35]

   At his trial, the appellant contended that he should be found not guilty, in relation to all three charges, by reason of mental illness. Alternatively, in relation to the two murder counts, he contended that he was substantially impaired by abnormality of mind and that manslaughter was the appropriate verdict. The issue at the trial in respect of all three counts was the appellant's mental state at the time of the alleged offences. The appellant's mental state was the subject of psychiatric evidence at the trial by Dr Nielssen, Dr Allnutt and Dr Reutens.

Dr Allnutt's Evidence

1. [36]

   Dr Allnutt was asked by the Crown to assess some of the evidence and to interview the appellant. The Crown provided him with a large number of documents, including statements of witnesses and the appellant's handwritten notes. Dr Allnutt conducted a clinical examination on 23 June 2011 and a subsequent examination in September 2011. He provided three reports of his examinations of the appellant. He gave oral evidence as to the contents of his reports.

2. [37]

   Dr Allnutt said that the appellant presented as cooperative and fairly well-groomed. His speech was clear, coherent, soft and monotonous. He was clearly anxious and upset during the interview, though his affect was restricted. He spoke in a clear and coherent manner and maintained good eye contact. He did not manifest behaviour suggestive of either the effect of psychiatric medication or neurological illness. He did not manifest significant intellectual impairment. His capacity for insight and judgment was adequate. He was not manifesting significant active symptoms of psychosis. He did, however, provide a history of cannabis use for two to three years prior to the offences, as well as relatively significant substance abuse over a long period consistent with probable substance abuse disorder.

3. [38]

   Dr Allnutt said that the symptoms that the appellant had described himself as having prior to the offences would be consistent with a systematised persecutory delusional system, probably due to paranoid schizophrenia. He noted that the appellant was raised in a relatively loving and supportive family environment. He appeared to have been relatively dependent on his parents for a number of years. He had apparently been able to pursue gainful employment until he suffered a motor vehicle accident in about 1990. After the accident, he was on a disability support pension, which likely increased his dependence on his parents.

4. [39]

   Dr Allnutt considered that the appellant manifested some evidence of dysfunctional personality traits but that he would not, at that stage, conclude that he had a personality disorder. Dr Allnutt considered that the appellant's most significant stressor related to the criminal charges against him and that his functioning appeared to be reasonable.

5. [40]

   Dr Allnutt considered that the symptoms were consistent with a persecutory delusional belief and that there would be reasonable grounds for concluding that the appellant was suffering from a psychosis and thus a disease of the mind when the offences occurred. He became increasingly anxious that if he went to the police, more people would die and Boris would kill his family, so he did not go to the police and subsequently saw no options for himself, feeling trapped. He formed the view that people were coming for his family and believed that time was running out for him and he needed to act to protect his mother.

6. [41]

   Dr Allnutt expressed the opinion that, when the appellant killed his father, he was suffering a disease of the mind of a nature and severity that it severely impacted on his capacity to make rational decisions with regard to his father. He was thus experiencing a defect of reason. Dr Allnutt considered that it was unlikely that the defect of reason was such that it significantly compromised the appellant's capacity to know the nature and quality of his actions. Dr Allnutt said in evidence-in-chief that while the appellant was suffering that defect of reason, he nonetheless appreciated the nature and quality of the physical act in relation to the death of his father. He said that the appellant understood that if he hit, strangled or stabbed someone, he could potentially seriously harm, if not kill, the person. On that version, he intended to kill his father.

7. [42]

   Dr Allnutt considered that, given that the appellant incorporated his father and other family members, particularly his mother, into a delusional system, he would have been compromised in his capacity to make rational decisions in relation to both of them. It appears that he had irrationally determined, because of his delusions of persecution, that he had no option but to kill his father in order to save his mother and that, having regard to his delusional world, that was the better option and the right thing to do. Dr Allnutt expressed the opinion that in those circumstances, the appellant would have been unable to reason about the matter of wrongfulness in relation to his behaviour towards his father with a reasonable degree of composure. Dr Allnutt was of the opinion that in regard to the behaviour leading to the death of his father, the defence of mental illness was available.

8. [43]

   Dr Allnutt said that not wanting to be arrested and put into gaol was consistent with the appellant's understanding that the authorities would think that what he had done was wrong. Intending to create an alibi or divert attention from himself, as the perpetrator of his father's death, was also consistent with such an understanding that what he had done would be viewed as being wrong. Dr Allnutt said that the appellant's inability to reason as to wrongness was such that he felt it was morally right to do what he did because it would save his mother.

9. [44]

   Dr Allnutt formed the opinion that, if it were accepted that, when the appellant entered the W residence, he believed he had been followed and that a person whom he believed had come from the car had pushed him into the house, then it would follow that the appellant had incorporated the neighbours into his delusion. However, that would have to be accepted notwithstanding that the appellant's account to Dr Allnutt was at odds with other of the appellant's accounts of what happened on the day and specifically at odds with other of the appellant's accounts about what was in his mind at the time of entering the W residence, inconsistencies of which Dr Allnutt was aware. One inconsistent aspect was that on other occasions, the appellant had suggested that he intended to enter the W residence to commit a robbery.

10. [45]

    Dr Allnutt said that, if the appellant had incorporated the neighbours into the delusion, by viewing them as associated in some way with those whom he believed were attacking him, that would affect his ability to know or rationalise that what he was doing in relation to the neighbours was wrong. However, Dr Allnutt said that his opinion could vary if there was some other rational explanation for the way the appellant acted at the W residence, such as an intention to try to divert attention from what he had done to his father. Dr Allnutt agreed that his opinion "depends on what facts are accepted or assumed for this purpose".

1. [46]

   Dr Allnutt saw the appellant again on 22 September 2011, when he was provided with some further detail. The purpose of the interview was to clarify the appellant's thought processes at the time of his killing of EW and attacking her grandmother.

2. [47]

   Dr Allnutt believed that it would be reasonable to conclude that, on balance, the appellant had "a defence of mental illness" in relation to the charge concerning VW because his disease of the mind caused him to be unable to reason about the matter, and the wrongfulness of attacking EW, with a reasonable degree of sense and composure as a person with a rational mind would. Dr Allnutt said that, on balance, he considered that the appellant "would have available to him a defence of mental illness" in relation to the charges concerning all three victims.

3. [48]

   Dr Allnutt's opinion was based on his accepting the truth of the account that the appellant gave him and on his drawing inferences from that account about the appellant's symptoms. Even accepting the truth of the appellant's account given to him, Dr Allnutt said that it was marginal as to whether the appellant would have the defence of mental illness available to him, "in the sense that he would have had probably capacity to think about it", though he was also "pre-occupied by his delusional experience that he never applied that thought".

4. [49]

   Dr Allnutt was subsequently asked to provide a third report and to consider scenarios different from the appellant's account. That is to say, he was asked to assume different factual bases on which he was to base his opinion.

5. [50]

   First, he was asked to assume a scenario in which the appellant attended the W residence to divert suspicion from himself in relation to his father's death and that he did that by trying to make it appear to be a home invasion. Included in his thinking was the intention of obtaining money so that he could leave the area and not be arrested by authorities for his father's death. He was asked to assume that the attack on the neighbours was consistent with that intention and that the appellant also took steps afterwards to disturb things in the W residence to make it appear that a home invasion had taken place. He was also asked to assume that the appellant had inflicted significant injuries to both EW and VW other than cutting their throats, suggesting that the appellant's attacks on them were more than impulsive or "momentary slashing type attacks". He was asked to assume that it may be possible to reject the appellant's assertion that he had believed he had been followed into the W residence by persons who had made threats and to reject the assertion that he mistook EW for an attacker or someone out to harm or kill him.

6. [51]

   Dr Allnutt said that even under the scenario created by those assumptions, if it were accepted that the appellant was experiencing psychotic symptoms in the form of a delusional belief that he or his family were under threat and thus experiencing a disease of the mind, then he would be regarded as having a defect of reason. This was because psychosis is a mental condition that by its nature causes a defect of reasoning. The issue would then be whether that defect of reasoning significantly affected his capacity to know that his actions in relation to EW and VW were wrong. Dr Allnutt expressed the view that it was unlikely, under that scenario, that the appellant's defect of reason was of a nature and severity that it significantly impaired his capacity to know the nature and consequence of his actions.

7. [52]

   Dr Allnutt said that when the appellant killed his father, he was of the delusional belief that he and his family were under threat and that his persecutors were following him. There would be a propensity to continue to hold that belief up to the time of the offences involving EW and VW. He was aware when he entered the W residence that what he had done to his father was wrong, in the sense that he understood it to have been wrong in the eyes of others. But Dr Allnutt was of the opinion that the evidence suggested that the appellant remained of the view that he had done the right thing in a moral sense. That is the basis for his view that, on balance, the appellant had available a defence of mental illness in relation to his father. He considered that the difficulty in reasoning about wrongfulness would have persisted at the time that he entered the W residence. His reasoning capacity, at least as it pertained to the death of his father, remained impaired by his ongoing delusional beliefs. Thus, he was still vulnerable to impaired reasoning at the time of the offences involving EW and VW.

8. [53]

   Dr Allnutt was of the opinion, however, that the evidence of thoughts, actions and feelings of guilt and regret in relation to EW and VW suggested some degree of awareness of wrongfulness. Dr Allnutt did not believe that a defence of mental illness would be available if the appellant had attended the W residence to divert suspicion from himself in relation to his father's death and to obtain money so he could leave the area and not be arrested by authorities for his father's death. The defence would not be available if the appellant took steps to make it appear that there had been a home invasion and inflicted significant injuries on both victims besides the slashing of their throats such that the attack was more than momentary, and if one rejected the assertion that at the time, the appellant believed that he was being followed and that he mistook EW to be an attacker out to kill him.

9. [54]

   While the appellant was probably anxious, emotionally aroused and paranoid about his situation, Dr Allnutt considered that the motive was rational, namely, to avoid recognition, detection and arrest by police. The behaviour was planned. Since he would not be regarded as having incorporated the victims directly into his delusional belief system, he was likely to have known that his actions were legally wrong and also morally wrong, having regard to his strong sense of guilt afterwards.

10. [55]

    Thus, Dr Allnutt considered that on this scenario, involving acceptance of facts different from those that the appellant had provided, the appellant likely retained the capacity to understand events as they pertained to EW and VW, to judge right from wrong in regard to them and to control his actions. The defence of substantial impairment would then be unlikely to be available. Thus, Dr Allnutt expressed the opinion that on the alternative scenario, a defence of mental illness was not available to the appellant in relation to VW and neither a defence of mental illness nor a defence of substantial impairment was available to him in relation to EW.

11. [56]

    Dr Allnutt then dealt with further variations of the above scenario apparently suggested by Dr Allnutt himself. The variations involved making the assumptions mentioned above, but altering what the appellant's motive was when he entered the W residence. On the third variation, which was referred to as the "third scenario", Dr Allnutt made the additional assumption "that killing the occupants was not part of his initial plan at the time he entered, that it was only after he entered the [W residence] that the idea of the attacking or killing [of] them occurred". Dr Allnutt said on that "third scenario", the issue was less clear because the defence of substantial impairment may also be applicable in relation to EW as "his mental state could have impaired his capacity to control his actions because he could have acted impulsively in a panic due to his delusions".

12. [57]

    Dr Allnutt was asked to assume that VW and EW were struck and fell to the ground and that their throats were cut while unconscious on the ground. He accepted that once they were on the ground, the appellant would have known that they were his neighbours. Dr Allnutt said that if they were knocked to the ground and incapacitated, and he then cut their throats, his opinion was that the appellant knew the nature and quality of the physical acts, including the cutting of their throats. He said that if the appellant entered the house intending initially not to attack someone, but then did nevertheless strike them through some reaction, it was possible that he could have realised what he had done and therefore decided to kill them rather than leave witnesses as to what he had done. That is to say, he did it to avoid detection and arrest in relation to the attacks on the Ws and to get away.

Dr Nielssen's evidence

1. [58]

   Dr Nielssen assessed the appellant on 17 March 2011 and prepared a report dated 5 April 2011. Dr Nielssen had regard to a number of documents, including a transcript of the appellant's criminal history and statements by VW, Mr Mario Da-Pra and Mr Carlo Da-Pra. He also had a copy of the appellant's note. A statement by Juanita Da-Pra and photographs and reports relating to the crime scenes were also made available to him. He also had access to the three reports by Dr Allnutt, as well as the various accounts that Mr Da-Pra gave to medical staff at Concord Hospital. Dr Nielssen gave oral evidence as to the contents of his report.

2. [59]

   Dr Nielssen's conclusion, after his interview and examination, was that the appellant's mental state was one of chronic schizophrenia and substance abuse disorder, rather than a substance-induced psychotic illness. That was because of the chronic nature of his delusional ideas, the persistence of symptoms for some time after he stopped using drugs, and what Dr Nielssen thought to be the impoverished nature of his emotional responses or thought content. Dr Nielssen thought that they were more consistent with chronic mental illness than with a transient or temporary drug-induced state. He said that the vivid auditory hallucinations are more typical of schizophrenia than drug-induced conditions. Dr Nielssen described schizophrenia as a mental illness that typically manifests with auditory hallucinations, disorganised thinking, impairment in emotional regulation, especially early in the illness, and delusional beliefs or fixed false beliefs, often of a bizarre nature. Over the long term, there is chronic impairment in intellectual function and often a loss of volition or emotional responses.

3. [60]

   Dr Nielssen said that he believed that the appellant had the defence of mental illness open to him in relation to his father's death. Dr Nielssen expressed the opinion that the appellant had a disease of the mind in the form of chronic schizophrenia that gave rise to a defect of reasoning and, specifically, to a frightening, delusional belief that he had to kill his father to save his mother. He thought that the appellant probably recognised the nature and quality of his act in a physical sense. He knew, in a sense, that he was killing another human being but did not recognise that his actions were morally wrong, as he believed he was killing his father for altruistic purposes and because his family was in danger. Dr Nielssen said that the appellant's acutely disorganised thinking and emotional arousal affected his capacity to reason with any calmness or composure about the alternative courses of action available to him.

4. [61]

   Dr Nielssen said that he thought that the appellant had the defence of mental illness available to him in respect of the subsequent attacks upon EW and VW for the same reasons. Dr Nielssen said that he was still acutely mentally ill in that he had a delusional belief that he was still in danger. The immediate trigger was his belief that he was being attacked, possibly by people who had followed him to the W residence. More importantly, his capacity to reason in a calm and logical way about what to do was grossly impaired by an acute schizophrenic illness. In reaching that opinion, Dr Nielssen said that he was aware of the evidence that the appellant had moved various objects in VW's bedroom and of the appellant's account that he had attended at the W residence with the intention of creating an alibi. He did not consider that that intention in any way undermined his opinion.

5. [62]

   Dr Nielssen was asked about Dr Allnutt's opinion concerning the defence of mental illness in relation to two of the factual scenarios described by Dr Allnutt, involving the variations as to what was in the appellant's mind as he was entering the W residence. Dr Nielssen said that, on the face of it, it was a purposeless and unmotivated crime that did not have a rational or malicious intent. He said that it was more a horrible and tragic accident, where a mentally ill person came into the house affected by frightening delusions. He did not know of any information that suggested that there was a rational or malicious motive for the offences. On the other hand, he was quite confident, based on the information available to him, that the appellant had been psychotic for some time before the offences. He considered that he was psychotic at the time he killed his father and psychotic at the time he set fire to himself. He was psychotic for some weeks or months after he was arrested.

6. [63]

   Dr Nielssen considered that the appellant was affected by delusions throughout the period of the offences. He observed that the specific content of the delusions changed or evolved according to the content of further hallucinations and the appellant's interpretation of events in his surroundings, such as the passing of a blue car, that confirmed or supported his delusional beliefs. He considered that they were present throughout that period and that the appellant's state was such that it was impossible for him to reason with composure about the origin of his symptoms or the likely consequences of his actions.

7. [64]

   In response to a question from the trial judge, Dr Nielssen agreed that if someone was suffering from a delusion in the morning, the person would not be able to get it out of his mind at all during the day. If it is a fixed false belief held with the sort of intensity that creates fear, then it is likely to be present all the time. Dr Nielssen said that someone who has such delusions in effect has them throughout waking hours, without pause or break, for days at a time. He said that during acute episodes, the delusions tend to be present all the time. When asked what he meant by "acute episodes", Dr Nielssen said that schizophrenia tends to be an episodic condition, in that it responds to treatment. After treatment, most people will have some remission from symptoms.

8. [65]

   Dr Nielssen said that, in his opinion, the appellant was mentally ill when he committed the offences on EW and VW, based on the appellant's history and corroborative information about the onset, nature and course of his psychotic illness. The effect of a severe psychotic illness would be to deprive the appellant of the capacity to think in a calm and logical way as to what he was doing. He maintained that opinion notwithstanding the appellant's account that he went to the W residence with a view to effect some kind of alibi or to get money. He confirmed that the evidence that the appellant rummaged around in VW's bedroom and effected some kind of damage to the outside of the W residence, so as to create the impression that others may have been responsible for the attack on the Ws and the crime of his father's death, did not have any impact on his opinion in relation to the attack on EW and VW.

9. [66]

   In cross-examination, Dr Nielssen agreed that the appellant understood that the community saw the taking of a life as wrong, although in certain circumstances there may be a justification for taking a life, such as when he believed that he was saving the lives of his mother and other members of his family by doing so. Dr Nielssen agreed that the appellant would have known that the taking of a life was legally wrong, reflecting community standards that it is wrong.

10. [67]

    Dr Nielssen agreed that the delusions concerning his father's death did not incorporate his neighbours. Even at the door of the W residence, the Ws were not part of the delusion. He chose to go to the W residence, understanding that they were neighbours. Dr Nielssen agreed that the appellant would not go to a place where he thought there were bikies. Dr Nielssen agreed that, in relation to all three offences, the appellant knew the physical nature of his acts. The question was whether he was able to reason with a moderate degree of sensibility and rationality in respect of his actions.

11. [68]

    Dr Nielssen was asked, given the fact that he thought that the appellant's capacity for logical and rational thinking was quite impaired, whether deciding to create an alibi and move his father's body to give him more time get away demonstrated rational thought. He responded that it was rational behaviour when described like that, but that the whole of the appellant's behaviour was affected by his belief that he was being pursued and was in danger. Dr Nielssen's understanding was that the appellant believed that he was being watched the whole time and was experiencing auditory hallucinations throughout the day in question and on previous days.

12. [69]

    Dr Nielssen accepted that when the appellant entered the W residence, he knew it was wrong to take a life. However, he considered that the appellant believed he was in mortal danger and reacted to defend himself. In that way, his delusional belief affected his behaviour. Dr Nielssen said that an acute mental illness prevents people from reasoning in a calm and rational way because they are often acutely frightened and have grossly disorganised thinking.

13. [70]

    Dr Nielssen accepted that his opinion was based on the appellant's account given to him more than 15 months after the offences and that the appellant had previously given accounts to others. Dr Nielssen was asked about the note that the appellant gave to the staff at Fairfield Hospital. Dr Nielssen's attention was drawn to the fact that while the note mentioned the appellant's delusion that he had to act in relation to threats to protect his mother, it made no mention of being followed on his way to the W residence. Rather, the appellant said that he was intending only to threaten the Ws but that, between what he had just done to his father and what he had to do, he lost all control in the frenzy and became a person that even he believed should not exist. Dr Nielssen would not agree with the proposition that there was a difference between the appellant's explanation in relation to his father and his explanation in relation to the Ws. Dr Nielssen said that he believed that the delusional beliefs were operating throughout that time.

14. [71]

    Dr Nielssen's attention was then directed to the appellant's earlier note in which he blamed someone else for what happened to the Ws. Dr Nielssen agreed that the implication from both notes was that the appellant realised that he had taken the lives of two innocent people with no excuse and needed to point the finger at someone else. Nevertheless, Dr Nielssen considered that the actions were consistent with being acutely unwell.

15. [72]

    Dr Nielssen's attention was drawn to the note in which the appellant said that after killing his father he was looking for a way to create a diversion so he went to the neighbours, and that he was intending only to threaten them but between what he had just done and what he had to do he lost all control in the frenzy and became a person that even he believed should not exist. Dr Nielssen agreed that that reason was different from the one the appellant had given to him as to why he went to the W residence.

16. [73]

    Dr Nielssen also confirmed that he had not been provided with Mr Owens's statement or the account that the appellant gave to Dr Goh. Dr Nielssen did not see a rational purpose in someone who may have committed a crime trying to divert attention away from himself and from what had happened by killing two other people. He considered that it was bizarre to commit two further homicides to make up for the first one that he was trying to conceal. He did not consider that that was logical at all. He did not consider that the appellant's other accounts made any difference to his final opinion. He considered that the appellant was in an acutely psychotic state and that the further offences involving EW and VW were the result of his disturbed state of mind.

17. [74]

    Dr Allnutt's variations in relation to the appellant's mental state before entering the W residence did not make Dr Nielssen change his opinion. The problem that he had with those variations was that they assumed that the appellant had lucid intervals, yet the appellant had had an episode of insanity that had lasted for months before the offences and that had lasted for months afterwards. He did not consider that one could reduce the events in question to rational actions based on a rational mind. On the other hand, he conceded that there were elements of rationality in the appellant's actions, such as placing his father's body in the boot of the car to reduce his mother's stress and trying to set up an alibi or distraction. Dr Nielssen said that those matters did not alter his opinion, since people who are psychotic can still have a rational understanding of the real world even while they remain affected by their delusional beliefs.

18. [75]

    Dr Nielssen accepted that if the appellant's delusions contributed to his attack on EW and VW, it must have been because of a thought process that occurred after he entered the house. He accepted that once VW lost consciousness and fell to the ground after receiving blows to the head, the appellant would have recognised that she was no longer a threat. Similarly, he accepted that once EW was struck and fell to the ground, the appellant would have recognised that she was not a threat. However, he qualified his agreement by saying that that was so "in a rational state of mind".

19. [76]

    Dr Nielssen agreed that there was evidence that suggested that the appellant understood before entering the W residence that it was wrong to take a life. However, Dr Nielssen said that while a person in a rational state would recognise that the Ws were not a threat, to cut their throats while they were on the ground indicated that the appellant must have been in an acute and irrational state. The acts themselves suggested that he was not in a rational state.

20. [77]

    In re-examination, Dr Nielssen reiterated that the appellant was deprived of the capacity for completely rational thinking because of the overall effect of his acute mental illness. While individual actions might appear to have been rational, his overall motivation and capacity for logical thinking was affected by his mental illness. Even after being made aware of the appellant's various accounts, Dr Nielssen remained of the view that the appellant had been mentally ill. He considered that at the time of the offences, the appellant was unable to reason about the wrongfulness of his actions and that his subsequent remorse was not inconsistent with that conclusion. Rather, it was an appreciation of what had happened. One can understand why the jury might have been skeptical about the maintenance of that opinion.

Dr Reutens's Evidence

1. [78]

   Dr Reutens considered the opinions of Dr Allnutt and Dr Nielssen and interviewed the appellant on 8 May 2012. Dr Reutens had available a statement of facts in relation to the three offences, the appellant's criminal history, copies of statements by Mario Da-Pra, Carlo Da-Pra, Elsa Da-Pra and Juanita Da-Pra, as well as a copy of a statement by VW. She also had copies of medical notes of 19 and 20 February from Concord Hospital and a copy of the appellant's note, a crime scene report and post-mortem reports. Dr Reutens gave oral evidence.

2. [79]

   Dr Reutens considered that the appellant's symptoms were consistent with chronic schizophrenia. Thus, the beliefs about Boris and the bikies were delusions that, coupled with his auditory hallucinations, were consistent with a psychiatric disorder.

3. [80]

   Dr Reutens expressed the opinion that the beliefs recounted by the appellant constituted a delusion that, together with the auditory hallucination of Boris, was consistent with the diagnosis of a psychotic disorder. She said that the chronic nature of his psychotic disorder and its persistence in hospital, in the absence of ongoing substance use, was consistent with a diagnosis of chronic schizophrenia. Dr Reutens expressed the opinion that when the appellant killed his father, he was suffering from a mental illness, namely chronic schizophrenia, which is a disease of the mind. That disease caused a defect of reason: as a result of his delusion that his father had to be killed to prevent more people, particularly his mother, from being killed, he was unable to make a rational decision. However, she considered that he was likely to have known the nature of his actions. Dr Reutens said that because the delusions involved a belief in the inevitability of the death of family and friends, which could only be averted by the appellant killing his father and himself, it was her opinion that he was impaired in his ability to judge the rightness or wrongness of the act with any reasonable sense of composure and reason.

4. [81]

   Dr Reutens said the appellant's decision that he required an alibi so that he could get away, and his decision to stage a home invasion or to call his father and leave a message, indicated that after he had killed his father, he knew it was legally wrong. However, in his mind, he was morally justified because he believed that it would avert more deaths. Dr Reutens considered that that indicated that he was unable to judge rationally the rightness or wrongness of his act. In her opinion, the appellant had a defence of mental illness available to him for the offence of killing his father.

5. [82]

   Dr Reutens expressed the opinion that at the time of the offences involving EW and VW, the appellant was suffering from a psychotic illness, namely schizophrenia, which produced a defect of reasoning such that he was incapable of rational thought. She considered that it was unlikely that it significantly compromised his capacity to know the nature and quality of his actions. However, based on the history that the appellant provided her, she was of the opinion that he had incorporated his neighbours into his delusion. That is to say, he believed that they were the people who he believed were following him so that he was acting in self-defence. She said he was unable to reason with any degree of composure as to the rightness or wrongness of the act because he believed he was acting in self-defence, was unable to think rationally due to his psychotic illness and was in a state of arousal after he had just killed his father. Therefore, she believed he had available to him the defence of mental illness.

6. [83]

   Dr Reutens also considered that the appellant would have the defence of substantial impairment by abnormality of mind available to him in relation to both killings because at the time of both sets of offences, he was suffering from an abnormality of mind, namely schizophrenia, which impaired his ability to appraise rationally the nature of the acts and which impaired his ability to reason in a logical manner. However, Dr Reutens concluded that the appellant also had the defence of mental illness open to him for all of the three charges, because he was suffering from schizophrenia manifesting in persecutory delusions and auditory hallucinations. That disorder of mind affected his ability to appraise the events with any degree of rationality. He was also grossly impaired in his ability to reason logically. He was unable to determine the rightness or wrongfulness of his actions because he was acting on the basis of delusions.

7. [84]

   Dr Reutens confirmed that in coming to her conclusions, she had been provided with information concerning the damage to the flyscreens thought to have been done by the appellant. She was also aware of the evidence of various objects being moved in VW's bedroom.

8. [85]

   In the course of cross-examination, Dr Reutens said that the appellant's disease of the mind did not render him incapable of any rational thought, in that he still maintained the ability to do learnt acts, that is procedural memory, but it affected processes that required thinking, namely logic. It would also affect his ability to contain himself and not act impulsively. People who are psychotic can behave fairly normally and function in a way that does not bring a great deal of attention to themselves, even if in other areas their thinking is quite impaired.

9. [86]

   Dr Reutens agreed that the appellant exhibited rational thought in placing his father's body in the car and cleaning up the blood in the garage, irrespective of whether he did that to prevent distress to his mother or to buy himself time to get away. She also accepted that he was thinking rationally in knowing that the police, not the bikies, would now be after him for killing his father and in not wanting to go to gaol or to kill himself. They were rational thoughts. However, Dr Reutens said, the rational thought of not wanting to go to gaol was based on the delusion that he would be killed in gaol. She considered that they were rational thoughts produced by an irrational mind. The higher-order and more complex thoughts are harder to carry out. She agreed that the appellant's attempt to establish an alibi by going next door indicated higher-order thinking. She said that rationality was not a dichotomous variable: some people are grossly irrational in all aspects, while others have rationality to a degree. However, as the degree of planning or the degree of complexity of an action increases, the irrationality starts to become more apparent.

10. [87]

    Dr Reutens agreed that when the appellant was in the W residence, he considered them neighbours right up to the time that he felt he was pushed in the back. She said that at that stage, he had incorporated them into his delusion that the people in the car chasing him were now in the house and he had to defend himself. She agreed that that was only for a very short period of time, since once the screaming stopped, he realised that they were his neighbours once again.

11. [88]

    Dr Reutens was asked about the fact that VW was lying unconscious on the ground after being struck when the appellant cut her throat and about the fact that the evidence showed that EW's throat was also cut when she was lying supine on the ground. Dr Reutens was asked to comment on why the appellant did not understand at that point when he went to cut their throats while they, a 12-year-old girl and an elderly woman, were lying defenceless on the ground, that they were the neighbours whom he had recognised as such when he had entered the house. Dr Reutens thought that it was a very impulsive overreaction and that it was difficult to know how quickly in succession the events had happened. If VW had fallen and he had immediately cut her throat, that would be an impulsive action: anything that moved would be perceived as the attacker and it was best just to kill them. However, if VW was lying on the ground and he approached her, the likelihood that he was acting impulsively would be lower. Dr Reutens said that it was a momentary action, but agreed that two people having their throats cut would have taken more time and was not just momentary.

12. [89]

    Dr Reutens was asked to consider the possibility that the appellant had attacked the Ws because he was concerned that his efforts to create an alibi were undermined by the fact that he had struck VW since if EW escaped the house, she could alert the authorities. Dr Reutens accepted that as a possibility, but believed that the appellant's reactions were also impulsive and aroused, and that he was acting without thinking rationally.

13. [90]

    Dr Reutens said that if the attack on the Ws were a momentary slashing, it would go towards a defence of mental illness. If it were something more deliberate, it would suggest that he was not acting impulsively in a highly aroused state such that he was unable to judge the rightness or wrongness of the act. Then the defence of mental illness would, on the balance of probabilities, be less likely to be made out. Dr Reutens thought, on the balance of probabilities, that at the time when the acts were actually committed, he might not have been able to judge the rightness or wrongness with a reasonable sense of composure and reason. However, shortly afterwards, when the screaming stopped, he could. Dr Reutens said that going from one to the other suggests that the availability of the defence moves down in probability.

14. [91]

    In re-examination, Dr Reutens was asked to assume that the appellant had intended to use his knife to inflict grievous bodily harm. She said that that proposition did not undermine her diagnosis of psychosis. She expressed the view that the factual scenarios put forward by the Crown did not affect her opinion that, on the balance of probabilities, the appellant was mentally ill at the relevant time. Having read the post-mortem reports and having considered the severity of the attacks, Dr Reutens nevertheless concluded, on the balance of probabilities, that the appellant was not acting with a moderate sense of composure. She was of the view that the appellant had overreacted to perceived or actual provocation, in circumstances where his emotional and cognitive responses were impaired by his disease of the mind. Again, one can understand why the jury might have been skeptical about that opinion.

Ground 1: Direction as to Expert Evidence

1. [92]

   By reason of Rule 4 of the Criminal Appeal Rules, the appellant requires leave to raise ground 1 since it was not raised at the trial. Leave to appeal should be granted. However, for the reasons that follow, the ground should be rejected.

2. [93]

   The issue is whether the appellant had available to him the defence of mental illness or substantial impairment, on which he bore the onus of proof on the balance of probabilities. The evidence did not support a finding that the appellant did not know the nature or quality of his act in killing his father. Accordingly, there was a single issue in relation to the defence of mental illness. The issue was whether he had the capacity to understand that his actions were wrong and the capacity to reason, with some modest degree of calmness, in relation to the moral quality of what he was doing.

3. [94]

   Evidence on that single issue was led from the three physiatrists. Where expert evidence is not challenged and there is no other evidence that casts doubt upon it, the trial judge should direct the jury that they should not reject it. On the other hand, where the factual basis for the opinion may be incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not necessary.

4. [95]

   Each of the psychiatrists based opinions on a factual substratum consisting of the following:

5. [96]

   The appellant's first full account of what happened was to Dr Nielssen in March 2010, after he had decided to plead not guilty by reason of mental illness. In his initial interview with Mr Owens, the nurse, he said that he did not get along with his father and that they had had a big fight before the offence occurred. There was no reference to bikies. That account was similar to the one the appellant gave Dr Goh on 20 February 2010. On the other hand, the appellant told Dr Tahtouh on 20 December 2009 that "they told me that if I didn't hurt them they would hurt me".

6. [97]

   Dr Allnutt referred in cross-examination to the possibility that the appellant may have given an account of events that was more palatable than the truth. Dr Nielssen agreed that a person's ability to explain conduct while in a psychotic state depends upon the detail of the person's memory, the amount the person is willing to disclose and the honesty of that disclosure. Dr Nielssen agreed that the appellant's account was a significant matter upon which he relied in forming his opinion.

7. [98]

   In his summing up, the trial judge told the jury that they should pay close attention to each expert's opinion and to the underlying facts upon which each opinion was based, in order to decide whether to accept the opinion evidence. His Honour directed the jury, in orthodox terms, to the effect that they would need very good reasons not to accept an opinion about which all the experts agree and which was in their field of expertise. His Honour also gave the jury his own opinion on the availability of the defence of mental illness in relation to the killing of Gervasio Da-Pra.

8. [99]

   The present case was not one where there was a danger that the jury, unless warned, might fail to appreciate the real meaning of the opinion evidence and might assess the appellant's conduct by attributing to him the kind of reasoning that a person without mental illness might employ. Clearly enough, the jury accepted the opinion evidence that when he killed his father, the appellant was suffering from an abnormality of the mind arising from an underlying condition that substantially impaired his capacity to judge whether his actions were right or wrong. That must follow from the verdict of manslaughter rather than murder.

9. [100]

   In the present case, there was evidence that cast doubt on the opinions expressed by the psychiatrists. The appellant's accounts of his actions on the day in question were unreliable, thus casting doubt on the assumptions made by them. There was other evidence capable of displacing the psychiatric opinion evidence and throwing doubt upon it, in circumstances where the opinion evidence was based on the appellant's self-serving statements and his accounts were shown to be unreliable. Accordingly, it was not necessary in the present case for the trial judge to direct the jury that they must not reject unanimous medical evidence. There was no error on the part of the trial judge and the first ground of appeal should be rejected.

Grounds 2 and 3: Unreasonable Verdicts and Section 7(4) of the Appeal Act

1. [101]

   Having regard to the substantial overlap between the matters that must be considered in dealing with the ground that the verdicts are unreasonable and the possible application of s 7(4) of the Appeal Act, it is convenient to deal with them together. Although all three charges arise out of circumstances that occurred within close proximity to each other, it is necessary to draw a distinction between the death of Mr Da-Pra's father, on the one hand, and the offences involving grievous bodily harm to VW and the murder of EW, on the other hand.

2. [102]

   The appellant invites the Court to make a special order under s 7(4) of the Appeal Act on the basis that the evidence was so strongly in favour of the view that the appellant was mentally ill that he was not responsible according to law. He contended that the defence of mental illness was established in relation to the charges concerning EW and VW.

3. [103]

   Section 7(4) of the Appeal Act confers a power on the Court to examine the evidence and to act upon the Court's view of that evidence in appropriate cases. The power may be exercised not only in cases where it might be appropriate to order a new trial, but also in cases in which the Court is not prepared to hold that the jury's verdict was so perverse and unreasonable as to require that the verdict be set aside. Even if the jury's verdict is not unreasonable in that sense, but the Court considers that the evidence was so strongly in favour of the view that the accused was mentally ill so as not to be responsible according to law, it is open to the Court to exercise the special power conferred by s 7(4). The condition of the exercise of the power is simply that it appears to the Court that the accused was mentally ill. Nevertheless, the cases that fall within the power will necessarily be of rare occurrence. If the evidence, although strongly in favour of the accused's case, is such that a jury, acting reasonably, is not satisfied that the case was established, it will rarely happen that an appellate court, acting merely on a transcript of evidence, will be satisfied that a different view ought to be taken. The appellate court does not have the benefit that the jury had of hearing the evidence as it was given and of seeing the witnesses and seeing the accused himself (R v Jenkins (1963) 64 SR(NSW) 20 at 29; R v Derbin [2000] NSWCCA 361 at [12]-[13]).

4. [104]

   The power conferred by s 7(4) is an exceptional one, insofar as it invites the Court to second guess a jury verdict even in circumstances where the Court does not conclude that the jury's verdict was perverse or unreasonable so as to require that it be set aside. In order to determine whether the power should be exercised in the present case, it is necessary to examine in some detail the evidence at the trial, particularly the opinion evidence of the psychiatrists who gave evidence. A significant aspect of that opinion evidence is, of necessity, the detailed assumptions made by the psychiatrists as the basis of their respective opinions. In that regard, the Crown contends that it is highly significant that the relevant assumptions depend, for the most part, upon the appellant's histories given some considerable time after the events in question and after he had decided to plead not guilty on the basis of mental illness.

5. [105]

   The question is whether the Court is satisfied that the appellant was labouring under such a defect of reasoning, caused by a disease of his mind, as either not to know the physical nature of his acts or not to know both the physical and moral nature of his acts, such that he did not know that what he was doing was wrong according to the ordinary standards of right and wrong adopted by reasonable persons or whether he was not able to reason, with some modest degree of calmness, as to the moral quality of what he was doing. All of the psychiatric evidence points clearly to the conclusion that the appellant knew what he was doing and so knew the physical nature of his acts on 18 December 2009.

Gervasio Da-Pra

1. [106]

   The Crown accepted that at the time of committing the offences, the appellant suffered from a mental illness. However, the Crown contended that the severity of his mental illness fell short of rendering him not responsible for his actions according to law. The psychiatrists all agreed that at the time of committing all of the offences, the appellant appreciated the nature and quality of his acts. The area of dispute was whether, at the time he attacked his victims, he was able to reason with a moderate degree of sense and composure.

2. [107]

   The Crown relied on the fact that the psychiatrists' opinions in relation to the attack on the appellant's father were based substantially on his own account of what happened. The Crown contended that the jury's acceptance of the partial defence of substantial impairment, rather than the full defence of mental illness, was open for the following reasons:

3. [108]

   The jury did not disregard the psychiatric evidence. Rather, they accepted that the appellant suffered from an abnormality of mind, arising from an underlying condition that substantially impaired his ability to judge whether his actions were right or wrong. The Crown contended that the Court, exercising a cautious and conservative approach, and giving the jury verdict the weight that it deserves, would not be convinced that the jury had come to a wrong conclusion and ought not to disturb the jury verdict in relation to the manslaughter of Gervasio Da-Pra, bearing in mind that the appellant carries the onus of proof on the issue of mental illness.

4. [109]

   The appellant contended that it was clear beyond dispute that the verdict in relation to the charge of killing his father was unreasonable and cannot be supported. He pointed out that there was no challenge to the evidence that he had delusional beliefs. Further, he contended, all three psychiatrists concluded that at the time that he killed his father, he did not know that what he was doing was wrong.

5. [110]

   Clearly enough, the jury accepted the psychiatric evidence that the appellant suffered from an abnormality of the mind that substantially impaired his capacity to judge whether his actions were right or wrong. They did not accept, on the balance of probabilities, that, at the time he killed his father, he did not know that it was wrong to do so. The question is whether that conclusion is unreasonable in the light of the evidence summarised above or whether the evidence was so strongly in favour of the view that the appellant was mentally ill that he was not responsible according to law.

6. [111]

   According to all of Dr Allnutt, Dr Nielssen and Dr Reutens, the appellant had the defence of mental illness available to him in relation to the killing of his father. I was originally disposed to conclude that there were factors that would justify the jury's disregarding the psychiatric evidence.

7. [112]

   First, all of the opinions of the psychiatrist are based on unreliable histories provided by the appellant. It is certainly arguable that the strength of the factual assumptions that underpinned the psychiatric conclusions regarding the charge of killing his father are greatly undermined by the unreliability of the appellant's versions of events that can be tested against independent evidence. There were numerous instances where his versions of the circumstances of the attacks were incomplete or inaccurate when tested against such evidence. Secondly, the acts committed by the appellant after he had killed his father were capable of being characterised as being calculated and rational acts.

8. [113]

   On the other hand, there was ample evidence to support a finding that the appellant held a delusional belief that, in killing his father, he might be able to save his mother. The other witnesses corroborated the appellant's evidence of his delusion that his family had been the subject of extortion and death threats.

9. [114]

   The jury had the advantage of seeing and hearing the evidence as it was given by the witnesses, particularly the expert witnesses. The evidence concerning the appellant's mental illness in relation to the killing of his father was unanimous.

10. [115]

    The jury is entrusted with the primary responsibility of determining guilt or innocence. Nevertheless, I am persuaded on balance that, at the time that he killed his father, the appellant was suffering from a defect of reason caused by a disease of his mind, such that he was unable to reason about the matter with a moderate degree of sense and composure. While he knew that killing was wrong, he did not know that what he was doing was wrong in the relevant sense. I would therefore be disposed to intervene under s 7(4) of the Appeal Act.

VW and EW

1. [116]

   Although the charges of causing grievous bodily harm to VW and the murder of EW are separate, they are sufficiently close together in time that it would be artificial to distinguish between them when considering the appellant's mental capacity. The two charges are part of a single event.

2. [117]

   The appellant accepted that in relation to the charges involving EW and VW, it was technically possible, on the basis of Dr Allnutt's evidence, to argue that the defence of mental illness was not made out. He said that, nevertheless, the verdicts in relation to those charges were unreasonable and cannot be supported because of the tenuous basis for the convictions after taking into account all the relevant evidence. He said that the basis for the convictions on the charges involving EW and VW can only be that the appellant was mentally ill at the time of killing his father earlier in the morning but not mentally ill or substantially impaired later in the morning. The relevant time period for all three charges was between 7.30am and noon on 18 December 2009.

3. [118]

   The appellant contended that the basis for the jury's verdicts was fundamentally flawed because they must be based upon the following factual assumptions, which the appellant seeks to impugn:

4. [119]

   The verdicts in relation to the charges involving EW and VW do not indicate that the basis of the verdict was that the appellant was mentally ill at the time of killing his father, but not mentally ill or substantially impaired later in the morning when he killed EW. Rather, the verdicts indicate that the jury found, on the balance of probabilities, that the appellant was substantially impaired by his abnormality of mind when he killed his father, though still knew that his actions were wrong, but that when he killed EW a few hours later, his impairment was not so substantial as to warrant liability for murder being reduced to manslaughter.

5. [120]

   The first six of the matters that the appellant impugns form the basis for Dr Allnutt's opinion that he did not have a defence of mental illness available to him in relation to his attack on EW and VW. There was a firm evidentiary foundation for each of those six matters. The trial judge, in his summing up, said that there was clearly evidence that could be said to argue for the view that the defence of mental illness was not made out in relation to the offences involving EW and VW. His Honour said that that was a question on which he was not proposing to express a view, since it was a matter for the jury. The task of this Court in relation to the second and third grounds of appeal is to ascertain whether it was open to the jury to be satisfied as to the relevant matters by reference to the complaints made on appeal.

6. [121]

   It was open to the jury to prefer the evidence of Dr Allnutt to that of Dr Nielssen and Dr Reutens. Thus, as indicated above, Dr Allnutt gave evidence to the following effect:

7. [122]

   Dr Allnutt was asked to assume that the appellant attended the W residence to divert suspicion from himself in relation to the death of his father and that he did so by trying to make it appear that there had been a home invasion. The evidence supports that assumption. When he was pulled from the burning car, the appellant admitted killing his father and attacking the Ws. When asked why he had done that, he said that he "did not mean to". When asked why he had killed EW, he said that it was not meant "to happen like that" and that, after he killed his father, he "went over there to get an alibi". In the note that he handed to the nursing staff at the hospital he said that, after killing his father, he was "looking for a way to create a diversion". On 19 February 2010, when he spoke to Mr Owens, the nurse, he said that after the incident with his father he decided he needed money and went next door. On 20 February 2010, the appellant told Dr Goh that he thought he would go next door and "pretend that a home invasion had occurred there, take money and then leave the city".

8. [123]

   The appellant told Dr Nielssen that after killing his father and taking his body to the shops, he called on the Ws about 15 minutes later to "create an alibi". He told Dr Allnutt that he thought of an alibi as he walked back home, namely to go to the neighbours and tell them that his car had broken down and he needed to use their phone. He was going to call his father to establish the alibi.

9. [124]

   The evidence in support of the assumption that the appellant's thinking included the intention of obtaining money, so he could leave the area and not be arrested in relation to the killing of his father, is found in his statements to Mr Owens, Dr Goh and Dr Allnutt, as indicated above. The evidentiary basis for the proposition that the attack on the Ws was consistent with the intention of obtaining money and that he took steps to create the impression of a home invasion is found in his statement to Dr Goh that he would pretend that a home invasion had occurred there, take money and then leave the city. There was unchallenged evidence that the appellant ransacked the W residence.

10. [125]

    The evidence is clear that the attacks on EW and VW were more than momentary slashing type attacks. EW suffered extensive bruising to the lips and chin, which the pathologist who conducted the post-mortem thought was unlikely to have been caused by only one blow. She suffered a fracture to her skull and other bruising in the area that could have had a number of causes, including falling to the floor. There was also patent bruising to the upper chest. The appellant sliced across EW's throat twice, causing lacerations that killed her almost instantly. One cut extended through the back of her mouth to the spine. The wound included marks in the adjacent skin, suggesting a sawing motion of the implement that caused the injuries. The blood spatter indicated that EW was supine when her throat was cut. In addition, VW suffered a fractured eye socket, a fractured jaw, a severed trachea and slash wounds to her throat area. The trial judge noted in his summing up that VW's evidence and the injuries to EW seemed inconsistent with the appellant's account of just lashing out, or slashing, with a knife.

11. [126]

    It was open to the jury to reject the appellant's evidence that he believed he was being followed. He did not give evidence at the trial, so the jury did not have the benefit of hearing his own sworn evidence tested by cross-examination. It is significant that he made no mention of believing he was being followed until some 15 months after the offences occurred. The first time that he mentioned his belief that he was being followed was when he spoke to Dr Nielssen on 17 March 2011. At that time, he had already decided to plead not guilty by reason of mental illness.

12. [127]

    The jury was entitled to reject the appellant's evidence that he mistook EW for an attacker. He made no mention of such a belief in any of his contemporaneous explanations for his actions. He did not raise that matter until he had decided to plead not guilty by reason of mental illness. The versions that he gave some 15 months later, after having decided to plead not guilty by reason of mental illness, were unsworn, made out of court and were self-serving. It was open to the jury to conclude that the appellant did not, at the time of the offences, believe that he was being followed or that EW was an attacker.

13. [128]

    The appellant asserts that the analysis of "an island of sanity in a sea of madness" is psychiatrically tenuous. The contention appears to refer to Dr Allnutt's opinion that when the appellant killed his father, he was suffering a defect of reason such that he did not understand that his actions were wrong, but that when he killed EW a short time later, he did. Dr Allnutt did not use the quoted phrase and it was not put to him in cross-examination. Dr Nielssen used the phrase in cross-examination. When invited to comment on the scenario upon which Dr Allnutt's opinion was based, Dr Nielssen responded that the problem with the scenario was that it assumed that somehow the appellant was cured of being mentally ill in that he had a lucid interval or a kind of "island of sanity in a sea of madness".

14. [129]

    Dr Allnutt's evidence as to his reasoning leading to his conclusion that when the appellant attacked the Ws he may not have had a mental illness defence available to him occupied a considerable time in the trial. He was cross-examined both by counsel for the appellant and answered questions put to him by the trial judge, in the course of which he explained his evidence and maintained his opinion. There was no suggestion that Dr Allnutt was not an appropriately qualified and experienced forensic psychiatrist. In circumstances where there was competing expert evidence on an issue on which the appellant bore the onus of proof, it was open to the jury to prefer Dr Allnutt's evidence to that of Dr Nielssen and Dr Reutens. That was not unreasonable.

15. [130]

    When all of the evidence is considered, it is apparent that the jury's rejection of the defence of mental illness and the partial defence of substantial impairment in relation to the offences against EW and VW was open to them and was not unreasonable. The Court is in no better position than the jury to determine the issue as to mental illness. The appellant carried the onus of proof on the issue of mental illness. The Court should adopt a cautious and conservative approach to its task and give the jury's verdict due weight. When the evidence as a whole is considered, it is not apparent that the jury erred.

16. [131]

    The psychiatric evidence indicates that the appellant was suffering from psychosis. That, however, is not sufficient to establish the defences upon which he relies. He must establish, on the balance of probabilities, that when he killed his father he did not have the capacity to reason, with some degree of calmness, as to the moral quality of what he was doing. He must also establish, on the balance of probabilities, that when he attacked EW and VW he was incapable of reasoning, with some degree of calmness, as to the moral quality of what he was doing.

17. [132]

    The appellant has not demonstrated that the verdicts were unreasonable or not supported by the evidence. Grounds 2 and 3 should be rejected.

Conclusion on the Conviction Appeal

1. [133]

   There was no error in the trial judge's direction in relation to the charge involving the death of the appellant's father. However, the Court should exercise the power conferred by s 7(4) of the Appeal Act in relation to that conviction.

2. [134]

   On the other hand, the Court should not exercise the power conferred by s 7(4) in relation to the other two convictions. It follows that the appeal against conviction in respect of those offences should be dismissed. It is therefore necessary to consider the Crown's appeal against sentence.

The Sentence Appeal

1. [135]

   The Crown contends that the sentences individually and the sentences as aggregated fail to reflect the very serious criminality of the offending and, accordingly, are manifestly inadequate. The sentences for each offence may be summarised as follows:

2. [136]

   The effect is that the sentence for the attempted murder of VW is almost entirely subsumed within the sentences for the manslaughter of Gervasio Da-Pra and the murder of EW. Only six months of the aggregate non-parole period is referable to the attempted murder of VW.

3. [137]

   The grounds of appeal relied on by the Crown may be summarised as follows:

   1. (1)

      The sentence imposed in respect of the murder of EW was manifestly inadequate in so far as the sentencing judge failed to give effect to the jury verdict in relation to the murder;

   2. (2)

      The sentence imposed in respect of the murder of EW and the sentence imposed in respect of the attempted murder of VW were manifestly inadequate in so far as the sentencing judge failed to assess properly the objective seriousness of the murder of EW and the attempted murder of VW;

   3. (3)

      The sentence imposed in respect of the murder of EW and the sentence imposed in respect of the attempted murder of VW were manifestly inadequate in so far as the sentencing judge failed to give appropriate consideration to the standard non-parole periods and maximum penalties for the murder of EW and the attempted murder of VW;

   4. (4)

      The sentencing judge erred in his approach to the appellant's mental illness, leading his Honour to impose sentences that were, in the circumstances, manifestly inadequate;

   5. (5)

      The sentencing judge erred in reducing the sentences imposed on the appellant pursuant to s 22A and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act);

   6. (6)

      The sentencing judge erred in failing adequately to accumulate the three sentences, leading to a manifestly inadequate total sentence and a manifestly total non-parole period; and

   7. (7)

      The sentences imposed were, in the circumstances, manifestly inadequate.

4. [138]

   The Crown contends that the sentencing judge's sympathy for the appellant's mental illness ultimately overwhelmed his Honour's consideration of the objective seriousness of each of the offences and diverted his Honour from making a proper assessment of their gravity. The result, the Crown contends, was individual sentences and a total aggregate sentence that were manifestly inadequate. Since I conclude below that the sentencing judge erred in failing adequately to accumulate the sentences involving VW and EW and that the sentences imposed were manifestly inadequate, it is unnecessary to consider grounds 1 to 5. However, before dealing with the Crown's grounds of appeal, I should say something about the sentencing judge's remarks on sentence.

The Sentencing Judge's Remarks on Sentence

1. [139]

   The Crown submitted that the appellant's actions at his parents' home after killing his father were undertaken with a view to diverting suspicion from himself and to gain time for him to leave Sydney. The Crown submitted that the jury accepted that. The Crown case in relation to the offences against VW and EW was that the appellant demonstrated a degree of rationality, such that neither the defence of mental illness nor that of substantial impairment had been established. The Crown referred to inconsistencies between the appellant's various versions of what happened in the W residence, on the one hand, and the evidence of VW, on the other, which was accepted by the sentencing judge.

2. [140]

   The Crown contended to the sentencing judge that the jury's rejection of the defence of mental illness and substantial impairment in relation to the murder of EW, coupled with the very great heinousness of the offence, indicated that a life sentence was warranted under s 61 of the Sentencing Act. The Crown contended that the attempted murder of VW fell into the worst-case category. The Crown submitted that in the absence of a life sentence, significant accumulation was required, having regard to the high degree of criminality involved in each offence committed on different victims.

3. [141]

   The only evidence as to the circumstances of the death of Gervasio Da-Pra came from the appellant himself. The sentencing judge said that the account that the appellant gave to Dr Allnutt was consistent with the other evidence and therefore could be accepted. However, his Honour preferred the evidence of VW to the evidence of the appellant. His Honour found that the appellant's various accounts concerning his attack on the Ws were inconsistent with VW's evidence.

4. [142]

   The sentencing judge accepted that EW had suffered repeated blows to her lips and chin and that she suffered a fractured skull. The uncontested medical evidence was that EW had received at least two very forceful blows to her head, both front and back, which were probably not caused by falling to the floor. She also received multiple blunt force injuries to her neck, in addition to the wounds caused by the knife. The medical evidence indicated that it was likely that the blow to her skull occurred first, followed by multiple blows to the face, head and neck, with the cutting of the throat coming last. His Honour accepted that EW was supine at the time that her throat was cut. His Honour found that the appellant's assertions that he just lashed out with the knife when EW ran from behind could not be accepted.

5. [143]

   While it is not entirely clear, the sentencing judge appears to have accepted that the appellant went to the W residence with a view to obtaining an alibi. His Honour rejected the Crown's submission that he went to the W residence to obtain money, notwithstanding his own statements to that effect. His Honour found, however, that the appellant did not have a premeditated intention to attack or kill the Ws before he attended their home. His Honour considered that the most likely explanation for the appellant's immediate invasion of the W residence was that he thought he was being followed and wished to hide. On the other hand, his Honour observed that the first mention of the blue car was in March 2011. Accordingly, the suggestion that the appellant went to the W residence to hide because he thought he was being followed should be given appreciably less weight than if those matters had been mentioned earlier. It is significant that the appellant had decided to plead not guilty by reason of mental illness before his first mention of the blue car.

6. [144]

   The appellant was armed with a hunting knife when he entered the W residence. He used the knife to attack VW and to kill EW. The sentencing judge observed that the immediacy of the attack on EW and VW raised the possibility of premeditation. However, his Honour found that the illogicality of the attack suggested that the appellant felt himself to be under attack. His Honour observed that the viciousness of the attacks on the Ws was so awful that it militated in favour of something having gone badly awry in his mental processes, particularly in light of his non-violent past.

7. [145]

   The sentencing judge accepted the Crown's submission that the basis for the jury's rejection of the defence of mental illness in the case of Gervasio Da-Pra was most likely a finding that he had failed to establish that he did not know that what he was doing was wrong. His Honour found, for the purpose of s 23A of the Crimes Act 1900 (NSW) (the Crimes Act), that the appellant's capacity to judge whether his actions in killing his father were right or wrong was substantially impaired. His Honour also found that the appellant's capacity to control himself at the time of killing his father was also substantially impaired, notwithstanding the absence of any psychiatric or other evidence on that question. His Honour found that, at the time of the attack on the Ws, the appellant's capacity to judge whether his actions were right or wrong, and to control himself, was substantially impaired by an abnormality of mind. However, in light of the jury's verdict, the impairment was not so substantial as to warrant liability for murder being reduced to manslaughter.

8. [146]

   The sentencing judge attached significance to the following matters in relation to the appellant's subjective circumstances:

9. [1]

   he was 45 years old and had no criminal record;

10. [1]

    numerous witnesses said that he had never been violent or threatened violence in the past;

11. [1]

    his part-time employer in a window tinting business provided a reference indicating that he was always punctual and reliable, energetic, honest and respectful and was a true tradesman; and

12. [1]

    he was deeply sorry for his offences, as demonstrated by the note handed to Fairfield Hospital and his attempted suicide.

13. [147]

    The sentencing judge considered that subject to two qualifications, there was no reasonable possibility of the appellant re-offending, given his general attitude and conduct prior to the offence and also after his arrest. While in prison he has always been compliant, polite and co-operative. The first qualification was that he must remain on anti-psychotic medication as long as treating psychiatrists require him to do so. The second qualification is that he must remain abstinent from alcohol, marijuana and other drugs.

14. [148]

    The sentencing judge took into account, as extra-curial punishment, the appellant's self-immolation and the severity of the burns he suffered. His Honour also afforded an unquantified discount under s 22A and s 23 of the Sentencing Act by way of rewarding the appellant's facilitation of the administration of justice and his assistance in the investigation of the offences.

15. [149]

    The sentencing judge noted the standard non-parole period of 25 years applicable to the murder of a child and of 10 years for attempted murder, as well as the possibility of a life sentence being imposed pursuant to s 61 of the Sentencing Act. His Honour referred to the principles of general deterrence and the kindred concepts of retribution and punishment, which should be given very little weight in the case of an offender suffering from a mental disorder. His Honour held that, because of the appellant's schizophrenia, general and personal deterrence should be given little weight. His Honour found that no further custodial time was necessary to further the appellant's reform or rehabilitation and that the protection of the community did not require further custodial time. His Honour considered that it was only retribution that could justify any further substantial time in custody.

16. [150]

    The sentencing judge referred in general terms to the principles concerning the application of maximum penalties, including that they are reserved for worst-case offences. His Honour did not make any formal finding of objective seriousness in relation to any of the three offences. His Honour did not give consideration to the significance of the differences in the appellant's moral culpability in the light of the different verdicts of the manslaughter and murder.

Ground 6 - Adequate Accumulation

1. [151]

   The Crown contends that the sentencing judge erred in failing to accumulate the sentences adequately, which led to a manifestly inadequate total sentence and a manifestly inadequate total non-parole period. The Crown accepts that in structuring the sentence as he did, the sentencing judge was exercising a discretion. The Crown complains, however, that his Honour failed to have regard to the essential consideration, namely, the need for the sentences as a whole to reflect adequately and proportionately, in their totality and structure, the criminality of the offences (see R v Amacha [2010] NSWCCA 180 at [68]).

2. [152]

   The appellant emphasises that questions of accumulation are, subject to the application of established principle, discretionary. He accepts that it is important that an appropriate sentence be imposed in respect of each offence and that the total sentence imposed properly reflect the totality of the criminality (see R v Wilson [2005] NSWCCA 219 at [38]). However, he says, the Crown has not established error in the sentencing judge's approach.

3. [153]

   There is no general rule for determining whether sentences ought to be imposed concurrently or consecutively. Rather, that question is to be determined by the application of the principle of whether the sentence for one offence comprehends and reflects the criminality for the other offence or offences.

4. [154]

   If there would be a risk that combined sentences would exceed what would be warranted to reflect the total criminality of the offences involved, the sentences ought to be concurrent. However, if the sentence for one offence does not comprehend and reflect the criminality for the other offence or offences, the sentences should be at least partly cumulative. Otherwise, there would be a risk that the total sentence will fail to reflect the total criminality of the offences (Cahyadi v R [2007] NSWCCA 1 at [27]).

5. [155]

   Neither the total sentence nor the total non-parole period reflects the total criminality of the appellant's offences. The overall result is disproportionately lenient for the three crimes that he committed, two of which resulted in death and one of which resulted in serious injuries. In particular, the imposition of an almost wholly concurrent sentence in relation to the offence against VW fails to acknowledge the extreme harm done to her as a separate victim.

6. [156]

   While it is necessary to avoid a crushing sentence, public confidence in the administration of justice requires the Court to avoid any suggestion that there has been some kind of discount for multiple offending (see R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159 at [18]). In the present case, a proper recognition of the extreme seriousness of each of the three offences committed by the appellant, each of which involved a different victim, required a greater degree of accumulation of the sentences. It follows that this ground of appeal is made out.

Ground 7 - Manifest Inadequacy

1. [157]

   The Crown contends that the sentences imposed for the murder of EW and the infliction of grievous bodily harm with intent to murder VW were, in the circumstances, manifestly inadequate. The Crown says that neither the sentence imposed for each offence nor their aggregation serves to denounce sufficiently the appellant's criminal conduct.

2. [158]

   The Crown contends that the objective gravity of the offences against EW and VW has been rendered inconsequential by the great weight given to the appellant's mental illness, which, he contends, became the dominant and controlling factor on sentencing. The Crown says that the subjective features of the appellant's case overwhelmed the objective seriousness of the offences.

3. [159]

   The Crown contends that while the jury must be taken to have concluded that each offence occurred at a time when the appellant had insight into his behaviour, the sentencing judge adopted an approach that was contrary to that conclusion. The Crown maintains its position that the offences against EW and VW were the result of the appellant's stated aim of setting up an alibi for himself and creating a diversion.

4. [160]

   Inadequate sentences, just as much as excessive sentences, are likely to undermine public confidence in the ability of the courts to play their parts in deterring the commission of crimes (see Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306). The Crown contends that the sentences imposed in respect of each offence as well as the aggregate sentence are manifestly inadequate by reference to the objective facts, the maximum penalties and the standard non-parole periods. It contends that the appellant's subjective case did not require the sentences to be ameliorated to the significant degree that each was ameliorated: there was insufficient accumulation of the sentences having regard to the totality of the criminality involved.

5. [161]

   The appellant contends that intervention by this Court is not warranted simply because the Court might have exercised the sentencing discretion in a manner different from the manner of the sentencing judge. This Court should not merely substitute its opinion as to the appropriate sentence for that of the sentencing judge. It may interfere only where error, either latent or patent, is shown (see Wong & Leung v The Queen [2001] HCA 64; 207 CLR 584 at [58] and [109]). The appellant says that no error, either latent or patent, has been demonstrated by the Crown.

6. [162]

   An appeal against the leniency or inadequacy of the sentence is concerned with establishing matters of principle for the governance and guidance of courts having the duty of sentencing convicted persons. However, the power should only be exercised in order to achieve what is necessary to avoid manifest inadequacy or inconsistency in sentencing, namely, where the sentence is definitely outside the appropriate range for the case in hand (see Everett v The Queen [1994] HCA 49; 181 CLR 295 at 299-300). The appellant contends that the Crown has not demonstrated that the sentences are outside the appropriate range. He contends that the overall sentence was within the appropriate range, having been imposed after due consideration of the particular circumstances of the offences and the offender. He says that neither the process of fact finding, nor the identification and application of appropriate legal principles, demonstrates any error and that the sentences themselves and the overall sentence do not support the conclusion of error by way of inadequacy.

7. [163]

   The appellant contends that even if the Court concludes that error has been established, the Court should exercise its discretion not to intervene and re-sentence him, having regard to the delay and the effect of re-sentencing on progress towards his rehabilitation. He says that to the extent that the Court may be disposed to uphold the Crown's appeal, the sentencing outcome is not such as would dispose the Court to exercise its discretion to intervene and re-sentence him.

8. [164]

   The Court has a discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient. Various circumstances may combine to produce injustice if an appeal were to be allowed. Such circumstances include delay in the hearing and determination of the appeal, the imminent or past occurrence of the offender's release on parole and the effect of re-sentencing on progress towards the offender's rehabilitation. Such circumstances are relevant to the exercise of the residual discretion that the Court has. The guidance afforded to later sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual (see Green v The Queen [2011] HCA 49; 244 CLR 462 at [1] and [43]).

Conclusion as to Sentence Appeal

1. [165]

   In all of the circumstances, while I have some reservation in reaching a conclusion different from that reached by such an experienced and respected trial and sentencing judge as R S Hulme J, I consider that, in the light of the jury's verdicts in relation to the offences involving EW and VW, his Honour erred as to the sentence imposed in respect of the murder of EW and the accumulation of the sentence in relation to the attempted murder of VW. Further, I do not consider that there should be any discount under s 22A and s 23 of the Sentencing Act.

2. [166]

   The sentence appeal should be allowed. In the circumstances, it is appropriate for this Court to re-sentence the appellant.

Re-sentence

1. [167]

   It is necessary to re-sentence the appellant for the murder of EW and the attempted murder of VW. I do not consider that the present case is one in which the Court should exercise its discretion not to interfere in the sentences imposed by the sentencing judge.

2. [168]

   It is necessary to embark on the sentencing of the appellant for horrific crimes that he has committed against the observations made in dealing with the grounds of appeal. There are several aggravating factors that must be noticed at the outset. Both crimes involved quite extraordinary violence on two innocent females. Both were vulnerable in that one was over 70 years of age and the other was no more than 12 years of age. The crimes were unprovoked and were committed in the home of the victims. They were committed with a weapon in circumstances that are without any possible excuse.

3. [169]

   The appellant knew that what he was doing was wrong. He knew that his actions involved the attempted taking of a human life and the actual taking of a human life. While he may not have intended to commit the crimes that he committed when he first set off with a view to establishing an alibi in connection with the killing of his father, that is a matter not without doubt. His purpose in going to the W residence was to endeavour to create circumstances that would help him evade the consequences of the killing of his father. It is open on the evidence to conclude that he went to the W residence with the intention of doing whatever might be necessary to achieve his purpose. Knowing that he had killed EW and believing that he had killed VW, he set about endeavouring to cover his traces by staging a break-in.

4. [170]

   After endeavouring to create the appearance of a break-in, the appellant left the W residence and travelled some distance to the Central Coast. It may be that at that stage, the enormity of his conduct came home to him, such that he wrote the notes described above. He subsequently showed remorse and the fact that he endeavoured to kill himself indicates a degree of remorse as well.

5. [171]

   The psychiatric evidence indicates that the appellant is undertaking treatment. Whether he will stay free of drugs and alcohol is not a matter about which a firm view could be formed.

6. [172]

   The horrific nature of the appellant's crimes is such that the community would expect a very significant punishment to be imposed. He has been convicted of three crimes. In a sense, the killing of his father is separate from the unprovoked attack on VW and EW. There should be no concurrence as between the killing of Gervasio Da-Pra, on the one hand, and the attacks on EW and VW, on the other hand. However, it is reasonable to treat the attacks on VW and EW as part of a single course of conduct. To that extent, it would be appropriate that the terms of imprisonment imposed for those crimes be served partly concurrently.

7. [173]

   I have had the advantage of reading in draft form the joint reasons of R A Hulme and Bellew JJ, and in particular their Honours' reasons for concluding that the sentence for the attempted murder of VW should be one of 10 years and that the sentence for the murder of EW should be one of 20 years, for the reasons given by their Honours. While I might have been disposed to impose a harsher sentence in relation to the murder of EW, I agree with their Honours, for the reasons given by them, that the sentences proposed by them are appropriate. Accordingly, I agree with the orders proposed by R A Hulme and Bellew JJ.

8. [174]

   R A HULME and BELLEW JJ: Renzo Da-Pra was found guilty by a jury on 21 May 2012 of the manslaughter of his father, Gervasio Da-Pra, the murder of a 12 year old girl who lived next door, EW, and the causing of grievous bodily harm with intent to murder the girl's grandmother, VW.

9. [175]

   Mr Da-Pra had been indicted for the murder of his father. The verdict of guilty of manslaughter was based upon the jury being satisfied that the partial defence of substantial impairment by abnormality of mind (see s 23A of the Crimes Act 1900 (NSW)) had been made out.

10. [176]

    On 4 June 2012 Mr Da-Pra was sentenced by R S Hulme J to a total term of imprisonment for 20 years with a non-parole component of 15 years: R v Da-Pra [2012] NSWSC 607.

11. [177]

    Mr Da-Pra seeks to appeal in relation to his conviction for each of the three offences on the following grounds: 1. The trial judge erred in failing to direct the jury, in relation to Count one, that they must not reject unanimous medical evidence in the absence of other evidence displacing or throwing doubt upon it. 2. The verdicts of the jury should be set aside on the ground that the verdicts are unreasonable, or cannot be supported, having regard to the evidence. 3. This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) Criminal Appeal Act 1912 (NSW).

12. [178]

    Leave is required in relation to the first ground because the point was not taken at the trial: r 4 of the Criminal Appeal Rules. Leave is required in relation to the second ground because it does not involve a question of law alone: s 5(1) of the Criminal Appeal Act.

13. [179]

    Ground 3 is unusual in that, if it were established, it is not a ground upon which the Court is authorised by s 6 of the Criminal Appeal Act to quash a conviction. Section 6 is headed, "Determination of appeals in ordinary cases". Ground 3 is reliant upon a provision in s 7 which is headed, "Powers of court in special cases". As the proceeding comes before the Court by virtue of s 5(1), and the only ground of an appeal under that provision that does not require leave is one that "involves a question of law alone", we think the better view is that leave is required in relation to this ground as well. Having said that, nothing significant turns upon it as we are of the view that leave should be granted in relation to the second and third grounds because they raise matters of real substance.

14. [180]

    There is also an appeal by the Crown against the asserted inadequacy of the sentences imposed. More will be said about that later. Whilst dealing with the conviction appeal we will refer to Mr Da-Pra as the appellant.

15. [181]

    The killings of Gervasio Da-Pra and EW, and the infliction of grievous bodily harm upon VW, all occurred on 18 December 2009. The appellant first killed his father and then, a relatively short time later, went to the neighbours' house and attacked the other two.

16. [182]

    A central issue in the trial, and now on appeal, was the appellant's mental illness. It was his contention that he should be found not guilty in respect of each offence on the grounds of mental illness. The jury obviously did not accept that beyond allowing that in relation to his father his mental impairment was so substantial as to warrant liability for the murder being reduced to manslaughter.

The appellant's background

1. [183]

   The appellant was born in 1964 to Ms Elsa Da-Pra and the deceased, Mr Gervasio ("Gino") Da-Pra. He had two younger brothers, Mario and Carlo.

2. [184]

   He was involved in a motor cycle accident at the age of 27 in which he sustained multiple fractures. Thereafter he was in receipt of a disability support pension but he managed to engage in occasional employment as well.

3. [185]

   For a time the appellant lived in Queensland but he would come to Sydney occasionally and would stay at his parents' home in Wetherill Park. They lived in Lamb Close. Their next door neighbour around the corner in Langland Street was Ms VW who lived with her granddaughter, the deceased EW who was aged 12.

4. [186]

   There was evidence in the trial concerning the appellant's good character. It was not challenged by the Crown and it included that he had never threatened violence or exhibited any tendency to violence in the past.

Events leading up to 18 December 2009

1. [187]

   There was a good deal of evidence in the trial about things the appellant did and said in Queensland, en route between Queensland and Sydney, and whilst in Sydney in the lead up to 18 December 2009.

2. [188]

   The appellant was acquainted with Mr Charles Cramp and had worked for him in his window tinting business in Brisbane. On the morning of Monday 7 December Mr Cramp arrived at his window tinting business to find a note under the door from the appellant saying that he had to go to Sydney unexpectedly as his brother had been in an accident. He asked Mr Cramp to look after his dog and told him that he would speak to him later.

3. [189]

   The appellant travelled to Sydney with a friend, Mr Danny Walton, also known as "Joe". Mr Walton said that prior to this the appellant had told him that his family had been "extorted" by a person named Boris who was from the Strangers Motorcycle Club. (The appellant had been a member of this club about 20 years before.) This person was threatening his family and had demanded "millions". He was going to kill the appellant's father and the whole family. Mr Walton said the appellant had mentioned this about two years before and had said it more than once in that period. He advised the appellant to go to the police.

4. [190]

   At some point the appellant told Mr Walton that his father had said that the police would look after them as his father had kept notes of all of the things that had happened to him concerning the extortion. Also, whilst they were in Sydney, the appellant had mentioned that he might become violent in the protection of his family.

5. [191]

   Mr Robert O'Keefe is Mr Walton's stepbrother. Mr O'Keefe gave evidence of the appellant and Mr Walton arriving at his home in Sydney on 8 December where they both stayed the night. He was given to understand the appellant planned to stay at his parents' home from the following night. He described the appellant as being generally quiet and kept to himself. In cross-examination, Mr O'Keefe said that he could tell there was something wrong with the appellant: he appeared as if he had a brain injury; he spoke slowly; and he would sit out the front of the house and talk to himself.

6. [192]

   The trio went to the Milperra Hotel for lunch on 9 December. The appellant arrived late. Mr O'Keefe said that he heard the appellant telling Mr Walton that he had been followed all day.

7. [193]

   While they were in Sydney the appellant asked Mr Walton if he could find out where Boris lived. Mr Walton knew him as the president of the Strangers Motorcycle Club. He made an inquiry but was unsuccessful.

8. [194]

   Ms Elsa Da-Pra, the appellant's mother, said that in the period leading up to 18 December 2009 he had been drinking too much. He was drinking with his friend who was a mechanic (i.e., Mr Walton). He would not act drunk but he was very tense. There was one occasion when he rang her up and had told her with some persistence that she should go overseas. He said he had heard that someone wanted to kill himself and his parents. Ms Da-Pra had no idea why he said this.

9. [195]

   Ms Juanita Da-Pra, the appellant's sister-in-law, said that in early December the appellant asked her daughter to make purple paper flowers. He later gave Juanita one of the flowers. He wrote family names on it, hers and her husband Mario's name. He said, "If someone comes knocking on the door, hand them this and see if it is enough. If it is, I might be able to write someone else's name down and save someone else".

10. [196]

    Mr Luis Palma had known the appellant since 1999 but saw less of him after the appellant moved to Queensland. On evening of 10 December the appellant came to his home in Horsley Park. After he left, Mr Palma's wife showed him a paper flower that the appellant had given to her. He said that his niece had made it. In giving it to Ms Palma he had said, "This is something to remember me by".

11. [197]

    From late afternoon on 11 December through to the morning of 12 December Mr Palma had a number of phone conversations and an exchange of text messages with the appellant. In the first he mentioned that he was heading back to Brisbane. A short time after that he spoke of having to have a meeting at home because "someone is saying something. I don't know who to believe". In another call he said, "We'll sort it out, everything will be fine". About an hour later he called again and Mr Palma said that he sounded upset or down. He said, "If you don't hear from me between now and lunch time tomorrow, can you please go past my oldies' place, check to see if they're all right".

12. [198]

    In the early hours of 12 December Mr Palma received a text message from the appellant which said, "My brother's phone number is ... just in case". Later that morning he sent Mr Palma a text and they then had a phone conversation in which the appellant conveyed that everything was alright. Mr Palma said that the appellant sounded to be in better spirits. In the earlier conversations he was "not his usual self"; he seemed a little more nervous than usual; his mind was elsewhere. Generally as to his contact with the appellant in this period Mr Palma said that there were some incidents which made him think the appellant had become paranoid and his presentation was uncharacteristic.

13. [199]

    Mario Da-Pra saw the appellant at a family dinner at their parents' home on Friday 11 December. He said the appellant had a friend with him, a mechanic named "Joe". He said the appellant did not talk much; he appeared nervous; there was something on his mind.

14. [200]

    Mario's wife, Juanita, was at the family dinner. She gave evidence that the appellant told her, "People are watching the house. People are after me and Gino." He also said that "Joe is really here to protect us".

15. [201]

    Mr Walton said that he returned to Brisbane with the appellant. Other evidence indicated that they left Sydney on 12 December. They had travelled to Sydney together in the appellant's car. They returned to Brisbane with Mr Walton driving that car and the appellant driving another car his father had given him. They were forced to stop on the Central Coast for a few days after Mr Walton was arrested for some traffic offences. Mr Walton said that during this trip the appellant seemed the "same as he always is". There was no mention of his family and extortion. He did say that he was worried about what was going to happen to his family, but that was all.

16. [202]

    Ms Judith Robinson had known the appellant as a good friend from when she lived in Queensland but she had moved to live with her parents on the Central Coast. She received a phone call from the appellant on 12 December. He said that his friend had been pulled up by the police in relation to driving offences (police records confirmed this). She arranged to meet him at the Wyong Leagues Club. The appellant stayed the night at her home at Lake Haven. They went to the Wyong police station the next morning when Mr Walton was released from custody. The pair remained in her company until they left in the evening.

17. [203]

    Ms Robinson agreed in cross-examination that in her statement she had said that when she saw the appellant on 12 December "he just wasn't himself". She thought that something was bothering him badly. She also said that he was sweating a lot.

18. [204]

    The journey to Brisbane was also broken by stopping for an hour or two at the home at Karuah of Elizabeth Austin and Ronald ("Bill") Feeney. Mr Feeney said that the appellant seemed to be in a good frame of mine; he was pretty happy.

19. [205]

    Mr Colin Gross lived in Queensland and was acquainted with the appellant who had lived with him for a time. At some stage in this period he visited Mr Gross. He told him, "You might be getting a visit from two lots of people". Mr Gross asked what was going on and he replied, "It's a visit from two different lots of people, one of them the police. It's about my Dad upsetting someone. These people run the country and they have done something to someone close to my family. They did that just to show that they can do it."

20. [206]

    Mr Gross asked the appellant again what was going on and received the reply, "If you know any more there's a good chance you will get hurt, the less you know the better". The appellant also said, "This is why these people are coming, my address is still listed as your place". Mr Gross persisted in asking what was going on; expressed concern that the appellant had involved him in something he did not know about; and asked whether he should be worried. The appellant said, "I can't tell you any more about it".

21. [207]

    Mr Gross said that the appellant was not acting differently; he was not jumpy or acting out of the ordinary. But this was the first time he had said things like this.

22. [208]

    The appellant returned to the Karuah home of Elizabeth Austin and Bill Feeney around midday on 16 December. He wanted to get rid of his car and gave it to Mr Feeney. He cleared out his belongings and put them into a bag which he asked them to mind. He said he would pick it up next time he was coming past. They gave him a lift to a town just south of Karuah where he said he had another car to pick up.

23. [209]

    Ms Judith Robinson said that she saw the appellant on either 16 or 17 December. He said that he had come from up north. He stayed the night at Lake Haven and left at about 7.00 the following morning.

24. [210]

    Ms Robinson said that on this occasion the appellant appeared exhausted. She said he "wasn't right the whole time I saw him at this stage". He was not his usual self. She asked if he was in some trouble and he replied, "Yeah, yeah, yeah, it's not fixable". He also said, "My father's done something stupid. I'll just go away for a couple of years and it will all blow over. Time will work it out".

25. [211]

    Charles Cramp received a phone call from the appellant on 17 December. He said to Mr Cramp, "I have been delayed, can you look after the dog until after Christmas? I can't get back until after then". Mr Cramp agreed. He asked how the appellant's brother was and was told, "Don't worry about it, it was a pub thing".

26. [212]

    Mr Cramp said that when he saw the appellant earlier in December he did not seem any different. He never mentioned any threats to his family, or money or property being demanded of the family.

27. [213]

    Mario Da-Pra said that the appellant arrived at Mario's home on 17 December and stayed there for the night. It was on either this occasion, or when he had seen him on 11 December, that the appellant had spoken of someone being after the family for something that the appellant had done. He did not say who, but he said that the person was going to kill the appellant, Mario and their parents. In addition, this person was going to take everything that their parents owned including their house. It was going to happen before the end of the year. Mario said that they also discussed the prospect of their parents going overseas.

28. [214]

    Mario Da-Pra then gave evidence of such a conversation taking place on 17 December. It included that the main two people the person was after were their parents but he would also come to Mario looking for their parents. Mario asked the appellant whether he and his family should go away for a few weeks and the appellant replied, "It's not a stupid idea". Mario asked him if he was sure this was real and the appellant said it was 98 or 99 percent. He asked how they could take everything belonging to their parents and the appellant told him that they could arrange for another will to be made up naming other people as beneficiaries.

29. [215]

    Ms Elsa Da-Pra came over to Mario and Juanita's home in the late afternoon of 17 December. Juanita overheard the appellant telling his mother that people were "going to come and kill us and take everything, including our houses". He told his mother, "If properties aren't signed over to them they would torture us".

The appellant's movements and statements on 18 December 2009

1. [216]

   Juanita Da-Pra was woken on 18 December at about 7.30am by the sound of the appellant's car. The offences concerning Gervasio Da-Pra and V and EW occurred at some stage between then and midday.

2. [217]

   Juanita Da-Pra said that the appellant returned to her home about midday and they had a conversation. She tried to find out more about what was going on and she said he repeated the same sort of things about people coming after them. She noted that the appellant had not said anything about his other brother, Carlo, being in danger and she asked him why. He replied that this was because Carlo had no money. But he added that Carlo's wife's family, who were "quite well off", could be in trouble. She asked him who these people were who were going to hurt them but he only referred to them as "someone" and said he did not know who they were. During this conversation he was whispering so that no-one else could hear.

3. [218]

   Juanita Da-Pra said that she received a phone call from the appellant at about 5.00 to 5.30pm but the calling number that came up on her phone was not one that she had in her phone's address book. She said there were other voices and noise in the background. The appellant told her, "Don't lose the flower" and "Delete this number from your phone when you hang up". That was the last she heard from him before his arrest.

4. [219]

   The appellant arrived at the home of Ms Elizabeth Austin and Mr Bill Feeney at Karuah late that afternoon. He asked to make a phone call and Ms Austin lent him her phone. (Phone records showed that a call was made to Juanita Da-Pra on 18 December at 5.33pm).

5. [220]

   Ms Austin said that on this occasion the appellant was sweating profusely and was very agitated, shaking and fidgety. He went to the garage to have a beer with Mr Feeney but she said he then went out the back and stood where his car was parked. At some stage he again asked to use her phone to make a call and she obliged. She did not hear the conversation but when he returned the phone to her he said, "How do I delete this number. I'm not giving the phone back until I delete this number". He refused her offer to delete it. She said he kept the phone for about 15 minutes and must have worked out how to delete the number himself.

6. [221]

   Mr Feeney's assessment of the appellant on this occasion was that "he was quiet and a bit fidgety".

7. [222]

   Ms Austin said that the appellant then changed his clothing and drove away. He took with him the bag that he had previously left behind. Mr Feeney's evidence was that before he left he said "Where is my gear? I'm in some trouble. I won't stay long".

The killing of Gervasio Da-Pra

1. [223]

   Ms Elsa Da-Pra went shopping early in the morning on Friday 18 December 2009. She returned home at 11.50am - 12.00pm and attended to various activities around the house. She noticed her husband's car was missing. At some stage prior to this the appellant had put his father's body in the boot of the car and driven it to the carpark of a nearby shopping centre and left it.

2. [224]

   Later in the afternoon Ms Da-Pra unsuccessfully tried contacting her husband on his mobile phone. Her son Mario came and picked her up at around 6.00pm, by which time she was concerned. Mario told her of the threats the appellant had been speaking about. He tried to contact his father by phone but there was no answer.

3. [225]

   Mario Da-Pra subsequently noticed that the mesh near the handle of a flyscreen door was damaged; it was "ripped open". He also noticed that a computer tower was missing from a computer desk in the garage, although the monitor, keyboard and modem were still there.

4. [226]

   A crime scene examination commenced at some stage the following day (19 December). At about 7.30pm one of the examiners, Senior Constable Matthew Campbell, attended the car park of the Stockland Shopping Centre at Wetherill Park where he examined a car belonging to the deceased, Gervasio Da-Pra. It was locked but after entry was gained the body of the deceased was found in the boot.

5. [227]

   Dr Matthew Orde was the forensic pathologist who conducted post-mortem examinations of the two deceased. He concluded that Gervasio Da-Pra died as a result of blunt force neck injuries. In short, pressure to the neck caused death by asphyxiation, suffocation or the like. He was found to have sustained multiple recent injuries including bruises and abrasions to the head, fracturing of the nasal bones, dense haemorrhage within the soft tissues of the neck, fractures of the laryngeal cartilages and fracturing of the hyoid bone. There was also a fractured rib and various other bruises and abrasions to other parts of the body.

6. [228]

   Dr Orde was asked about what may have caused the blunt force neck injuries. He could not be specific. It could have been "knocks or blows to the body surface by an object or by the body impacting against a hard surface", and that would include contact with a fist.

The killing of EW and wounding of VW

1. [229]

   Ms VW said she had met Gino and Elsa Da-Pra and was aware they had children. She had seen, but had never met, the appellant.

2. [230]

   At some time during the morning of 18 December 2009 Ms W heard the doorbell ring. She was at the kitchen sink and E was in the family room. The front door was open but a security screen door was locked. The appellant said, "I am Renzo, Gino and Elsa's son, I've broken down a couple of blocks away and I am looking for my father".

3. [231]

   When she came to give evidence Ms W could not recall what she had been doing that morning. However, there was evidence that she received a telephone call from a grandson at 9.50am and so the appellant's attendance at the home must have been sometime after that.

4. [232]

   Ms W said that she went to put her hand on the screen door to keep it closed but the appellant wrenched it open, breaking the lock. She said he was talking about something but could not recall what he said. He entered and "sidled along next to the staircase and I sidled along opposite". She later explained that he was facing her and he was moving sidewards. He was very red in the face. He was moving his fingers as if rolling a cigarette but there was nothing in his hands. When they entered the kitchen the appellant grabbed her hand, swung her around and then started punching her. She turned to E and saw that she was at the right-hand end of the family room table closer to the window.

5. [233]

   Ms W tried to "wave [E] out". She then "had a sinking feeling" and lost consciousness. When she later regained consciousness she saw E lying at the opposite end of the family room table from where she had earlier been. Ms W was still in the kitchen. She managed to make her way to near the front entrance where a Telstra mobile phone was being charged and she called triple 0 before losing consciousness again.

6. [234]

   There was evidence that the triple 0 call was made at 7.32pm. Ambulance paramedics and police arrived soon after. The front door was found to be locked but a rear door was ajar. A police officer tried to ascertain from Ms W who was responsible and she managed to convey that it was a neighbour whose name started with "R".

7. [235]

   When Ms W woke up she was in intensive care in Westmead Hospital. She had received emergency surgical intervention for a cut to her throat which severed her larynx and vocal chord which required reconstruction. She also had a fractured left cheek bone and fractures to both sides of the jaw. She was discharged from the hospital on 4 January 2010. Dr Chin was the on call otolaryngology head and neck registrar who was involved in the surgery. He (modestly) gave great credit for the amazing survival of Ms W to the ambulance, emergency unit and anaesthetic staff.

8. [236]

   Dr Orde said that EW had sustained both blunt force bruising type injuries to the soft tissues of the neck together with a large ragged incised wound to the front of the neck extending through the low pharynx (the back of the mouth) and the upper larynx to the depth of the vertebral column. She had also sustained blunt force head injuries with further soft tissue bruises and abrasions, a right-sided skull fracture, bleeding around the brain and bruises to the brain substance.

9. [237]

   In relation to the incised wound to the neck, Dr Orde noted that on the left side four shallow "tails" extended to the adjacent skin. He explained "that's where the implement or implements causing this injury had caused further shallow partial thickness injuries to the skin at the edge of the wound". This indicated more than one motion of the implement, if there was one implement, causing the injury.

10. [238]

    A forensic biologist who was also an expert in bloodstain patterns, Ms Alison Sears, gave opinion evidence that when EW sustained the severe wound to her neck she was laying on her back on the floor in the position where she was eventually found deceased.

11. [239]

    Ms W returned to the home after she was released from hospital. She noticed that there was a problem with the landline telephone connection. An electrician was called and he found that a plug in the lounge room had been smashed and forced into the wall. There was evidence supporting the proposition that this damage occurred prior to 1.29pm on 18 December 2009.

12. [240]

    Aside from the Telstra mobile phone Ms W used to dial triple 0, she also had a Vodafone mobile phone which she last saw on the kitchen bench. It was missing.

13. [241]

    There was evidence that the bedrooms on the upper floor of the home had been ransacked and were in a state of disarray.

14. [242]

    Ms W also said that the house had insect screens, none of which were damaged prior to 18 December 2009. Leading Senior Constable Amy Jackson gave evidence of her subsequent examination of the premises and it included seeing damage to a flyscreen that had been attached to a lounge room window at the front of the house. She also saw damage to flyscreens on a number of windows at the rear of the house.

The appellant's attempted suicide on 20 December 2009

1. [243]

   Between 6.30am and 7.00am on 20 December the appellant approached the front desk of the Fairfield Hospital. He pushed a thick writing pad under the counter window and asked the administration assistant, "Can you take this to the police? Make sure the police get this". He then walked to the exit. The assistant noticed that the notepad smelled of petrol or gasoline and it was bloodstained as well. She took the notepad to the triage nurse who saw that it read, in part, "To whom it may concern, if you're reading this letter, I'm probably dead".

2. [244]

   A short time later there was an explosion inside the appellant's car. Police and fire brigade officers responded quickly. The appellant was removed and placed under arrest. He had multiple severe burns. Detective Sergeant Barnes spoke with him at the scene: "Q. Why did you do it? A. I didn't mean to. Q. Why did you kill the girl? A. It wasn't meant to happen like that. After I did my Dad I went over there to get an alibi and things got out of hand. I panicked then the knife was in my hand and I just started slashing. Q. Why did you go back there? A. I didn't go back. Q. What do you mean? A. After I finished with Dad I went over there. Q. Where's the knife? A. In the bush. Q. Which bush? A. I lost it in the bush last night. I was going to cut myself last night but didn't. I stopped on the side of the road on the way down last night."

3. [245]

   The appellant was taken inside the hospital where he was examined by Dr Emilie Tahtouh. The doctor asked him how he had burnt himself and he replied, "I drove my car to the petrol station and poured petrol all over myself and the car and then set it alight". He was asked why and he said, "I may have killed my father and my neighbour down the street from my house in Wetherill Park". The doctor asked him why would he have done that and he said, "They told me that if I didn't hurt them they would hurt me". He was asked who "they" were, whether they were voices in his head or actual people and he said, "Actual people". He did not elaborate. He was then sedated and treated.

The appellant's handwritten notes

1. [246]

   The appellant wrote notes at some stage after attacking his three victims and before his arrest; one that he handed in at the hospital before his attempted suicide and another that was in a bag he left behind at Karuah. The latter read in part: "I was told (threatened) a few months ago that my parents were to die a bad death soon ... I would have preferred my parents to die more humanely. That left me no choice but to do it myself."

2. [247]

   The handwritten note the appellant gave to the administration assistant at Fairfield Hospital included the following: "I was once told (threatened) that my parents and myself were going to suffer terrible death. I had a time limit where I could have made their passing easier, but at the end of the day the result was going to be the same."

3. [248]

   There was some reference to the other people who were not prepared to assist him (not supported by any other evidence in the trial). It continues: "I was left with having to do it myself. After killing my father I was looking for a way to create a diversion, so I went to the neighbours. I was intending to only threaten them, but between what I had just done and what I had to do, I lost all control & in the frenzy and became a person that even I believe should not exist. I did have a choice of saving my mother as, I was going to die, but now my only mission in life is to make it home & end my life to hopefully show how sorry I am for what took place. In trying to avoid something bad, I have only succeeded to make things so much worse, & what's worse, 2 more innocent victims were added to my list of dead. What I would have done not to have this task at all. Words are unable to explain how I regret my wrongdoings but I can only hope that my actions tonight will at least bring some closure & or comfort to the people, familys [sic] & especially the innocent victims that I regretfully involved. I must now get home & try to complete the task that was once set, & pray that in doing so, will end this tragic event at least for some."

4. [249]

   The note was signed and dated "Sat Night" (presumably Saturday 19 December 2009).

Subsequent statements by the appellant

1. [250]

   A letter written by Dr Danielle Vandenberg to the Department of Forensic Psychiatry, Long Bay Hospital was read by consent. She held the position of Senior Staff Specialist in Consultation-Liaison Psychiatry at Concord Hospital. She set out the history of the appellant having been transferred to the Intensive Care Unit at Concord Hospital on 20 December 2009 after having sustained 30 percent total body surface area mixed partial and full thickness burn injuries. He had also sustained a self-inflicted stab wound to the left arm. She provided a summary of some of the medical treatment he received. Anti-psychotic medication was commenced on 29 December 2009. He was transferred to the Burns Unit at Concord on 31 December 2009. He was interviewed by the psychiatric team on 4 January 2010.

2. [251]

   Dr Vandenberg said that the appellant described a 15 year history of a psychotic illness characterised by persecutory delusions and delusions of reference which had waxed and waned in intensity. He spoke of "someone" who was planning to extort money from his parents and, more recently, from other people in the local community, including neighbours. There had been an intensification of his delusional beliefs in the days leading up to the alleged crimes and he had felt anxious and agitated. The appellant said that he had felt that others were not taking his concerns seriously and the alleged crimes occurred as a result of his perceived need to draw attention to the situation.

3. [252]

   There was no history of hallucinations, either auditory or visual. He denied any disorder of thought. There was no history of sustained mood elevation or depression. There was no history of prior contact with mental health services. He denied any history of head injury.

4. [253]

   Dr Vandenberg opined that the appellant suffered from a chronic psychosis characterised by prominent persecutory delusions suggestive of paranoid schizophrenia. However, there were also the influences of his long term abuse of marihuana and alcohol.

5. [254]

   Brian Owens was a registered nurse employed by Justice Health and worked at the Long Bay Hospital. The appellant was transferred there from Concord Hospital on 19 February 2010. Nurse Owens read a file that had accompanied the appellant to acquaint himself with the history and the medical situation. He then interviewed the appellant. He described the appellant as pleasant and co-operative. He denied any history of self-harm or treatment by a psychiatrist.

6. [255]

   The appellant indicated an awareness of what he was charged with. He used the terminology "Knocking down, knocked down two" and "Seriously hurt another".

7. [256]

   The appellant said that he moved from Queensland to live with his parents at Christmas 2009. He did not get along with his father and they fought all the time. His father did not want his dog to stay. They ended up having a big fight and then the "incident" happened. He then went next door looking for money because he didn't have any money. The little girl screamed and ran past him and he used the knife on her. He said he "didn't want to kill her" and he "then seriously hurt the other one, the grandma". He claimed that he "didn't want to do it" and that it "feels bad". He went to a hospital and tried to kill himself.

8. [257]

   Nurse Owens asked him about trying to kill himself. He said that he did not go to a police station to do it because "they would have stopped him". He did not do it in the bush because he had a letter that had to be found. He had a good friend who was with him several days before the incident and he needed to make sure it was clear his friend had nothing to do with what had happened.

9. [258]

   The appellant made no mention to Nurse Owens of bike gangs or bikies. He also made no mention of his family being extorted for money.

10. [259]

    In cross-examination, Nurse Owens confirmed that his role was to assess the appellant as an "at-risk patient"; to assess if he would be safe or at risk to himself or others. He did not ask the appellant to provide a full account of the events surrounding the incident.

11. [260]

    Dr Huan-Tzin Goh was the psychiatric registrar at the Long Bay Hospital. He spoke with the appellant on 20 February 2010. The doctor described the appellant as tense and nervous "with staring eyes and seemed to be evasive when asked some questions". Dr Goh also noted that he spoke rapidly and gave more detail than was required in his responses to questions. However, he appeared to understand the conversation as it was taking place. He did not appear to be distracted, which would have indicated he might be experiencing hallucinations. Dr Goh also noted that "there was no overt evidence for any on-going psychosis, although this should be kept in mind as a possibility".

12. [261]

    The appellant told Dr Goh that his father would not listen to him about an imminent raid on the house. He said that he stabbed his father in this context. He also said that he thought he would go to the neighbour's house, pretend that a home invasion had occurred there, take money from the house and then leave the city. The girl ran past him while he was holding the knife. He was really sorry it happened. He ruminated on these events for one and a half days; wrote a letter to the police saying he was sorry and blaming someone else; after which he added that he should not have done that. He then spoke of going to the hospital.

13. [262]

    Dr Goh said that he explained to the appellant what the psychotic symptoms of auditory hallucinations, ideas of reference and passivity meant. The appellant denied that he was currently experiencing such symptoms.

14. [263]

    The appellant was asked about his family. He said that his father was a difficult man; "I didn't like him but I respected him". He said, "our tempers would flare up". His father was fixed in his ways and they argued a great deal.

15. [264]

    As with Nurse Owens, Dr Goh confirmed in cross-examination that he was assessing the appellant for whether he presented any risk to himself or others. He was not otherwise determining his psychiatric state as at December 2009. He did not ask him for a full account of the events of 18 December 2009. The appellant had been prescribed an antipsychotic medication yet his train of thought was still hard to follow at times. As at February 2010, Dr Goh could not exclude the possibility of psychosis. In re-examination he said that he did not ask about the possibility of psychosis the previous December.

The defence of mental illness and the psychiatric evidence at trial

1. [265]

   In R v Pratt [2009] NSWSC 1108, which was concerned with a trial of a women for murder, the following summary of the principles relevant to the defence of mental illness was provided (at [15]-[21]): "The only real issue in this trial is whether the accused has available to her the defence of mental illness. It is a matter for her to establish not beyond reasonable doubt but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. Section 38(1) of the Mental Health (Forensic Provisions) Act 1990 provides: If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. The Act does not define the term 'mentally ill'. That is something that must be determined in accordance with the M'Naghten Rules laid down in R v M'Naghten (1843) 8 ER 718: Every man is to be presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong. ... In relation to the concept of a "disease of the mind" which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community. As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong. A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong."

2. [266]

   Three psychiatrists gave evidence at the appellant's trial, namely:

3. [267]

   Because this evidence was of crucial importance to the issues raised at the trial it is necessary to refer to it in detail.

Dr Stephen Allnutt

1. [268]

   Dr Allnutt prepared three reports which were, in large part, read to the jury. The first report was dated 26 July 2011 and was prepared following a clinical evaluation with the appellant on 23 June 2011. On that occasion Dr Allnutt took the following history regarding the offending (commencing at T362 L6): "The alleged offence occurred on or about 18 December 2009. At that stage he was 45, living at home with his parents. He'd been living there for the prior 6 months. Before that he was living in Brisbane and had been there for 2 years. He got tired of sharing with people and thought he should come down to New South Wales. At the time he was on a disability support pension. He'd been on a disability support pension for about 5 to 6 years, secondary to a serious bike accident wherein he had suffered a fractured pelvis, wrist and ankle and subsequently had fused vertebra in his neck. At the material time that the alleged offending occurred, he was not seeing a mental health worker, he had had no contact with a mental health worker and denied prior contact with a mental health worker. He was not taking medication and had no history of previously taking medication. He had taken painkillers in the past, but could not recall the name, but he was not taking any painkillers at the time of the alleged offence. In the time leading up to the alleged offence he was utilising cannabis, half an ounce once a week for the prior 2 to 3 years. He was drinking Grappa in the morning; three to four shots; a 6-pack of beers, a 6-pack of bourbon; and a bottle of wine at night and had been doing this for about a year. He was suffering back pain, but otherwise was not suffering any major medical illnesses at the time. In Brisbane he was unhappy with his housemates: They were not cleaning, they were damaging his property. He was not sure why they were doing this. He said they used to scrape the pots and pans and never cleaned up. He came back from Brisbane in about July 2009 and lived with his parents. In August 2009 he had an argument with a person who took his credits and started playing his machine. This person then went and sat down with a group of bikies; he explained he had been in a bikie club between the age of 21 and 29. At age 27 he was bashed by a rival gang who threatened to harm him if they ever saw him again. At the time that this person took his credit, that is August 2009, he watched the person and he noticed this person sat with a group of bikies. He said he was always paranoid about bikies since his assault. He subsequently decided to leave. After this incident he began to think that he was being followed. In September 2009 someone approached him in an RSL and told him someone, with many contacts was 'pissed of' with him and they were after him. He assumed it was the President of the bikies club. He said he was not sure ... now if this was a real meeting that he had had with this person who gave him this information or whether he dreamed it. In October 2009 he thought he met with the President. He now thought this was also a dream. He said the President told him that he was going to extort his parents, family and friends. He could not recall the time or the date or the venue where this occurred. He said the President told him he was going to kill him and his father if his father did not give them what they wanted. He said he was going to torture his mother if his father did not give them the money and the house. ... He said the president also told him that he would save his mother if the accused killed his father and saved the rest of his family and friends if the accused killed himself. He believed that the president knew where everybody was. He believed that they were tapping his phone. He would hear noises on the phone when he answered the phone and so he believed that the president knew where everybody was - everyone was. He also believed that they were following him. He would see cars up in front of his house and his brother's place, he would hear bikies coming into the street. He said he was having conversations in his head. He said the president told him that he could save two families by giving them a purple flower. In the time leading up to the alleged offence he was hearing voices of the president outside his head. The voices were saying that he had until Christmas and that Boris was coming after his family to make him pay for what ... he had done. He said he had previously almost caused a breakup in the marriage of Boris and other bikie gang members 15 years previously when he was 30. He was unsure whether or not he was receiving any messages from the TV, radio or the newspaper. In the week prior to the alleged offence he gave his sister-in-law a purple flower. He was told to do this by Boris and that if he did this he would save two families. Around the time he had started to carry a knife with him. He thought the bikies might kill him. Boris told him, if he went to the police, more people would die and would kill his family so he could not go to the police. He felt trapped; he saw no options for himself. On the day prior to the alleged offence, he told his brother that people were after his family. He said he had spoken to his mum the week before; and his brother had inquired what was wrong. His brother wanted to know but he could not tell him because he was worried they would be killed if his brother knew. The next morning he woke up feeling anxious and nervous. He wanted to speak to his father to tell him he had to give the bikies what they wanted. He did not know how to tell his father he was going to die, that the bikies were going to kill him. He decided he needed to tell his father, however, to save his mother and he intended to tell his father that the bikies were coming to the house and if he did not give them what they wanted they would kill him and torture his mother. This was about 1 week prior to Christmas and time was running out. He went and spoke to his father; he told him people were going to come to the house demanding his mother. His father did not believe him. He showed his father the knife to prove he was serious. He told him it had to do with Boris and they were coming after the family. ... He and his father started arguing. His father was blaming him. His father thought he was organising the extortion. ... He told his father he had to give him what "they", the bikies, wanted. At this, his father hit him. He said he reacted. He lost his temper and knocked him out. He believed he had no choice. ... His father was not going to to listen and give the bikies anything. He thought his mother was going to die. He decided he had to kill his father to save his mother. He hit his father in the throat and suffocated him. At the time he was scared for his mother. He did not know what else to do. He had to kill his father to save his mother. Afterwards he felt scared his mother might find the body, have a heart attack and a nervous breakdown. He put the body in the car and took it to the shopping centre. He left the car there. He thought the police might find the car. He did not want his father to be in the car for too long. He was hoping they would find him. He did not want to kill himself. At the time he thought bikies were coming after him and he needed to kill himself to save family and friends. He thought, if he came to gaol, the bikies would kill him in gaol. He thought of an alibi. He walked back home. He went to the neighbours and told them his car had broken down and he needed to use their phone. On the way to the neighbours he thought he was being followed. He knocked on the neighbour's door with the intention of making a phone call to his father to establish an alibi. He believed he had to get away. The bikies were coming after him. ... As the neighbours let him into the house he noticed that there was a blue car he saw following him and turn into the street. He rushed into the house hoping that they did not see him. He was distressed at having just killed his father and was anxious. He went to the toilet and borrowed a phone. He felt nervous and scared. He was unsure what to say. He said the lady came up and grabbed him. He panicked and reacted. He hit her in the face. The lady and the girl started screaming. He thought the girl pushed him in the back. At that time he thought it was the people from the car who had come to kill him. ... He grabbed the knife, swung around and lashed out with the knife. He recalled he was slashing. At the time he thought he was slashing people from the car. He was scared for his life. The girl and the mother stopped screaming and he noticed there was blood and realised what he had done. He then ran out of the house and went to his sister-in-law to grab his wallet and things. He drove to a camping spot to hide from the police. He stated, 'I thought they'd put me in gaol and I was going to get killed.'"

2. [269]

   Dr Allnutt said (at T366 L41-L48) that the appellant's reference to driving to a spot to hide from police indicated an understanding on his part that what he had done could be considered by others as being wrong.

3. [270]

   Dr Allnutt's report continued (commencing at T366 L50): "He was unable to sleep at night. All he could see were images of what he had done, they haunted him. On the Saturday, he decided he was going to kill himself. He left the camping spot on the Saturday afternoon. He wrote a letter to the police. He stayed on the side of the highway. He did not sleep that night. He was nervous and anxious at having to kill himself. He handed a note to the hospital in the morning, he gave it to a nurse at the front desk, a note saying how sorry he was. He went and got petrol, he came back to the hospital afterwards, he doused himself with petrol, he said a prayer and torched himself. He recalled being dragged out of the car by police. He was taken to hospital. He spent 3 months in the Burn Unit and then admitted to Long Bay Hospital for 1 month before coming to the MSPC. At the time he said, 'I was saving my mother' and he did not think that at the time that he attacked the other victims that they were the victims and he had no intention to kill them."

4. [271]

   Under the heading "Current Clinical Issues" Dr Allnutt reported in the following terms (commencing at T367 L26): "At the time that I saw him, he was feeling better. He was not experiencing any voices. He had last heard a voice at the time of the alleged offence and for a brief period afterwards. He had last heard voices in hospital where he continued to think the bikies were after him. He denied any visions, tastes or smells. He now did not think bikies were after him and he saw it as having occurred in his dreams. He denied that he was receiving any messages from the TV, the radio or the newspaper. He had an anxious mood. His sleep was adequate on the Avanza. He had reasonable appetite, energy and motivation and good concentration. His self-esteem was poor and he was depressed about what he had done. He maintained an interest in reading. He found pleasure in some things. He denied suicidal ideation plan or intent. He was not experiencing any panic attacks. He had last used drugs the night before the alleged offence when he had used alcohol. On the night before the offence he had used cannabis to try to get to sleep. He had smoked a fair bit, he was not sure how much, he had done this to reduce his anxiety. He had not suffered any new medical problems. The most significant stressor impacting on him was the Court case. He denied at the time that he saw me he was experiencing irritability or short-temperedness. There had been no conflicts or aggression. He accepted that he had a mental illness, schizophrenia, and needed medication. He said he would continue to take the medication. He understood the risks of substances that had increased his anxiety and the voices and that he needed to avoid substances. With regard to the alleged offence, he said he was very sorry for what had happened. He had difficulty living with what he had done and he said he did not mean to harm the girl or the mother."

5. [272]

   Dr Allnutt noted (at T368 L22) that the only occasion on which the appellant had indicated an attempt to kill himself was on the day of his arrest when he set fire to himself and cut his wrist. The appellant also denied any knowledge of family history of mental illness.

6. [273]

   Dr Allnutt then conducted an examination of the appellant's mental status and reported (commencing at T370 L13): "He presented as cooperative and fairly well-groomed; his speech was clear, coherent, soft and monotonous; his affect was restricted; he was clearly anxious during the interview and upset; he spoke in a clear and coherent manner; he maintained good eye contact; he did not manifest behaviour suggestive of either side effect psychiatric medication or neurological illness; he did not endorse any significant new or anxiety symptoms; and he denied any overt psychotic symptoms; he did not manifest significant intellectual impairment; his capacity for insight and judgment was adequate."

7. [274]

   Dr Allnutt then proceeded to express a number of opinions concerning the appellant. The first was an opinion in relation to psychiatric illness which was in the following terms (commencing at T370 L38): "At the time that I saw the accused, he was not manifesting significant active symptoms of psychosis. He did, however, provide a history of cannabis for 2 to 3 years prior to the alleged offence as well as a relatively significant abuse of substances over a fairly lengthy period of time consistent with probable substance abuse disorder. He lived a relatively unstable lifestyle, commuting between Sydney and Brisbane. In about August 2009, while playing pokies, he described developing a belief that bikies were in some way plotting to harm him and his family. He described and recalls being approached in September 2009 and October 2009 by members of this bikie group, in particular, the president named Boris, who said he was going to kill him and his father and torture his mother if his father did not give them what they wanted, namely money and the house. He described these two meetings in interview with me as being a dream. He described subsequently becoming aware of people following him in the street and holding the belief that if he did not do what Boris had told him to do by Christmas, then his mother was going to suffer. There was evidence that he had disclosed these beliefs to a number of people in the time preceding the alleged offence and evidence to suggest that while he was a member of a bikie gang this had happened more than 15 years ago and that the gang had subsequently disbanded. The symptoms described would be consistent with symptoms of a systematised persecutory delusional system probably due to paranoid schizophrenia. He derives from a relatively loving and supportive familial environment. He appears to have been relatively dependent on his parents for a number of years. He achieved sixth form at school and denied behaviour consistent with conduct disorder and was able to pursue gainful employment until he suffered a motor vehicle accident in about 1990, whereupon he was essentially on a disability support pension which likely aggravated his dependence on his parents. He has been capable of interpersonal relationships but has not pursued a relationship for a fairly lengthy period of time. At this stage he does manifest, in my view, some evidence for dysfunctional personality traits. But I would not, at this stage, conclude a personality disorder. He provides a history of substance abuse since age 18, including cannabis and speed which continued to date with periods of rehabilitation but no maintenance, but most predominantly alcohol, consistent with a likely alcohol dependence disorder. He was not manifesting any major medical problems when he saw me but I did not formally physical examine him. The most significant stressor impacting on him at the time that he saw me related to the current charges. His functioning appeared to be reasonable at the time that he saw me."

8. [275]

   Dr Allnutt then proceeded to express his opinion regarding the appellant's mental state at the time of the offending (commencing at T371 L42): "He describes the onset of a belief that he was in some way being persecuted by bikies in the context of witnessing certain interactions between individuals that occurred when he was playing pokies in August 2009. He describes then having had an interaction with a person called Boris and members of a bikie gang in September and October 2009 which, in retrospect, he describes as a dream. He went on to describe developing a belief that his phone has been tapped, that cars were following him and that he was having conversations in his head. These symptoms would be consistent with a persecutionary delusional belief and, as such, there would be reasonable grounds to conclude that he was suffering from a psychosis and thus a disease of the mind at the material time that the alleged offending occurred. It seems that in the context of his persecutory belief system he started carrying a knife. ... He became increasingly anxious that if he went to police more people would die and Boris would kill his family so he did not go to the police and subsequently saw no options for himself feeling trapped. He formed the view that people were coming for his family and believed that time was running out for him and he needed to act in order to protect his mother."

9. [276]

   Dr Allnutt then dealt with the death of the appellant's father and stated (commencing at T372 L31): "He stated he went to see his father on the day of the alleged offence in an attempt to have his father comply with the bikies' demands. In the context of this he had an argument with his father. After hitting his father to the ground, he determined that the best thing to do to save his mother would be to kill his father. Thereafter he took his father's body in the car to a shopping centre hoping it would be found and then further determined he would try and establish an alibi. With regard to the behaviours leading to the death of his father, in my opinion at the material time that the alleged offence occurred he was suffering a disease of the mind which was of a nature and severity that it severely impacted on his capacity to make rational decisions with regard to his father and was thus experiencing a defect of reason. With regard to the behaviours leading to the death of his father, it is unlikely that the defect of reason was such that it significantly compromised his capacity to know the nature and quality of his actions."

10. [277]

    Dr Allnutt agreed (commencing T372 L50) that his opinion was that there was a defect of reason because the appellant was suffering a disease of the mind which severely impaired his capacity to make rational decisions regarding his father. He said (commencing at T373 L6) that despite holding that view, it was his opinion that the appellant nonetheless appreciated the nature and quality of the physical act in relation to the death of his father, in the sense that he had the capacity to understand that if he hit somebody or strangled them or stabbed them, that he could potentially seriously harm, if not kill, them.

11. [278]

    Dr Allnutt (commencing at T373 L20) went on to consider the question of whether, as a result of a defect of reasoning due to a disease of the mind, the appellant was capable of knowing that his actions in relation to his father were wrong. In this regard he reported (commencing at T373 L28): "However, with regard to the death of his father, given that he incorporated his father and other members of his family, most prominently his mother, into his delusional system, he would have been compromised in his capacity to make rational decisions in relation to both of them. In addition to that, it appears that he had irrationally determined, due to his delusions of persecution, that he had no option but to kill his father in order to save his mother and that given his circumstances, having regard to his delusional world, this was the better option, from his perspective, and in that sense the right thing to do. In my opinion, under these circumstances he would have been unable to reason about the matter of wrongfulness in relation to his behaviour towards his father with a reasonable degree of sense of composure, and in regard to the behaviour leading to the death of his father is available as a defence of mental illness [sic]."

12. [279]

    Dr Allnutt was then asked (at T373 L45): "Q. In that regard, in your opinion as to his suffering disease of the mind which results in a defect of reason, that is on the basis of what he has believed about bikies is all a delusion, it's not real, it's a delusion; is that right? A. That's correct. Q. So on the assumption that it is a delusion and was not real, then you come to the view he has a disease of mind; correct? A. Yes."

13. [280]

    Dr Allnutt gave evidence (T374) that in his opinion not wanting to be arrested and put in gaol was consistent with an understanding on the part of the appellant that what he did was wrong. He also expressed the view that intending to create an alibi or divert attention from himself as being the perpetrator of his father's death was consistent with the appellant having such understanding.

14. [281]

    Dr Allnutt expressed the view that the appellant's defect of reasoning in respect of wrongfulness was that on the basis of his delusions, he felt that he was morally right to do what he did to his father because it would save his mother (such that because he was saving someone else, he believed that what he did was not wrong in his own mind).

15. [282]

    The evidence of Dr Allnutt then moved to the circumstances surrounding the death EW and the injury inflicted to VW. Dr Allnutt (commencing at T374 L36) set out the history that he had been given in this regard. Dr Allnutt was then asked (commencing at T375 L38): "Q. You noted, however, that the evidence suggests the behaviour that led to the death of [EW] and the attack on [VW] was in some way impulsive or reactive to circumstances? A. Yes. Q. Did you come to an opinion that if it was accepted that when he entered the house he believed he had been followed and that at least a person had pushed him in the house, or he was pushed and he believed that person was from the car, then he has in some way incorporated those persons into his delusion, is that the situation? A. Yes. Q. And as part of that delusion, do you consider the issue of mental illness is a live issue then? A. Yes. Q. Would it be though in relation to considering that that he still knew the nature and quality of the physical act when he was attacking the two persons in the house? A. Yes. Q. But are you saying if he believed they became incorporated into the delusion by in some way being associated with those that were attacking him, then that would affect his ability to know or rationalise what he was doing was wrong? A. Yes. Q. Can your opinion vary if there is consideration of some other rational explanation to the way he acted, that is, an explanation of someone trying to divert attention from themselves or what he had done to his father? A. Yes, there can be a rational explanation. Q. And that can affect the opinion? A. Yes. Q. So again it depends on what facts are accepted or assumed for this purpose, is that right? A. Yes. Q. At least in relation to the death of [EW], depending on the facts assumed, did you then consider whether the defence of substantial impairment, or at least that part of it where his delusions, if he was suffering them, in any way affected his capacity to understand events or judge whether his actions were right or wrong or to control himself? A. I put that as an option. I thought that it was a difficult determination to make because the facts weren't entirely clear as to what actually occurred at that time. Q. In effect in your first report there was some issues because of concerns about the facts relating to the neighbours, is that correct? A. Yes, I think that was relatively less clear to me than the first series of events." The second report of Dr Allnutt

16. [283]

    Dr Allnutt carried out a second evaluation of the appellant on 22 September 2011 and provided a report of 30 September 2011. On that occasion, the appellant had provided him with some further detail in relation to the relevant events which were set out by Dr Allnutt (by reading from the report) in the following terms (commencing at T377 L12): "I undertook a further interview of the accused on 22 September 2011. The purpose of this was to further clarify his thought processes around the material time of the killing of the second victim and the injuring of the third. He said that after killing his father he put the body in the car; he was worried that his mother would have had a nervous breakdown if she found the body. He went to Stocklands and parked the car. On the way there he was thinking that people were going to kill him in gaol. He parked the car. He was thinking about an alibi. He decided he would make a phone call to his father. At that point I asked him to explain how this might provide him with an alibi. He said at that point he could not explain but that was his thought at the time. He felt he had to get away. At the shopping centre he thought the bikies were coming to kill him: that they had told him before that if he did not kill himself they would go after his family and friends. He believed that the bikies wanted him dead and they wanted his father dead. He decided to go to the neighbours to ring his father. The neighbours were the first people who came into his head which is why he chose them. He had not really met them before. It was a thought that came straight to his head. He walked to the neighbours. On the way he was trying to think about what to say. He decided he was going to say his car broke down and he needed to call his father. He thought by ringing his father this would establish a view that at the time he rang him, he did not know he was dead. There was nobody at his home who could witness him making the phone call so he went to the neighbours. On the way to the neighbours he was anxious, nervous, agitated, because he had just killed his father. He also thought he was being followed on the way to the neighbours. He saw cars driving slowly behind him. He said there was a blue car. Arriving at the neighbours he knocked on the door. ... He told [VW] that he needed to use the phone to ring his father. She opened the door and he thought he saw the same blue car turning into their street. He panicked and rushed into the house. His recollection was that he made a phone call. He said there was a mobile in his hand. She must have given him the mobile. He made a call and the phone just rang. He thought he was either in the kitchen or the lounge with the deceased or [VW]. He recalled the deceased sitting in the lounge watching TV. He had no particular thoughts about her at the time. He was standing in the kitchen or the lounge thinking about what to say to [VW]. ... He believed that she went to grab him but then added that it was possible that she did not grab him but went to grab the phone. At the time, however, he panicked and hit her in the face. ... After he hit VW the thought came to his mind to tie them up. He needed to get away. He was scared of getting caught for his father's murder. He was thinking of tying them up and taking money to get away. This was the first time that this thought came to his mind. He needed money to leave the city and get away from the bikies and the police. ... He thought at this point he felt pushed from behind. At the time he thought this was people in the car coming to kill him. The last time he saw the girl - that's [EW] - she had been sitting on the lounge. He grabbed his knife and started slashing anything that moved. He said at the time he was scared for his life. He denied at the time that he was being aware that he was slashing the girl, [EW], until the screaming stopped and he saw blood. Until then he thought they were screaming because there was someone coming in the house, the people following him. He realised then what he had done. He went back to his car and drove to his brother's place and grabbed things and then left for Karuah. This is a place outside Newcastle, he drove there. On the way he felt panicky and scared. He thought he did not mean to harm [E] and [VW]. He knew he had done wrong then but at the time of the killing and the assault of [E] and [VW] he thought he was protecting himself. He went to the camping spot and hid there for a day. On the Saturday he drove back to Sydney. He felt sorry for having killed the neighbour. He continued, however, to feel that he had no choice but to kill his father and continued to feel justified in this. His killing his father had been able to keep his mother alive and he had no choice at the time and continued to feel justified in that regard. At that time he did not continue to feel justified in having attacked [E] and [VW]. He did not need to kill them, he said. He killed [EW] because he thought he was killing people who were following him. He bashed [VW] because she wanted to grab him or she grabbed him and he just panicked. He went back to Sydney and went to Fairfield Hospital instead of the police because he thought the police would stop him. He handed a note in to say he was sorry and his friend Danny had nothing to do with it. He went and got petrol. He came back to the hospital and set himself alight. He felt he had to kill himself. He was hoping that by killing himself he would save his family and friends. He was sorry he had killed people. I put to him that he had told people that [EW] had ran past him. He said that when he told people these things after the offence, his recollection was that it was something that he had assumed."

17. [284]

    Dr Allnutt's opinion as to the appellant's mental state at the time of killing his father remained the same as it was at the time of his first report.

18. [285]

    Dr Allnutt's second report then turned to the circumstances surrounding the death of EW and the injury to VW as follows: "Following the death of his father he decided to find a phone so he could call his father's phone in order to set up an alibi. By calling his father's phone he could give the impression that he was unaware of his father's death. This led him to entering the home of the second set of victims. He described on the way to the house believing that he was being followed by people who were going to kill him and entering the house believing that he saw them turning into a street in which [E] and [VW] lived, at that stage feeling panicked. He describes that upon engaging with [VW], he was scared and, having used a phone to make a phone call to his father, she gestured towards him that he interpreted as an attempt to grab him and he reacted to this and hit her in the face. Soon after this he thought he felt someone hitting him in the back which he deduced were people from the car that were following him coming to harm him and potentially kill him and, in response to that, he reacted and slashed. At the material time that he did this, he was not aware that he was attacking [EW] but believed that he was protecting himself against people that he thought had come to harm him and that the screaming that he heard, he thought were the victims screaming about people coming to the house rather than him attacking someone. The idea of staging some sort of robbery entered his mind after he entered the victim's home. Thus the two motives for entering the victim's home, to stage a robbery and to establish an alibi, seemed to relate to a progression of his decision-making from the time that he left the car. After the incident he persisted in maintaining a strong sense of justification about killing his father but did not feel justified in his attack on [E] and [VW]. This was because he had not incorporated [EW] and [VW] generally into his delusional system as he had his father. However, at the material time that the alleged offending occurred he was in an aroused emotional state, felt trapped, fearful and panicked and believed that others were intending to harm him."

19. [286]

    The above history was recorded by Dr Allnutt based on what he had been told by the appellant. Based on an assumption that such an account was correct, Dr Allnutt expressed the following opinion regarding the appellant's mental state at the time of the death of EW: "In relation to [EW], when he felt pushed from behind he temporarily believed that [EW] was someone, or people, coming to kill him; that he reacted in a violent manner believing himself to be justified in acting in that manner at the time as a consequence of his delusional belief that he was being attacked by others and, on this basis in relation to the death of [EW], I believe, on balance, he would be regarded as having available to him a defence of mental illness."

20. [287]

    Dr Allnutt went on to explain (commencing at T381 L50) that EW had become part of the appellant's delusion. She was perceived by him as somebody who was attacking him and as a consequence of his delusional beliefs, the appellant misconceived what was occurring between the two of them and reacted to those events impulsively, potentially acting in self defence. In this sense the appellant had, according to Dr Allnutt, temporarily and erroneously incorporated EW into his delusional thinking and had made decisions based on that interpretation (at T382 L10-12). Dr Allnutt explained that his use of the term "temporarily" in that context arose from the fact that even on the appellant's own account, he understood that these persons were not in any way associated with this thinking.

21. [288]

    Dr Allnutt then moved (commencing at T382 L26) to express an opinion regarding the appellant's mental state at the time of the injury inflicted to VW: "In relation to [VW], while it does not appear he misperceived her as he had [EW], that is somebody out to kill him, he appears he reacted to a gesture towards him without thought. He was prone to react without thought, that is impulsively, as a consequence of his delusional experiences derived from his disease in the mind and defective reasoning. On balance, I believe it would be reasonable to conclude that, on balance, he has a defence of mental illness in relation to this charge because his disease of the mind caused him to be unable to reason about the matter of the wrongfulness in attacking [EW] [sic] with a reasonable degree of sense and composure as a person with a rational mind would. Thus, on balance, I believe he would have available to him a defence of mental illness in relation to the offences related to all three victims."

22. [289]

    Dr Allnutt again explained that this opinion was based upon an acceptance of the appellant's account to him, and the symptomatology that he described. He explained (commencing at T383 L4) that there was a "question" as to whether the appellant met the test for a mental illness, in the sense that he would probably have had the capacity to think about things. However, Dr Allnutt went on to explain that the appellant was so pre-occupied by his delusional experience that he never applied that thought. He concluded (at T383 L7) that whilst it was "marginal", the appellant "probably would have available to him a defence of mental illness".

23. [290]

    Dr Allnutt explained (at T383 L22) that at the time of his second report he remained of the view that the appellant appreciated the nature and quality of his physical acts committed on E and VW. He explained (at T383 L31) that it was the second part of the test, namely whether he knew that those acts were wrong, which was the predominant issue. The third report of Dr Allnutt

24. [291]

    Dr Allnutt was asked to provide a third report and, in doing so, to consider a scenario which was in some respects different to that which had been provided to him by the appellant. In particular, he was asked to assume the following (commencing at T383 L41):

    1. (1)

       that the appellant attended a neighbour's house to divert suspicion from himself in relation to the death of his father;

    2. (2)

       that he did so by trying to make it appear that there had been a home invasion;

    3. (3)

       that included in his thinking at that time was to obtain money so that he could leave the area and not be arrested by the authorities in respect of what had happened to his father;

    4. (4)

       that the attack on E and VW was consistent with that intention;

    5. (5)

       that he took steps after the attack to disturb things in the house to make it appear like a home invasion had taken place;

    6. (6)

       that the attacks on E and VW were more than momentary "slashing type" attacks;

    7. (7)

       that it was open to reject the appellant's assertion that he believed that he had been followed to the house by persons who had made threats previously; and

    8. (8)

       that it was open to reject that he mistook EW for an attacker or someone out to harm or kill him.

25. [292]

    Based on these matters, Dr Allnutt expressed the following opinion (commencing at T384 L46): "You've asked me to consider another scenario. If it is accepted that at the time of the alleged offence involving his father he was suffering from symptoms of psychosis in the form of a delusional belief that he and/or his family were under threat, then it would be reasonable to conclude that at the material time of the alleged offence involving [E] and [VW], that there's evidence of delusional beliefs of this nature preceding the offence involving his father."

26. [293]

    In evidence, Dr Allnutt was asked to clarify that and he said (commencing at T385 L10): "If it is accepted that at the time of the alleged offence involving his father he was suffering from symptoms of psychosis in the form of a delusional belief that he and/or his family were under threat, then it would be reasonable to conclude that at the material time of the alleged offence involving [E] and [VW], that he was suffering from psychosis."

27. [294]

    He continued (at T385 L22): "That there is evidence of delusional beliefs of this nature preceding the offence involving his father and following the offences involving [E] and [VW], given that delusional beliefs, by their nature, usually tend to persist, then it would be reasonable to be of the view that no matter what the scenario was at the time of the alleged offences involving [E] and [VW] was, he would have met criteria to reach the legal definition of disease of the mind and/or underlying condition causing abnormality of mind at the time of the alleged offences involving [E] and [VW]."

28. [295]

    Dr Allnutt expressed the view (at T385 L37) that if it were accepted that the appellant was psychotic at the time that he killed his father, then he likely would have been psychotic at the time of the offences involving E and VW.

29. [296]

    Dr Allnutt then set out the various assumptions that he had been asked to make (set out above) and reported as follows (commencing at T386 L17): "Under this scenario, if it is accepted that he was, notwithstanding this, experiencing psychosis and thus a disease of the mind, he would be regarded as having a defect of reason because psychosis is a mental condition that, by its nature, causes a defect of reasoning. The issue would be whether or not the defect of reasoning was, specifically in relation to [EW] and [VW], of a nature and severity that it significantly impacted on his capacity to know the wrongfulness of his actions as it pertained to [E] and [VW]. This is because it is clinically feasible that a person with psychosis can reason defectively about one situation of a person and not another and thus it's reasonable to consider the issue separately from the offence involving his father. In my view it is unlikely that under the scenario, his defect of reason was of a nature and severity that it significantly impaired his capacity to know the nature and consequence of his actions."

30. [297]

    He explained that this opinion was applicable equally to the circumstances surrounding the offences committed on both E and VW.

31. [298]

    Dr Allnutt then addressed the issue of wrongfulness (commencing at T386 L44): "The issue here is whether or not his defect of reason was of a nature and severity that he was unable to know the wrongfulness of his actions at the time of the offence involving his father, he was of the delusional belief that he and his family were under threat and had had beliefs that he was being followed by his persecutors. The propensity to continue to hold this belief would still have been there at the time of the offence involving [E] and [VW]. While he was aware that what he had done to his father was wrong at the time that he entered the home of the second set of victims, in my opinion this was in a sense that he understood it to have been wrong in the eyes of others and in the legal sense that the evidence suggests that he remained of the view that he had done the right thing in a moral sense and this is the basis for my argument that he had, on balance, a defence of mental illness in regard to his father. This difficulty in reasoning about wrongfulness would have persisted at the time that he entered the home of [E] and [VW]. His reasoning capacity, at least as it pertained to the death of his father, remained impaired by his on-going delusional beliefs and thus he was still vulnerable to impaired reasoning at the time of the alleged offences involving [E] and [VW]. There is, however, evidence of thoughts, actions and feelings of guilt and regret, in particular to [E] and [VW], which suggests some degree of awareness of wrongfulness. If the scenario was that he attended the neighbour's house to divert suspicion from himself in relation to the death of his father in trying to make it appear to be a home invasion for the purposes of obtaining money so he could leave the area and not be arrested by authorities in respect of his father, and that the attack on [E] and [VW] was consistent with that intention and that he took steps to make it appear that there had been a home invasion, and that the accused inflicted significant injuries on both victims other than slashing of their throats, and that the attack was more than momentary, and it is rejected that at the time the accused actively believed that he was being followed to the house and it is rejected that the accused mistook [EW] to be the attacker out to kill him, then I do not believe that a defence of mental illness would be available to him. While he was probably anxious, emotionally aroused and paranoid about his situation, the motive was rational to avoid recognition, detection and arrest by police. The behaviour planned [sic]. He would not be regarded as having involved the victims directly into his delusional belief system and that was thus likely to have known the wrongfulness of his actions in a legal sense and, having regard to his strong sense of guilt about events afterwards, likely had knowledge of moral wrongfulness of his actions. This scenario would also support the conclusion as it pertained to [E] and [VW], that he likely retained capacity to understand events as it pertained to those victims, judge right from wrong in regard to those victims and control his actions, given the pre-planning, and the defence of such substantial impairment would be unlikely to be available to him. And that's, in particular, substantial impairment to [EW], not [VW]."

32. [299]

    Dr Allnutt then continued (at T388 L28): "If the scenario was that he attended the neighbour's house to divert suspicion from himself in relation to the death of his father in trying to make it appear to be a home invasion and for the purposes of obtaining money so he could leave the area and not be arrested by authorities in respect to his father, that it is rejected that at the time the accused actively believed that he had been followed to the house, and it is rejected that the accused mistook [EW] to be the attacker out to kill them, that the accused inflicted significant injuries on both victims other than the slashing of their throats, and that the attack was more than momentary but that killing the occupants was not part of his initial plan at the time he entered, that it was only after he entered the home that the idea of the attacking or killing them occurred, then the issue is less clear. A defence of mental illness is raised in a manner described in my prior report, that is, not being able to reason with a reasonable degree of sense of composure due to panic derived from delusions, but in relation to [EW] the defence of substantial impairment may also be applicable, his mental state could have impaired his capacity to control his actions because he could have acted impulsively in a panic due to his delusions. ... If the scenario was that he attended the neighbour's house to divert suspicion from himself in relation to the death of his father in trying to make it appear to be a home invasion and for the purposes of obtaining money so he could leave the area and not be arrested by authorities in respect of his father, that the accused inflicted significant injuries on both victims other than the slashing of their throats, and the attack was more than momentary, that it is rejected that at the time that the accused actively believed he had been followed to the house, and it is rejected that the accused mistook [EW] to be the attacker out to kill him, but that the underlying motive was he was seeking a way to avoid further harm to his family by others and thought he was going to be killed in gaol, if arrested, due to delusional beliefs and thus an irrational motive, then a defence of substantial impairment is raised in that he entered the home with the impairment in his capacity to understand events and, to some degree, felt justified- ... Determining the threshold of the applicability of a mental illness or substantial impairment can be challenging. The accused has provided varied accounts, at times less detailed than others, which scenario, and there are likely others, is factually acceptable and which defence is acceptable, is applicable, is a matter for the Court." Cross-examination of Dr Allnutt

33. [300]

    Dr Allnutt agreed (commencing at T396 L47) that it was not uncommon for people, when recovering from, or even when still in, a state of psychosis, to have difficulty in providing an explanation for their actions. He also explained that it was not uncommon for people, when they found themselves in difficult positions, to try and rationalise such positions in a way which was more palatable to the listener. He agreed that the appellant was psychotic but took the view that he could fall into either of the categories which had been described.

34. [301]

    He agreed (commencing at T397 L30) that going to a neighbour's house right next to where the crime had been committed to make a phone call, in order to set up a scenario that he was trying to telephone his father, did not make sense. He took the view that wanting to establish an alibi was a relatively rational decision, but that trying to establish an alibi by killing other people, was irrational.

35. [302]

    Dr Allnutt accepted (commencing at T398 L5) that at the time that he approached the neighbour's premises, the appellant was vulnerable to the symptoms of his disease of the mind, that he was suffering from a defect of reason, and he was vulnerable to being deprived of a sensible appreciation and understanding of the unreality of his situation.

36. [303]

    He explained (commencing at T400 L14) that psychosis was characterised by hallucinations and delusions causing a person to see and hear things which did not exist and leading to a perception of reality which was non-existent. He also agreed (at T401 L29) that a person labouring under an acute psychosis can behave in ways that are altogether uncharacteristic and that they perceive the actions of others in a way which is not reality based and are prone to misinterpret the actions of others.

37. [304]

    Dr Allnutt also explained (commencing at T403 L40) that expressions of remorse post the event were not inconsistent with a mentally ill person who was unable to reason with sense and composure at the relevant time.

38. [305]

    Dr Allnutt said (commencing at T404 L30) that the evidence established that the appellant was psychotic both before and after the offences. He explained that his opinion that the appellant was psychotic did not arise from the fact the appellant had killed his father a short time before he attacked the Ws. He explained that there was a long history of mental illness and that in stating his opinion that the appellant was psychotic at the time the offence occurred, he was talking about a period of days weeks or months before hand. He explained (at T405 L3) that having regard to that opinion he accepted that the defence of mental illness was available to the appellant in relation to the acts giving rise to the offences concerning E and VW.

39. [306]

    Dr Allnutt also explained (commencing at T405 L12) that in making a determination of whether or not the appellant knew what he was doing was wrong at the time of attacking E and VW, it was relevant to consider what his other actions were at or about that time. He explained that those actions would include:

    1. (1)

       the whole of his activity over a number of hours surrounding the attacks;

    2. (2)

       the killing of his father;

    3. (3)

       putting his father's body in the car and taking it away from the premises;

    4. (4)

       any explanation he gave for taking his father's body away;

    5. (5)

       the fact that he visited his neighbours;

    6. (6)

       the suggestion that he thought that he was being followed by a blue car;

    7. (7)

       his actions from the time that he first arrived at the neighbours premises up until he struck the first blow;

    8. (8)

       the details of his assault on E and VW;

    9. (9)

       his actions while he was at the neighbour's premises; and

    10. (10)

        what he did in the hours after he left the W premises.

40. [307]

    He also said that it would be relevant to take into account the circumstances in which the appellant attended upon his sister-in-law and that her observations (which included a description of the appellant presenting in what she thought was a paranoid state) would give rise to a reasonable conclusion that the appellant was manifesting a continuation of the psychosis which had been described.

Dr Olav Nielssen

1. [308]

   Dr Nielssen was called to give evidence in the appellant's case having provided a report of 5 April 2011. (As with Dr Allnutt, he was also asked to read extracts from his report to the jury.) He described the history provided to him by the appellant in relation to the offending (commencing at T421 L26): "On the day of the offence itself he said that he was looking for an opportunity to tell his father but when he did so, he said that his father was angry and did not believe him. He said that he showed his father that he was carrying a big knife for his own protection which he said led to a 'massive argument' in which his father blamed him for placing the family in danger. He said that he told his father that he had to follow his directions because he was worried what would happen to his mother so that his father became angry after that and slapped him which he said caused him to lose his temper, punch his father to the ground. He said, 'I realised I had to kill him for my mother's safety, he was so stubborn. It was only the way I could protect my mother, that's why I killed him'. Mr Da-Pra said that he felt he had to move the body so as not to cause his mother distress and put the body in the car and drove to the shops. He said that at that point he did not want to kill himself or go to gaol as he said he thought he would be unsafe in gaol. He said he called on the house of the neighbours about 15 minutes after his father's death in order to 'create an alibi' but said that he thought that he had been followed to their house as he said that while he was at the door asking to use the telephone and to go to the toilet, he noticed a blue car turn into the street which he believed contained people who were after him. He said that he pushed his way into the house to avoid being seen. He said that he was, 'Very paranoid about the people in the car'. He said that the woman at the house tried to take the telephone from him and grabbed his arm and he responded by pulling out the knife and cutting her throat. He said that he then cut the throat of the 12 year old girl who was there with her grandmother. He said that he left the grandmother for dead because he thought he had killed her. Mr Da-Pra said that while he was at the neighbour's house, 'I felt really nervous, I lost control, I thought I was being attacked'. Mr Da-Pra said that he drove up the coast with the intention of going to Queensland but said that when he reached Karuah he was haunted by 'images of what I had done'. He said he pulled over, wrote the note to police and then returned to the area where he lived where he said he obtained the petrol. He confirmed he did not pay for the petrol which he said was because he planned to kill himself. He said he cut his wrist, poured the petrol and set him [self] on fire in the car and sustained burns to 40 per cent of his body. He said that he thought at the time that by killing himself he would save his family and friends."

2. [309]

   The psychiatric history taken by Dr Nielssen from the appellant included the following (commencing at T422 L24): "There's no family history of psychiatric disorder, his early development was normal, there was no learning or conduct problems or any conduct with the police as a teenager, he didn't repeat any years of school or have any remedial education, he was good at sports. He did not report any contact with mental health services as an adult and described his long-standing persecutory ideas and symptoms of schizophrenia that were present for about six months prior to the offence. I realised an omission in that history is any mental health assessment around the time he was awarded the disability support pension which presumably included a psychiatric assessment but I don't have any history of that. He said that he was seen by a psychiatrist while he was recovering from burns in Concord Hospital but did not commence treatment with any psychotic medication until his transfer to prison - and that history is also incorrect in that he was treated with antipsychotic medication at Concord. He said that in the period after his transfer to prison he experienced hallucinations of threatening voices that he attributed to bikers and believed that he was still in danger whilst in prison. He was prescribed an antipsychotic medication Olanzapine known by the brand name Zyprexa, a therapeutic dose of 15 milligrams per day, and he responded to that treatment, the hallucinations stopped and he had come to realise that the ideas about bikies were abnormal. However, he was still afraid that he was under threat despite the absence of any direct threats and he was held in the protection area of the gaol. He did not report any treatment with antidepressant medication. He said he had often thought of suicide in the six months prior to his arrest but his only suicide attempt had been by setting himself on fire and cutting his wrists after the offences."

3. [310]

   Dr Nielssen diagnosed (commencing at T423 L23) a condition of chronic schizophrenia and substance abuse disorder. He thought that the pattern of symptoms, including vivid auditory hallucinations, were more typical schizophrenia than a drug induced condition.

4. [311]

   Dr Nielssen explained (commencing at T423 L34) that chronic schizophrenia was a mental illness which manifested itself in auditory hallucinations, disorganised thinking, impairment in emotional regulation and delusional beliefs or fixed false beliefs which were often of a bizarre nature. He explained that over the longer term there can be chronic impairment in intellectual function and often a loss of volition or a loss of emotional responses.

5. [312]

   When asked about the availability of the defence of mental illness attaching to the death of the appellant's father Dr Nielssen said (commencing at T423 L42): "I believed he had the defence of mental illness open to him, according to my understanding of the test for mental illness in our law; that he had a disease of the mind in the form of chronic schizophrenia that gave rise to a defect of reason of a frightening, delusional belief that he had to kill his father to save his mother. And I think he probably recognised the nature and quality of his act, he knew in a sense that he was killing another human being but he didn't recognise his actions were morally wrong in the sense he believed he was certainly killing his father for altruistic purposes and because the family was in danger and also because of his acutely disorganised thinking and emotional arousal affected his capacity to reason with any calmness or composure about the alternative causes of action available to him."

6. [313]

   When asked about his opinion as to the availability of the defence of mental illness in respect of the attacks on E and VW, Dr Nielssen said (commencing at T424 L6): "I thought he had the defence of mental illness available to him in that situation, for those offences, for the same reasons. He was still acutely mentally ill; he had a delusional belief that he was still in danger and said the immediate trigger to the attack was that he believed he was being attacked possibly by people who had followed him there but, more importantly, his capacity to reason in a calm and logical way about what to do was grossly impaired by an acute and never treated schizophrenic illness."

7. [314]

   Dr Nielssen explained (commencing at T424 L14) that in reaching those opinions he had regard to the evidence of post offence conduct on the part of the appellant.

8. [315]

   Dr Nielssen was aware of the appellant's account of having attended at the premises of the Ws with a view to establishing some kind of alibi. He said that this did not in any way undermine his opinion and (at T424 L28) that all of the appellant's behaviour was influenced by acute mental illness. Even if he had that idea in mind it was an illogical and absurd thing to do which arose from disorganised thinking of an acutely mentally ill person who continued to experience symptoms of mental illness when he was at the door.

9. [316]

   Dr Nielssen said (commencing at T425 L14) that he knew of no information that suggested that there was a rational or malicious motive for the offences. He was "quite confident" that the appellant had been psychotic "for some time before all this" and that he was psychotic at the time he killed his father.

10. [317]

    In Dr Nielssen's opinion (commencing at T425 L28) the appellant was affected by delusions throughout the period of the offending.

11. [318]

    Dr Nielssen said (commencing at T432 L19) that if a person suffering from paranoid schizophrenia is preoccupied with a delusion in a psychotic state, that delusion does not usually subside in the absence of treatment. He said (commencing at T433 L26) that in his opinion the appellant was suffering an acute phase of his illness on the day of the offending and that in the face of such delusions a person in the position of the appellant was deprived of a sensible appreciation of reality, in the sense that their view of the world was based on their delusional perception.

12. [319]

    He explained (commencing at T434 L50) that aspects of the appellant's post offence conduct including rummaging around in the bedroom of VW and possibly effecting damage to outside of the premises with a view to creating the impression that others may have been responsible for the offending, had no impact on his opinion. Cross-examination of Dr Nielssen

13. [320]

    Dr Nielssen agreed (commencing at T435 L35) that even accepting that the appellant suffered from delusions and that he had the mental illness which had been described, he was still able to function in ways outside of those delusions.

14. [321]

    Dr Nielssen agreed that his opinions were based largely on the account which had been provided to him by the appellant on 7 March 2011, some 15 months after the offences had been committed. He agreed (at T446 L29) that it was necessary to keep in mind the possibility that a person may be tailoring a version so as to render it consistent with a plea of not guilty on the grounds of mental illness but expressed the view that the entire reason for going to the Ws' premises was illogical and irrational. He expressed the view (at T448 L8) that the appellant was in an acutely psychotic state and that the further offences were the results of a disturbed state of mind.

15. [322]

    Dr Nielssen agreed (commencing at T449 L45) that there were "elements of rationality" in some of the appellant's actions. However, he also explained (at T450 L32) that people who are psychotic can still have a rational understanding of the real world but at the same time be affected by delusional beliefs. In other words, even though there may have been some actions which were inspired by rational if not well considered thoughts, the appellant remained in a delusional state and that his attack on the Ws was inspired, or at least contributed to substantially, by that delusional state (at T450 L35-43).

16. [323]

    In re-examination (commencing at T457 L13) Dr Nielssen explained that the appellant's capacity for completely rational thinking was diminished because of the overall effect of acute mental illness and that although individual actions might appear, in themselves, rational, the overall motivation and capacity for logical thinking was effected by mental illness.

Dr Sharon Reutens

1. [324]

   Sharon Reutens, psychiatrist, was also called in the case of the appellant. She interviewed him on 8 May 2012 and had available to her the reports of both Dr Allnutt and Dr Nielssen. She read to the jury the following history she had obtained (commencing at T461 L34): "Mr Da-Pra told me that he was a member of a bikie gang when he was aged in his twenties. The leader of the bikie gang was named Boris. Mr Da-Pra said that he'd almost broken up Boris' marriage and said that Boris bashed and threatened him. As a result, Mr Da-Pra moved to Brisbane in Queensland when he was aged about 30. He said he had been worried about bikies wanting to harm him since then. He moved to a property in a remote location and rarely left it. He said at the time he was using marijuana and drinking alcohol. Mr Da-Pra continued to be anxious that bikies were trying to harm him but returned to live in Sydney around 2009. Mr Da-Pra said that in about July 2009 he had an argument with someone over a poker machine that he was playing at the club. He said that this person became angry and Mr Da-Pra considered that this person sat with a group of people that he thought were bikies. Mr Da-Pra said that around this time he began to be concerned that bikies were following him and watching him. He said that he thought he heard Boris' voice in about October 2009. He said that Boris told him that he was going to extort money from Mr Da-Pra's parents, family and friends and that unless they gave Boris what he wanted, they would be killed and his mother tortured. Mr Da-Pra said that he heard Boris saying that some family and friends could be saved if Mr Da-Pra's father was killed and if Mr Da-Pra killed himself. Mr Da-Pra told me that Boris' voice told him that only two families could be saved and this could be done by Mr Da-Pra giving them a purple flower. He gave one flower to his sister-in-law, Juanita, and one to a friend, Luis Palma. He said that he had chosen these two families because he had spent a lot of time with them and because they had young children. Mr Da-Pra said that he was warned by the voice not to go to the police because if he did more people would die. He heard that he had until Christmas of that year to carry out the killings. He became very anxious about having to carry out the killings. He was unable to tell anyone about the orders and tried to manage the anxiety by increasing his use of marijuana and alcohol. ... Mr Da-Pra estimated that he smoked about half to 1 ounce of hydroponic cannabis a week and drank about four to five shots of Grappa, a 6-pack of beer, a 6-pack of Bourbon and Coke mixer cans and a bottle of wine a day since October 2009. He was preoccupied with his task and found it difficult to sleep. Mr Da-Pra told me that he'd been carrying a knife with him since October as he felt he had been followed. He said that motorbikes would just pull up in front of the house and that cars followed him. He considered that Boris knew where he lived and where his friends lived. Mr Da-Pra said that he also believed his phones were tapped. Mr Da-Pra said that a day or two before the offences he spoke to his brother, Mario, and told him that people were after the family. He found it difficult to sleep that night and decided he would tell his father to just give the bikies what they wanted. On the day of the offences, Mr Da-Pra said that he tried to tell his father about the extortion plot. He said that he and his father had an argument where his father blamed Mr Da-Pra for being involved with the type of people who would organise an extortion. He said he begged his father to give the bikies the money and told me that his father then hit him. Mr Da-Pra said that he in turn hit his father and knocked him unconscious. It was at this stage that Mr Da-Pra said that he realised that his mother would die because his father was refusing to give the bikies what they wanted. He decided that in order to save his mother and to stop her from being tortured to death he would have to kill his father. He told me that he hit his father in the throat and suffocated him. Mr Da-Pra said that he was worried that his mother would have a heart attack or a nervous breakdown if she found the body so he put his father's body in the boot of the car and cleaned up the blood so that his mother could not see what had happened and become upset. He said that he then drove to the shopping centre. Mr Da-Pra told me that he was scared. He did not want to kill himself but knew that he had to do so to prevent further people being killed. He considered that if he didn't kill himself, he would gaol [sic - go to gaol?] because he had killed his father. He believed the bikies would find him there and he would be killed anyway. He thought that he would try and provide an alibi for himself so that at least he could get away. He believed that if he rang his father's house and left a message looking for his father that it would look as if he didn't know his father was missing. Mr Da-Pra said that he walked to his neighbour's house. On the way, he believed he was being followed by a car which was driving very slowly. He knocked on his neighbour's door and told them that his car had broken down. While knocking on the door, he saw the car that he thought was following him turn into the street and he rushed into the house, hoping that the car had not sighted him. Mr Da-Pra said he told his neighbour, a woman, that he required the phone. He was aware that a young girl was watching television in the next room. Mr Da-Pra said that he panicked and hit her. Mr Da-Pra told me that he was scared and did not know what to do. It was at that time that he thought he might tie her up and take some money so he that could get away. Mr Da-Pra said that he heard screaming. He was pushed in the back and considered that whoever had been following him in the car had come into the neighbour's house and was attacking him and trying to kill him. He said that he took his knife out and started slashing at anything that moved. He considered that he was going to be killed and said he was trying to save his own life. Mr Da-Pra said that he continued to attack anything that moved with his knife until the screaming stopped. He said that these events were in a blur and it wasn't until the screaming stopped that he looked and believed that he had killed the girl and the woman. He said he was scared after realising what he had done. He checked outside to see if the car he had thought had been following him had gone and then went to his sister-in-law's house where he took his wallet and clothes. He told his sister-in-law that he had to leave. Mr Da-Pra said that he drove to Karuah where he visited a friend, he showed him a camping spot. He stayed there until Saturday afternoon. He drank about half a bottle of scotch which was in his car. He was unable to sleep at all and decided that he had to set himself on fire. He was not sure why he chose that mode of death. He said that he had already thrown his knife into the bush near the camping spot. Mr Da-Pra drove to Fairfield the following day. He wrote a suicide note which he took to Fairfield Hospital. He told me that he did not want to go to the police because he had been told by Boris that if he went to the police more people would be killed, so he decided to give the note to someone in the hospital. Poured petrol over himself but he did not have enough so he went to a service station and obtained more petrol which he poured over himself and then set himself on fire. Mr Da-Pra said that he was taken to hospital and was very anxious when he was in hospital because he was worried that the bikies would try and kill him. He felt helpless because he was unable to move or to warn his family. However, once December, which was the supposed deadline, had passed with no harm occurring to his family, he felt better and over time realised that his family were not going to be killed. Mr Da-Pra told me that he had started taking antipsychotic medication in hospital and continued to take the medication. He no longer heard the voice of Boris or any other voices. He denied ever having any interference with his thoughts or any messages from TV, radio or magazines at the time of the offences. He denied any other perceptual abnormalities. He described his mood as okay. He was eating well. He had not lost any weight. He was remorseful about having killed his father and neighbours. He described himself as very anxious. He often paced during the day, driven by an irresistible need to move."

2. [325]

   Dr Reutens expressed the following opinion (commencing at T465 L17): "Mr Da-Pra is a 48-year-old gentleman who gave a history of concerns regarding possible harm from bikies for years. He described the belief of more significant interactions with bikies dating from about July 2009 and the development of auditory hallucinations at around that time, consisting of a voice of the former bikies President, Boris. He then developed a belief that he was being followed, that his phone was tapped, that there was a plot to extort his family of money, and that in order to save family and friends from dying Mr Da-Pra and his father had to die. In my opinion, these beliefs constitute a delusion and these delusions and the auditory hallucination of Boris are consistent with the diagnosis of a psychotic disorder. The chronicity of the psychotic disorder and its persistence in hospital in the absence of ongoing substance use is consistent with a diagnosis of chronic schizophrenia. Mr Da-Pra took to carrying a knife with him and refrained from going to the police as he had a belief that more people would die if he did. He said that he believed that he had to kill his father in order to save his mother based on his delusional beliefs and the content of the auditory hallucinations. It is my opinion that at the time Mr Da-Pra killed his father he was suffering from a mental illness, namely chronic schizophrenia which is a disease of the mind. The disease of the mind caused a defect of reason, that is, as a result of his delusion that his father had to be killed in order to prevent more people, particularly his mother, from being killed, he was unable to make a rational decision. However, he was likely to have known the nature of his actions. In addition, because the delusions involved a belief in the inevitability of the death of family and friends which could only be averted by Mr Da-Pra killing his father and himself, it is my opinion that he was impaired in his ability to judge the rightness or wrongness of the act with any reasonable sense of composure and reason. Mr Da-Pra decided he required an alibi so that he could get away. The decision to stage a home invasion or to call his father and leave a message indicates that after the offence he knew that the killing of his father was legally wrong. But in Mr Da-Pra's mind he was morally justified because he believed this would avert more deaths. This indicates an inability to rationally judge the rightness or wrongness of the act. In my opinion, Mr Da-Pra has a defence of mental illness available to him for this offence. The documents detail several versions of the events involving a second set of victims at his neighbour's house. Mr Da-Pra said that he intended to give himself an alibi so that he could get away and hopefully elude the bikies. He said that while walking to the neighbour's house he believed he was being followed and therefore pushed his way in. While Mr Da-Pra told me that his neighbour grabbed him, I note this is at odds with Ms W's statement that Mr Da-Pra grabbed her by the wrist and swung her around and started punching her. He stated that after punching his neighbour he decided to try and take money from her so that he could get away and it was then that he formulated the idea of staging a robbery or home invasion. However, I note that this is at odds with other accounts he has given where he has stated that he decided to stage a home invasion with the intent of taking money and leaving the city prior to entering his neighbour's house. Mr Da-Pra said he had believed he was followed to his neighbour's house and when he felt a push to his back he believed that the people who were following him had entered the house and he lashed out with a knife he was carrying with him. He said he believed he was acting in self-defence because he thought he was going to be killed. However, the account Mr Da-Pra gave to nurse Owens and Dr Goh was that he was aware that [EW] ran past him. It is my opinion that at the time of the offences involving the second set of victims, Mr Da-Pra was suffering from a psychotic illness, namely schizophrenia which is a disease of the mind which produced a defect of reasoning such that he was incapable of rational thought. It is unlikely that it significantly compromised his capacity to know the nature and quality of his actions. However, based on the history I've obtained, I am of the opinion that Mr Da-Pra had incorporated his neighbours into his delusion, that is, he believed that they were the people whom he believed were following him and he was acting in self-defence. In addition, he was unable to reason with any degree of composure of the rightness or wrongness of the act because he believed he was acting in self-defence; was unable to think rationally due to his psychotic illness; and was in a state of arousal after the recent killing of his father. Therefore, I believe he has available to him the defence of mental illness. An alternative account may be accepted, namely that he had entered his neighbour's house with a plan to stage a home invasion and was aware that [EW] ran past him. That is, it may be construed that he did not act under a belief that he was about to be killed by pursuers. I believe Mr Da-Pra was still psychotic at that time and suffered from a disease of the mind which caused a defect of reason because he continued to have a delusional belief that his family was going to be killed, that he would be killed if he went to prison, and thus had to flee. This disease of the mind would be unlikely to be so severe that he could not appreciate the nature and consequences of his actions. At the time of the offence he would have been significantly aroused as a result of having recently killed his father and because he believed he had to either kill himself or try and evade his pursuers. He would be more prone to acting impulsively in such a highly aroused state and it is likely that under such a state, would be unable to judge the rightness or wrongness of the act with any reasonable sense of composure and reason. Thus I would consider that Mr Da-Pra would have a defence of mental illness available to him. I've considered that Mr Da-Pra would have a defence of substantial impairment by abnormality of mind available to him because at the time of both sets of offences he was suffering from an abnormality of mind, namely schizophrenia which impaired his ability to rationally appraise the nature of the acts and which impaired his ability to reason in a logical manner. However, I would conclude that Mr Da-Pra also has the defence of mental illness open to him for all of the charges because he was suffering from schizophrenia which is a disease of the mind which manifested as persecutory delusions and auditory hallucinations. This disorder of mind affected his ability to appraise the events with any degree of rationality. He was also grossly impaired in his ability to reason logically. His judgment was impaired and he was" - That should say: "He appeared to be unable to determine the rightness or wrongfulness of his actions because he was acting on the basis of delusions. In addition, he was aroused and fearful that he was going to be killed and aware that he killed his father with regard to the second set of victims."

3. [326]

   Dr Reutens explained (commencing at T468 L4) that in coming to her conclusion she was provided with information which suggested that after the events at the Ws' home, damage was effected to the fly screens or outside windows and various objects had been moved in the bedroom of Mrs W. Dr Reutens explained that she had regard to that post offence conduct but maintained the opinions which she had expressed. She explained (commencing at T468 L16) that the appellant would have been acutely aroused, impulsive and in a panic at the time of the offending and that the post offence behaviour would have occurred after he realised what was happening.

4. [327]

   When cross-examined Dr Reutens agreed (commencing at T472 L12) that the appellant, after the act which caused the death of his father, had an appreciation that it was legally wrong to take his father's life. She agreed that the knowledge that something was legally wrong carried with it a knowledge and a reasoning that it was against community standards to take someone's life but explained (at T472 L28) that the appellant's appraisal of the relevant events was not based on reality.

5. [328]

   She was cross-examined (commencing at T473 L18) about the movement of the body of the appellant's father. She agreed that the appellant's actions in doing so indicated some degree of rational motivation and thought. It indicated a rational motive to save distress to his mother. It was also possible he did this to delay discovery of the body so as to give him time to get away.

6. [329]

   She agreed (commencing at T474 L5) that cleaning up blood was also a rational response by somebody who had taken the life of another and who understood that it was against community standards to do so.

7. [330]

   She agreed (at T475 L16) that comments by the appellant to the effect that if he did not kill himself he would go to gaol because he had killed his father confirmed in her mind that the appellant knew that he was legally wrong to take another person's life. She agreed (at T475 L42) that this was a rational process of thinking. However, she went on to explain (at T477 L9) that these were rational thoughts produced by an irrational mind.

8. [331]

   Dr Reutens was then cross-examined about the offending in respect of the Ws (commencing at T478 L3). She agreed (at T480 L1) that it would not be unusual for a person to be highly aroused after committing an act of killing someone.

9. [332]

   It was put to Dr Reutens (commencing at T481 L3) that the "alibi" which the appellant had sought to create was indicative of high ordered thinking. She explained (commencing at T481 L34) that whilst this was the case, rationality was not "a dichotomous variable". She said, in effect, that viewing the offending in a way which assessed it in individual steps was not a correct approach because irrationality was a continuous state of mind.

10. [333]

    Dr Reutens was then asked the following (commencing at T490 L14): "Putting aside [EW], what happened to her, at some stage if [VW] has been struck and is unconscious on the ground, he has then come back to her and cut her throat? A. Yes. Q. What would he understand about her as being an attacker, at the time he cut her throat, from the car? A. I guess you're taking it from a rational mind perspective. Q. I'm not asking you about a rational mind, I'm asking you about his mind, what would he not understand at that time? A. I think he would have probably been acting impulsively, that he was acting impulsively before when either she, on her account, made no move towards him or, on his account, she made a move towards him and he just punched her. That was a very impulsive overreaction, one could say, to nothing or something and I suspect that what was going on was this impulsive reaction to just attack. Q. An impulsive reaction to go down and cut her throat? A. That's what I could make of it, yes. Q. If at some time after the initial blow to [VW], he then strikes in some way [EW] which causes her to go to the ground? A. Yes. Q. And then after she is on the ground, if you were to assume that whilst on the ground and perhaps incapacitated after being struck, he then cuts her throat? A. Yes. Q. And causes her death? A. Yes. Q. After being struck to the back and thinking someone behind you from the car is attacking and until that time there were some screams, you thought there was a young girl here and a lady who were the neighbours; right? A. Yes. Q. What would he not understand - I'm talking about him, I'm not talking about what you say is a rational person - what would the accused not understand in then going to [EW] and cutting her throat? A. Yeah, I guess in some ways it's difficult to know how quickly in succession these events happened, whether she was struck and very quickly had her throat cut or I guess that scenario is one that the jury has to decide. If it happened very quickly, she was struck, fell, and almost in the same moment he cut her throat, that would be that impulsive action that anything that moved is a body, is an attacker, and best to just kill them. But if it happened more slowly, then he's probably - I'm just now giving a couple of different scenarios. If it happened that she was lying on the ground and he then approaches her, he is -I mean, the likelihood that he was acting impulsively would be less likely because it was such a momentary action. One could imagine that he would be fuelled by panic and fear and thinking momentarily that anyone, anybody was possibly the body of the attacker, anyone who had pushed him in the back, and in order to get away, just to kill and attack whoever was there. But it's difficult, depending on how quickly everything happened."

11. [334]

    In re-examination (commencing at T502 L10) Dr Reutens explained that there was nothing about the severity of the attack which suggested that the appellant was acting with a moderate sense of composure. She explained (at T502 L22) that the extent of the violence exhibited by the appellant indicated that he had over reacted towards both his father and VW such that "the whole scenario is one of over reaction to perceive or actual provocation."

Ground 1: The trial judge erred in failing to direct the jury, in relation to count one, that they must not reject unanimous medical evidence in the absence of other evidence displacing or throwing doubt upon it

1. [335]

   The appellant submitted that in relation to the killing of his father the psychiatrists were unanimous that the defence of mental illness was available. Accordingly, with reference to Taylor v R (1978) 45 FLR 343; 22 ALR 599, a direction as summarised in the statement of the ground should have been given.

2. [336]

   Such a direction was sought by trial counsel but only in respect of counts 2 and 3. The judge rejected the submission because the evidence in relation to those counts was not unanimous. As no such direction was sought in relation to count 1, r 4 of the Criminal Appeal Rules applies and leave to rely on this ground is required.

3. [337]

   The following succinct summary of the law was provided in R v Iusi Afele [2014] NSWSC 366 at [68]: "If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173; and Tumanako v R (1992) 64 A Crim R 149."

4. [338]

   In the course of his summing up the trial judge directed the jury in the following terms: "Expert evidence is provided in a case like this to provide you with information and opinion that is likely to be outside the experiences and knowledge of the average layperson. It is there to assist you but you are the persons who have been given the task of [making] the ultimate decisions. Clearly, given the differences of opinion you cannot accept all of the expert evidence that you have been given. How do you decide what you should accept? Now, clearly, you would need a very good reason not to accept an opinion in which all experts agree and which was within their field of expertise, and I do not think it is suggested that you should do so in this case. However, you should certainly consider what each of the psychiatrists has identified as the bases for his or her opinion and whether you accept those bases are complete, accurate and fair." (SU 17-18)

5. [339]

   Later in the summing up in the context of reviewing the evidence his Honour said: "Now, there has been no challenge to the evidence that the accused had those beliefs. Based on that evidence, all the psychiatrists concluded that at the time he killed his father, as a result of a defect of reason from a disease of the mind, he did not know that what he was doing was wrong; those matters being sufficient to establish the defence of mental illness. And while I said that I was not going to express any view on what I saw as the major issue in the case, I am going to say that I cannot see any basis where rationally you would not find the mental illness defence was made out in relation to the killing of his father, there is just nothing to suggest that that killing was other than in circumstances which attracted a mental illness defence. Having said that, that applies to the death of his father, the first count. There was clearly evidence, if you accept it, which could be said to argue for the view that the defence of mental illness was not made out in relation to the other offences and that is a question I am going to express no view on, it is a matter for you." (SU 27)

6. [340]

   Later his Honour reminded the jury that: "... all three [psychiatrists] are of the view that in the case of the death of Gervasio Da-Pra, the accused had a defect of reasoning flowing from a disease of the mind and while he appreciated the nature and quality of his act, he did not know it was wrong. In other words, he had the mental illness defence." (SU 41)

7. [341]

   At the conclusion of the summing up the judge asked counsel whether there was any matter they wished to raise. Trial counsel for the appellant raised a matter in relation to Dr Allnutt's opinion in relation to counts 2 and 3 but expressed contentment with what his Honour had said about the unanimity of the experts in relation to count 1.

Determination of Ground 1

1. [342]

   The opinions of the psychiatrists were heavily dependent upon the histories provided by the appellant. The versions of events he provided to various witnesses were not entirely consistent. Accordingly it was a matter for the jury to assess whether the opinions of the psychiatrists were founded upon reliable material.

2. [343]

   In relation to count 1 it is not the case that the jury completely rejected the psychiatric evidence; they accepted that the appellant should be found guilty of manslaughter in lieu of murder on account of the partial defence of substantial impairment by abnormality of mind.

3. [344]

   The strong and clear terms in which the jury were directed in relation to the psychiatric evidence concerning count 1 largely conveyed the essence of what the appellant now complains was absent from the summing up. We are not persuaded that there was any miscarriage of justice on this account and leave to rely upon this ground ought to be refused. In any event, the reality is that the fate of this appeal depends more upon the determination of the other grounds.

Ground 2: The verdicts of the jury should be set aside on the ground that the verdicts are unreasonable, or cannot be supported, having regard to the evidence

1. [345]

   The relevant principles to be applied in the determination of such a ground were collected in SKA v The Queen [2011] HCA 13; 243 CLR 400 at 405-6 [11]-[14]: "It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the appellant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' ... In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".'" (Case citations omitted)

2. [346]

   The question posed by this ground is not whether the jury ought to have had a reasonable doubt about the appellant's guilt. The judge told the jury without contradiction that there was no dispute that each of the essential elements of the offences was established.

3. [347]

   It is unusual for a ground of appeal to assert that the verdict of a jury is unreasonable or unsupportable but in respect of a matter for which the appellant bore the onus of proof. Such a ground was raised in R v Thomas (Court of Criminal Appeal (NSW) 28 May 1996, unrep) where the issue was whether the appellant had discharged the onus of establishing that his possession of a traffickable quantity of a prohibited drug was not for the purpose of supply. The Court (Sperling J, Cole JA and Badgery-Parker J agreeing) characterised the ground as raising a question "whether the jury, acting reasonably, was required to be satisfied, on the balance of probabilities, as to the matter in question". Observations were also made about the difficulty for an appellant in establishing that a jury acted unreasonably in failing to be affirmatively satisfied of a matter for which he or she bore the onus of proof. With the proviso that it was not a concluded view, Cole JA (with whom Badgery-Parker J agreed) went further and observed that he "seriously doubted" whether a verdict of guilty could ever be regarded as "unsafe and unsatisfactory" in such circumstances.

4. [348]

   In our view, ground 2 should be regarded as raising a question whether the jury ought to have been satisfied on the balance of probabilities that the appellant was not guilty on the grounds of mental illness. However, we are of the view that there is no practical utility in the Court determining this ground given that the appellant also relies upon s 7(4) of the Criminal Appeal Act in relation to ground 3.

5. [349]

   Mason P (with the concurrence of Greg James and Levine JJ) said the following about s 7(4) in R v Derbin [2000] NSWCCA 361 at [12]-[13]: "The leading authority in this State relating to the scope of s7(4) is R v Jenkins (1963) 64 SR(NSW) 20. The Court of Criminal Appeal comprised Herron CJ, Walsh J and Ferguson J. Each member of the Court delivered a separate judgment covering inter alia the scope of s7(4). Since however the Chief Justice and Ferguson J agreed with Walsh J as to the relevant principles, it is sufficient for present purposes to set out the key portion of the judgment of Walsh J (at 29): 'In its terms, the provision appears to me to confer a power to examine the evidence and to act upon this Court's view of that evidence in appropriate cases. It is not merely a provision which can be applied in cases in which the Court, if no such provision existed, would think it proper to order a new trial under the provisions of ss6 and 8. Although it is applicable in such cases, I think it can be applied also in cases in which the Court is not prepared to hold that, in accordance with the principles relating to the granting of new trials, the jury's verdict was so perverse and unreasonable as to require it to be set aside. The jury's verdict might not be unreasonable in that sense and yet the Court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order under s7(4). The condition of the exercise of the power, as expressed in the subsection, is that it appears to the Court that the accused was mentally ill. But such cases as I have just described, as falling within the power conferred, will necessarily be of rare occurrence. For if the evidence, although strong in favour of the accused's case, is yet such that a jury, acting reasonably, could fail to be satisfied that it was established, it will rarely happen than an appellate court, acting merely upon a transcript of evidence, will feel satisfied that a different view will be taken. The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself.' See also Mizzi v The Queen (1960) 105 CLR 659, R v Fleeton (1964) 64 SR(NSW) 72, R v Weise [1969] VR 953."

6. [350]

   In Derbin, the primary ground of appeal asserted that the verdicts were unreasonable. Rather than the Court determining that ground under s 6(1) of the Criminal Appeal Act it confined its consideration to the s 7(4) issue, applying what was said in Jenkins.

7. [351]

   If an appeal under s 6(1) is upheld, then "subject to the special provisions of the Act" the Court is to quash the conviction and direct a judgment and verdict of acquittal: s 6(2). The "special provisions" referred to are to be found in ss 6A, 7 and 8. Insofar as they relate to conviction, they provide for substituting for the verdict found by the jury a verdict of guilty for some other offence (s 7(2)) and for ordering a new trial (s 8(1)). These are not outcomes the appellant seeks in this case.

8. [352]

   The appellant has confined the outcome he seeks: in lieu of the verdicts of the jury on each count the substitution of verdicts of not guilty on the grounds of mental illness pursuant to s 7(4) and a consequential order for his detention until released by due process of law. (AWS [253])

9. [353]

   If this Court was of the view that the jury ought to have been satisfied on the balance of probabilities that the appellant was not guilty on the grounds of mental illness in respect of any of the offences for which he was convicted, it could only be of that view if it was satisfied itself to that standard. That makes sense of the approach taken in Derbin in not separately determining the unreasonable verdict ground.

10. [354]

    In these circumstances, it is unnecessary for the Court to determine ground 2 but to proceed immediately to ground 3. Indeed, on the hearing of the appeal, Ms Loukas SC conceded on behalf of the appellant that if the Court did not find in his favour on Ground 3, Ground 2 would have no prospect of success (3.10.13 at T21.33)

Ground 3: This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) Criminal Appeal Act 1912 (NSW)

1. [355]

   It is appropriate to set out the terms of s 7(4) in full: "If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate."

2. [356]

   For the appellant it was observed that there was no challenge to the evidence that he was experiencing delusional beliefs. It was also observed, in relation to count 1, that the psychiatrists were unanimous that at the time of killing his father the appellant was experiencing a defect of reason from a disease of the mind such that he did not know what he was doing was wrong.

3. [357]

   In relation to counts 2 and 3, the submission for the appellant was to the effect that rejection of the defence of mental illness was against the weight of the evidence. Reference was made to a number of extracts from the evidence of the three psychiatrists. It is unnecessary to refer to all of them as the evidence has been extensively referred to earlier. However, by way of example, reference was made to Dr Nielssen being asked about the assumptions Dr Allnutt had been invited to consider in the context of his third report. Dr Nielssen likened it to assuming that at the time of attacking the Ws the appellant was "cured of being mentally ill"; that he was experiencing "a lucid interval or kind of island [of] sanity in a sea of madness". Reference was also made to the evidence of Dr Nielssen and Dr Reutens accepting that some of the appellant's actions might be thought to have been rational but they both considered that this did not detract from the availability of the defence. Another matter highlighted was the evidence of Dr Allnutt that the appellant was psychotic at the time of each of the offences.

4. [358]

   The submissions for the appellant also included reference to his prior good character. It was submitted that his lack of violent conduct in the past supported the proposition that he was mentally ill at the time of each attack.

5. [359]

   The appellant contended that the convictions on counts 2 and 3 were "fundamentally flawed" and that any conclusion based upon the factual assumptions set out in Dr Allnutt's third report did not withstand analysis. It was submitted that without those assumptions (most of which were the basis for the alternative opinion provided in the third report of Dr Allnutt) the case for finding the appellant not guilty on the grounds of mental illness in respect of the W offences was compelling.

6. [360]

   The Crown responded with acceptance that at the time of committing each of the offences the appellant was suffering from a mental illness. It was observed that each of the psychiatrists expressed the opinion that in respect of each offence he appreciated the nature and quality of his acts. The area of dispute was confined to whether he had the capacity to understand that what he was doing was wrong and was able to reason with a moderate degree of sense and composure.

7. [361]

   In respect of count 1, the Crown submitted that the various psychiatric opinions were undermined by the unreliability of the histories provided by the appellant. By way of example, a contrast was drawn between the accounts provided by the appellant to Dr Tahtouh, Nurse Owens and Dr Goh respectively.

8. [362]

   Another matter relied upon by the Crown was the commission by the appellant of various acts immediately after killing his father. The examples cited were the appellant's actions in cleaning the house and garage; hiding the body at another location; and creating an impression that there had been a robbery. The Crown described these acts as "calculated and rational" and submitted that they supported the jury's verdict.

9. [363]

   In respect of counts 2 and 3, the Crown submitted that this Court should conclude that the jury rejected the defences of mental illness and, in relation to the killing of EW, the partial defence of substantial impairment, based upon the evidence that the appellant:

   1. (1)

      went to the premises with the stated intention of threatening them, armed with a knife which he used to attack them;

   2. (2)

      broke into the home and attacked the Ws almost immediately, disabling both E and V by beating them to the head and face before slashing their throats;

   3. (3)

      after he thought he had killed them both, systematically disarranged the house to make it look as if there had been a home invasion.

10. [364]

    The Crown submitted that all of these matters, which were generally consistent with the assumptions upon which Dr Allnutt prepared his third report, were consistent with the appellant's expressed desire to create a diversion, and to obtain money to leave Sydney for the purposes of avoiding investigation. The Crown further submitted that all of the psychiatrists had expressed the opinion that the Ws had not been incorporated into the appellant's delusions, and that such opinions were based upon a number of different factual scenarios, all of which had been reasonably open on the evidence. Reliance was also placed upon the fact that all psychiatrists had expressed the opinion that the appellant had understood the nature of his actions.

11. [365]

    The Crown also submitted that the appellant had failed to give a truthful or detailed account of what had happened at the Ws' premises, and that the accounts he did give were inconsistent with the medical evidence relating to the injuries sustained by E, as well as being inconsistent with the evidence given by VW as to what had occurred.

12. [366]

    To the extent that the appellant relied specifically upon the opinion of Dr Nielssen in respect of counts 2 and 3 the Crown submitted that Dr Nielssen had relied significantly upon the appellant's account of what had happened at the Ws' home. It was submitted that such account had been given by the appellant 15 months after the offences had been committed, and at a time when he had already decided to plead not guilty on the grounds of mental illness.

13. [367]

    Ultimately, the Crown submitted that the jury's conclusions as to the offences committed against the Ws were open and that the various assumptions made by Dr Allnutt for the purposes of his third report had a clear evidentiary basis. It was submitted that in these circumstances, it was clearly open to the jury to accept the opinion expressed by Dr Allnutt in that report, and find the appellant guilty of counts 2 and 3.

14. [368]

    Finally, the Crown submitted that this Court would not regard itself as being in a better position than the jury to determine issues pertaining to the appellant's mental illness. It was also pointed out that the appellant carried the onus of proof in respect of the issue of mental illness, such that this Court should adopt a cautious approach and give the verdicts of the jury proper weight.

Determination in respect of count 1 - the killing of the appellant's father

1. [369]

   Each of the three psychiatrists expressed the opinion that the appellant lacked the capacity to understand that his actions in killing his father were wrong. These opinions have been quoted earlier (at [278]; [312]; and [325]).

2. [370]

   In our view, the difficulty with the Crown's submission concerning the unreliability of the histories provided by the appellant is that each of the three witnesses in question was not concerned to obtain a detailed account of the circumstances attending the commission of the offences, including the appellant's mental state at the time. Dr Tahtouh's conversation was very brief and occurred immediately before the appellant was sedated and treated for his serious burn injuries. Nurse Owens and Dr Goh both conceded that their task was more concerned with an assessment of the appellant's current mental state. The fact that there was no mention of bikies and the like in the histories provided on these occasions does not give rise to any material concern.

3. [371]

   Further, and in light of the evidence of what the Crown submitted were "calculated and rational" acts committed by the appellant after he had killed his father, there was psychiatric evidence which overwhelmingly supported the conclusion that a person suffering a mental illness, even to the point of being unable to reason with a moderate degree of sense and composure about one thing, is not rendered incapable of any rationality: for example, Dr Allnutt at T395.50; Dr Nielssen at T450.32; Dr Reutens at T469.50.

4. [372]

   It should not be forgotten that there was a considerable body of evidence before the jury which provided broad support for the proposition that the appellant did hold a delusional belief that in killing his father he would be saving his mother. Family, friends and acquaintances gave evidence which we have summarised in some detail earlier about the appellant's deluded belief that his family was the subject of extortion and death threats.

5. [373]

   We acknowledge that the jury is the body entrusted with the primary responsibility of determining guilt or innocence: M v The Queen [1994] HCA 63; 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen [1997] HCA 12; 191 CLR 439 at 450-451 (Gaudron, McHugh and Gummow JJ). We also appreciate the advantage that the jury had in seeing and hearing the evidence as it was given by the witnesses, particularly the expert witnesses. However, the evidence concerning the defence of mental illness in relation to count 1 was substantial and, in respect of the expert opinions, unanimous.

6. [374]

   We are satisfied on the balance of probabilities that at the time of killing his father the appellant was suffering from a defect of reason by a disease of the mind such that he did not know that he was doing was wrong in the sense that he was unable to reason about the matter with a moderate degree of sense and composure. It follows that we find that the jury ought to have been satisfied that the defence was made out.

Determination in respect of counts 2 and 3 - the killing of EW and the wounding of VW

1. [375]

   The determination of the appeal in respect of counts 2 and 3 necessarily requires some examination of the assumptions made by Dr Allnutt for the purposes of his third report. In short, if all of the assumptions are valid, it was open to the jury to conclude that neither the defence of mental illness nor (in relation to count 2) the partial defence of substantial impairment by abnormality of mind were made out. If one or more of the assumptions are not valid, it was open to the jury to conclude that one, or the other, or both such defences were available.

2. [376]

   The first assumption was that the appellant went to his neighbour's home to divert suspicion from himself in relation to the death of his father and he did that by trying to make it appear to be a home invasion. We accept the Crown's submission that there was an evidentiary foundation for that assumption in the following: The appellant told Detective Barnes after he was pulled from the burning car that, "after I did my Dad I went over there to get an alibi". In the note he gave to the administration assistant at Fairfield Hospital he had written, "I was looking for a way to create a diversion, so I went to the neighbours". The appellant told Nurse Owens he decided he needed money and went next door. He told Dr Goh that he thought he would go next door and "pretend that a home invasion had occurred there, take money and then leave the city". He told Dr Nielssen that he went to the neighbours to "create an alibi". He told Dr Allnutt that as he walked home after having left his father's car (with the body in the boot) at a nearby shopping centre, he thought of an alibi, namely to go to the neighbours and tell them that his car had broken down and he needed to use their phone. There were a number of aspects noted on the crime scene examination that were consistent with an impression having been created of there having been a home invasion (insect screens interfered with; telephone line damaged; bedrooms ransacked).

3. [377]

   Another assumption was that the appellant's thinking at the time was that he would go to the neighbour's home to obtain money so that he could leave the area and not be arrested by authorities in respect of the killing of his father. A foundation for that assumption is to be found in what he told Nurse Owens and Dr Goh.

4. [378]

   A further assumption was that the attack on the Ws was consistent with the earlier mentioned intentions and that after the attack he took steps to disturb things to make it appear a home invasion took place. We have referred above to matters providing an evidentiary foundation for this.

5. [379]

   The next assumption was that the appellant inflicted significant injuries to both victims in addition to the cutting of the throats, suggesting that they were at least more than momentary "slashing type attacks". There was quite clearly an evidentiary foundation for this assumption to be found in the medical evidence and the forensic biologist's evidence we summarised earlier (at [235]-[238]). The injuries to both E and VW were far more extensive than just the wounds to their necks. Moreover the observation made by Dr Orde concerning the four shallow "tails" in the skin adjacent to the major wound to EW's neck was quite inconsistent with her attack being comprised of "slashing". The evidence that she was supine at the time her throat was cut is equally inconsistent with the appellant's account of lashing out or slashing with a knife.

6. [380]

   Finally, Dr Allnutt was also asked to assume that the appellant's account that he believed he was being followed to the house by persons who had made threats to him previously could be rejected. There were grounds for circumspection about this claim in that the first known occasion of it being advanced was in Dr Nielssen's consultation with the appellant more than a year after the events. This belief of being followed was aligned to the appellant's claim that he mistook EW for an attacker, someone who was out to harm or kill him. That claim must also be regarded with circumspection.

7. [381]

   For the reasons we have set out, that the various assumptions underpinning Dr Allnutt's third report are clearly supportable by the evidence. They led to Dr Allnutt expressing the opinion which we have set out in detail earlier (at [296]-[299]).

8. [382]

   It follows that, unlike the case in respect of count 1, the expert psychiatric evidence in respect of counts 2 and 3 was not unanimous. The jury was required to consider and assess the entirety of that expert evidence, and make a determination of what evidence was accepted and what was not.

9. [383]

   In our view, the jury's verdict in respect of counts 2 and 3 is consistent with acceptance of the opinion expressed by Dr Allnutt in his third report. In circumstances where the assumptions which underpinned that opinion were, as we have pointed out, amply supported by the evidence, it was open to the jury to reject the defences raised and to find the appellant guilty of counts 2 and 3.

10. [384]

    The appellant bore the onus of proof in respect of the defence of mental illness and, in relation to count 2, the partial defence of substantial impairment. The psychiatric opinions were heavily dependent upon his version of events. The reliability of his various accounts was of crucial importance to acceptance of his case. Unlike count 1 and in contrast to Derbin, the evidence relating counts 2 and 3 did not involve unchallenged unanimous opinions by psychiatrists supported by the histories they obtained and by the independent evidence.

11. [385]

    We are not satisfied that the material relied upon for the opinions of Drs Nielssen and Reutens in relation to counts 2 and 3 was sufficiently reliable to accept on the balance of probabilities that the defence of mental illness was made out. To adopt the terminology of Walsh J in R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20, we do not consider that "the evidence was so strong in favour of the view that the appellant was mentally ill, so as not to be responsible according to law". For completeness we confirm that we find the verdicts of the jury on these counts were not unreasonable.

Conclusions on appeal against conviction

1. [386]

   The conviction and sentence for the manslaughter of Gervasio Da-Pra should be quashed. In lieu there should be substituted a verdict of not guilty on the grounds of mental illness.

2. [387]

   The appeal against conviction in respect of the murder of EW and causing grievous bodily harm with intent to murder VW should be dismissed.

Crown appeal against sentence

1. [388]

   R S Hulme J sentenced Mr Da-Pra (who we will now refer to as the respondent) on 4 June 2012 as follows: Count 1 - manslaughter of Gervasio Da-Pra: imprisonment for 6 years with a non-parole period of 4 years 6 months commencing 20 December 2009. Count 3 - infliction of grievous bodily harm with intent to murder VW: imprisonment for 6 years with a non-parole period of 4 years 6 months commencing 20 December 2012. Count 2 - murder of EW: imprisonment for 15 years with a non-parole period of 10 years commencing 20 December 2014.

2. [389]

   The total effective sentence, as earlier noted, was one of 20 years imprisonment with a minimum custodial component of 15 years. Absent the sentence for manslaughter, the remaining sentences comprise a total of 17 years with a minimum of 12 years.

3. [390]

   The maximum penalty for murder is imprisonment for life. Where the victim is a child there is a standard non-parole period of 25 years. The maximum penalty for causing grievous bodily harm with intent to murder is 25 years and there is a standard non-parole period of 10 years.

4. [391]

   Notice of the Crown appeal was filed and served within a fortnight of the sentences being imposed and accordingly there is no issue of delay.

The remarks on sentence

1. [392]

   The learned judge summarised the facts relating to each of the offences by reference to the evidence in the trial. It is unnecessary to rehearse this having regard to our earlier extensive review.

2. [393]

   His Honour was conscious of the need to act on findings of fact that were consistent with the jury's verdicts. But he added that he considered that the verdict of guilty of manslaughter on count 1 was "wrong". He indicated that he would sentence on that count on the basis of an acceptance of the unanimous psychiatric opinions that the respondent was suffering from a disease of the mind leading to a defect of reason but that it was not established that he did not know that what he was doing was wrong. He accepted that the respondent appreciated the nature and quality of his physical acts; his capacity to understand events was not substantially impaired; but that his capacity to judge whether his actions in killing his father were right or wrong was substantially impaired, as was his capacity to control himself.

3. [394]

   His Honour found that the respondent's attendance at the W home was deliberate but his intention in going there was unclear. But he was not satisfied that he attended with any premeditated intention to attack or kill, notwithstanding the immediacy of the attack upon Mrs W as soon as they reached the kitchen and the creation of signs of a home invasion. His Honour considered that the respondent's attacks upon V and EW "reflected some substantial mental aberration".

4. [395]

   We interpolate that the Crown correctly pointed out that in making these findings his Honour made no mention of the respondent being armed with a knife when he entered the W home. (CWS [63]) But this was a knife the respondent told the psychiatrists he had taken to carrying in order to protect himself from Boris and the bikies. There is no suggestion that he only armed himself with it when he decided to go to the W home.

5. [396]

   His Honour concluded that at the time of these offences the respondent had a defect of reason arising from a disease of the mind but said he was precluded by the jury's verdicts from finding that he either did not appreciate the nature and quality of his acts or know they were wrong. He was satisfied that the respondent's capacity to judge whether his actions were right or wrong and to control himself were substantially impaired by an abnormality of mind arising from an underlying condition but, in the case of the murder of EW, the degree of impairment was not so substantial as to warrant liability for murder being reduced to manslaughter.

6. [397]

   His Honour referred to the fact that the respondent was born in 1964 (and so was aged 45 at the time of the offences) and had no criminal record. Witnesses had given evidence in the trial of him never being violent, or having threatened violence, in the past. Reference was also made to him having been on a disability support pension but also having been a valued employee to Mr Cramp in his window tinting business in Queensland.

7. [398]

   There was acceptance that the respondent was "deeply sorry for his offences" and his Honour was satisfied there was no reasonable possibility of his re-offending, provided he remain on anti-psychotic medication as long as his treating psychiatrist required and abstain from alcohol, cannabis and other drugs.

8. [399]

   His Honour appears to have accepted a submission by the respondent's counsel that he would take his self-immolation into account as demonstrative of remorse but he also took it into account as "extra curial punishment".

9. [400]

   Favourable findings were also made on account of the respondent's facilitation of the administration of justice by the manner in which the defence was conducted at trial (s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and for his assistance in the investigation by making admissions (s 23).

10. [401]

    His Honour referred to the purposes of sentencing and principles relating to sentencing of offenders with a mental illness or disorder. He concluded that general and personal deterrence in this case should be given little weight. He did not consider that the respondent's rehabilitation would be advanced by any further substantial time in custody. Protection of the community did not require that he be kept there any longer than for his treating doctors to be satisfied he will continue to take his medications and abstain from using alcohol and illegal drugs. It was only retribution that justified any further substantial time in custody.

11. [402]

    In turning to the sentence to be imposed, his Honour referred to the respondent's abnormality of mind in relation to the manslaughter offence as "very high on the scale". He considered the sentence for the murder of EW should be "substantially less than it would otherwise have been", "bearing in mind the significance of his schizophrenia to ... the offending", "particularly as there is nothing to suggest that prior to his offending the [respondent] ever consciously realised the mental state he was in or what his drug taking might lead to". He also considered that the self-immolation issue warranted a further reduction.

12. [403]

    After indicating the terms of the sentences he was going to impose, his Honour referred to the principle of totality and his intention to order that the sentences be partially accumulated.

Grounds of appeal

1. [404]

   The Crown raises the following grounds of appeal: Ground 1: His Honour erred in failing to give effect to the jury verdict in relation to the murder of EW leading his Honour to impose a sentence that was in the circumstances, manifestly inadequate. Ground 2: His Honour erred in failing to properly assess the objective seriousness of the murder of EW and the attempted murder of VW leading his Honour to impose a sentence that was in the circumstances, manifestly inadequate. Ground 3: His Honour erred in failing to give appropriate consideration to the standard non-parole periods and maximum penalties for the murder of EW and the attempted murder of VW leading his Honour to impose a sentence that was in the circumstances, manifestly inadequate. Ground 4: His Honour erred in his approach the respondent's mental illness leading his Honour to impose sentences that were in the circumstances, manifestly inadequate. Ground 5: His Honour erred in reducing the penalty imposed on the respondent pursuant to sections 22A and 23 Crimes (Sentencing Procedure) Act. Ground 6: His Honour erred in failing to adequately accumulate the sentences, leading to a manifestly inadequate total sentence and a manifestly inadequate total non-parole period. Ground 7: His Honour imposed sentences that are in the circumstances, manifestly inadequate.

Ground 1 - failing to make factual findings in relation to the murder

1. [405]

   Written submissions by the Crown referred to authority for the proposition that a judge must sentence on the basis of findings that are consistent with the verdict of the jury. This is uncontroversial.

2. [406]

   It was submitted that to have found the respondent guilty of the murder of EW, the jury must have rejected the proposition that his mental illness substantially impaired his capacity to understand events, or judge whether his actions were right or wrong, or to control himself, and that the mental illness was so severe as to extinguish his moral culpability for murder.

3. [407]

   The Crown challenged a number of aspects of the fact finding task with which his Honour was engaged. The essence of the challenge is encapsulated in the following from the written submissions: "Ultimately his Honour made no findings as to why the respondent went to the [Ws], made no findings about the knife, made no findings as to why he attacked the [Ws] but found the attack on the [Ws] was not premeditated, made no findings as to why he ransacked the house, and appears to have not accepted the evidence of Dr Allnutt that the respondent was not substantially impaired."

4. [408]

   For the respondent it was submitted that his Honour's approach to the fact finding exercise, difficult as it was, had firmly at the forefront the need for consistency with the verdicts of the jury. It was contended that nothing his Honour found, or did not find, was inconsistent with the verdicts and so no error was demonstrated.

5. [409]

   In oral submissions, Ms Dowling SC accepted for the Crown that the sentencing exercise in this case was "extremely difficult". (3.10.13 at T24.14) We accept that as well. In large part the only account of what occurred came from the respondent in what he related to the psychiatrists and various others. It is clear from the summary we have earlier provided that there were elements of both consistency and inconsistency.

6. [410]

   We do not accept the Crown's characterisation of what the jury must have rejected in not finding the partial defence of substantial impairment established in relation to the killing of EW. The Crown submissions argue that the jury must have rejected both aspects of that defence (the matters in both s 23A(a) and (b)). That may be the case but it is not necessarily so as a matter of law. It is possible that the jury found at least one aspect of the first part of the defence established on the balance of probabilities (that there was substantial impairment of either the respondent's capacity to understand events, to judge whether his actions were right or wrong, or to control himself) but they were not prepared to accept that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

7. [411]

   His Honour accepted the evidence of Ms VW. That established that after entering the house the respondent accompanied her to the kitchen where he immediately commenced punching her to the head until she lost consciousness. The medical evidence established that the respondent delivered one or more blows to EW. He then savagely cut both victims' throats, certainly when EW was lying on her back on the floor and likely VW was on the floor as well.

8. [412]

   The jury's rejection of the respondent's defences did not necessitate the judge making a definitive finding as to why he went to the W home. There was no dispute amongst the psychiatrists that his thinking was affected by a mental disorder. He certainly spoke subsequently of a home invasion and seeking to establish an alibi; and he did take rudimentary steps to make it appear that the house had been broken into. But the most significant finding by the judge, that the evidence did not establish that a murderous assault upon the occupants was premeditated, was one that was open to him to find.

9. [413]

   We do not uphold Ground 1.

Grounds 2 and 3 - failing to properly assess the objective seriousness of the offences and give appropriate consideration to the standard non-parole periods and maximum penalties in relation to the murder of EW and the attempted murder of VW

1. [414]

   These grounds were addressed together in the Crown submissions and we will do likewise.

2. [415]

   It was acknowledged that since Muldrock v The Queen [2011] HCA 39; 244 CLR 120 it is no longer necessary to classify the objective seriousness of a standard non-parole period offence according to a range. But reference was made to Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [46] where Johnson J reminded that assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process, a purpose of which is to determine a sentence that is proportionate to such gravity.

3. [416]

   In written submissions (CWS [98]) there were listed a number of characteristics of the offending that, so it was contended, warranted a finding that they fell within the worst case category. The Crown accepted, however, that his Honour was "clearly conscious" of each of those matters. The gravamen of the complaint is that notwithstanding this, there was a failure to make any assessment as to the objective seriousness of the offences.

4. [417]

   It was also acknowledged (CWS [101]) that his Honour did refer to the maximum penalties and standard non-parole periods applicable to the offences in counts 2 and 3 but the submission was made that "his Honour appears to have proceeded on the assumption that the SNPP had no relevance at all in light of the respondent's mental illness".

5. [418]

   The respondent referred to Mulato v R [2006] NSWCCA 282 where Spigelman CJ (at [37]) and Simpson J (at [46]) made statements to the effect that the assessment of the objective seriousness of an offence is primarily one for sentencing judges and that this Court would be slow to intervene by substituting its own view. But this does not provide a direct answer to the Crown's complaint that the judge made no assessment at all.

6. [419]

   Submissions were also made by the respondent concerning the imposition of a life sentence for murder. These do not require attention as the Crown is not suggesting that such a sentence should have been imposed in this case.

7. [420]

   We do not accept the Crown's contention that the judge assumed that the standard non-parole periods "had no relevance at all in light of the respondent's mental illness". For such a contention to be accepted in relation to judge so experienced in the criminal jurisdiction there would need to be a very clear foundation for it. The fact that the submission was couched in terms of "appears to have" is indicative of there not being such a foundation. The Crown's complaint really is that the sentences imposed do not adequately reflect the legislative guideposts of the maximum penalties and the standard non-parole periods. That is a matter that falls for determination under the final ground.

8. [421]

   We accept that the judge did not state a definitive finding about the objective seriousness of either of the offences in counts 2 and 3. But it seems clear enough that he acknowledged their obvious objective seriousness but found that the respondent's moral culpability was significantly reduced on account of his mental condition. Whether excessive weight was given to that condition can only be measured by an assessment of the adequacy of the sentences imposed; again a matter that falls for determination under the final ground.

9. [422]

   These grounds fail.

Ground 4 - error in the approach to the respondent's mental illness

1. [423]

   The Crown did not suggest that his Honour was not cognizant of sentencing principles relating to offenders with a mental illness. He quoted Muldrock v The Queen at [53]-[54] and summarised the principles that are conveniently collected in a number of judgments of this Court: for example, see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]-[178] (McClellan CJ at CL).

2. [424]

   The Crown accepted that it was appropriate for less weight to be given to general and personal deterrence on account of the causative role of the respondent's mental illness. It was submitted, however, that his Honour erred in his approach to the correct degree of mitigation to allow and permitted this factor to overwhelm other sentencing considerations. It was said that this was apparent from (a) his reluctance to make the findings referred to in the context of Ground 1; (b) his unduly optimistic findings concerning future dangerousness and there being less need for protection of the community; and (c) his Honour's approach to the purposes of sentencing.

3. [425]

   Nothing further was submitted, and nothing more needs to be said, about the first of those matters.

4. [426]

   The Crown submitted that the qualifications his Honour mentioned in relation to his finding that "there is in my view no reasonable possibility of his re-offending", namely that he remain on anti-psychotic medication and abstain from alcohol and illegal drugs, were "very significant qualifications".

5. [427]

   The respondent had a long history of abusing both alcohol and illicit drugs. Dr Allnutt's evidence included his assessment that the respondent probably had a substance abuse disorder and likely an alcohol abuse disorder.

6. [428]

   There was a report by Dr White, a psychiatrist with Justice Health, to the effect that the respondent had adhered to his medication regime, had insight into his condition and appeared prepared to remain on medication indefinitely. Dr White also reported that the respondent was aware that substance abuse worsened his mental illness and that he needed to remain abstinent.

7. [429]

   The judge specifically accepted that the respondent would likely remain compliant in relation to taking his medication. Whilst some might hesitate to make such a finding, particularly without having heard any evidence from the offender in question and having regard to the fact that demonstrated compliance with medication had only been in the controlled environment in custody, we cannot conclude that this was a finding that was not open to be made.

8. [430]

   We do not accept the Crown's criticism that it was "unreasonably optimistic" for his Honour to also find that the respondent would remain abstinent from alcohol and drugs. No such finding was made.

9. [431]

   The Crown's contention might have some force if the judge had made an unequivocal finding of "no likelihood of re-offending". But he did not. It was a finding qualified in the way the Crown has recognised.

10. [432]

    Finally in relation to this ground, the Crown was critical of his Honour's approach to the "purposes of sentencing". He found that "it is only retribution that justifies any further substantial time in custody" (R/S [67]. It is worth quoting exactly what was said: "[65] The purpose for which a Court may impose a sentence are set out in s 3A of the Crimes (Sentencing Procedure) Act but it is sufficient for present purposes if I use the formulation in Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 476 - "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". ... [67] In the case of the Prisoner, because of my assessment of him and what I see as to the significance of his schizophrenia, I think that general deterrence should be given little weight. (The High Court in Muldrock v The Queen was content to accept the trial judge's view that general deterrence had no weight.) For the same reasons, and because the Prisoner's self-immolation is the clearest possible evidence of his remorse, I take the same view of personal deterrence. I do not think that any further substantial time in custody will further the Prisoner's reform or rehabilitation and I do not see that the protection of the community requires he be kept there longer than for his treating doctors to be satisfied that he will continue to take his medications and abstain from illegal drugs and alcohol. In his case it is only retribution that justifies any further substantial time in custody. ..."

11. [433]

    No explanation was given as to why it was "sufficient for present purposes" to use the formulation in Veen v The Queen [No 2] [1988] HCA 14; (1987-1988) 164 CLR 465 at 476. The seven "purposes for which a court may impose a sentence" set out in s 3A of the Crimes (Sentencing Procedure) Act are more elaborate and explicit than the four matters mentioned there. Much depends upon what is meant by the concept of "retribution". If it is taken to mean only punishment (s 3A(a)), then there are some matters in s 3A that have been left out of the sentencing assessment. But if a broader meaning is assigned to it so that it also incorporates making an offender accountable for his or her actions, denunciation of the conduct, and recognition of the harm done to the victim and the community (s 3A(e)-(g)) then none of the matters in s 3A have been ignored.

12. [434]

    We consider it highly unlikely that a judge with the experience of R S Hulme J would consider it appropriate to completely ignore the factors listed in s 3A(e)-(g). They are clearly relevant matters to consider in any sentencing exercise; a consideration that is more often intuitive with experienced judges without any need to mechanically set out conclusions as to each matter. The better view than that propounded by the Crown is that his Honour had all relevant sentencing purposes in mind and it was only for brevity that he referred to the formulation in Veen v The Queen [No 2] rather than to recite the lengthier list of essentially the same matters provided by the statute. Accordingly, when his Honour said that it was only "retribution that justifies any further substantial time in custody" we consider that he was speaking of four of the purposes of sentencing in s 3A (namely (a) and (e)-(g)).

13. [435]

    The Crown submissions go too far in asserting that his Honour completely rejected deterrence as a relevant consideration. (CWS [228]) His Honour in fact said that both general and personal deterrence would be given "little weight", not "no weight".

14. [436]

    It was open to his Honour to make that finding in relation to general deterrence having regard to the severity of the respondent's mental illness and its causative relationship with the offending. Questions of weight are, as the submissions for the respondent remind us, largely matters for primary judges and about which this Court is slow to substitute its own view: see, for example, R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ).

15. [437]

    Having said that, however, we do consider that his Honour was in error on the topic of personal deterrence. It should have had a real bearing on the assessment of sentence. The respondent had shown that when he was afflicted by mental illness, with the condition exacerbated by alcohol and substance abuse, he was capable of the most extreme forms of violence with disastrous and tragic consequences. The qualifications to his Honour's finding about the prospect of reoffending warranted a clear and unequivocal message to be sent to the respondent that compliance with medication and abstention from alcohol and drugs was of the utmost importance. Compliance and abstention while in custody is one thing; doing the same whilst at large in the community remains to be seen. Personal deterrence warranted significantly more than "little weight".

16. [438]

    We uphold this ground, but only in the limited respect just mentioned.

Ground 5 - error in reducing the sentence pursuant to ss 22A and 23 of the Crimes (Sentencing Procedure) Act

1. [439]

   Section 22A provides that a court may impose a lesser penalty having regard to the degree to which the administration of justice has been facilitated by the defence before or during a trial.

2. [440]

   Section 23 provides that a court may impose a lesser penalty having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection, or investigation of, or in proceedings relating to, the offence concerned or any other offence.

3. [441]

   In our earlier summary of the sentencing remarks we referred to the passage at [59] where his Honour indicated his acceptance of submissions that had been made in relation to these provisions. He referred to the limited issues upon which the trial had been contested and the admissions made by the respondent that assisted the investigation.

4. [442]

   The Crown submitted that there was no warrant to allow a reduction of sentence pursuant to s 22A. For the respondent not to have acknowledged his physical responsibility for the deaths of his father and EW and his attempt to kill VW would have been entirely inconsistent with his case that he should be absolved, or partially absolved, of criminal responsibility on the basis of his mental state.

5. [443]

   The respondent countered that mitigation was warranted by virtue of the co-operative approach taken by the defence agreeing as to witnesses required to be called; making plain to the jury the limited nature of the issues and conducting the trial in that manner; and also making formal concessions as to documents and handwriting.

6. [444]

   In relation to s 23, the Crown submitted that the provision was not intended to justify a reduction of sentence on account of the making of admissions concerning the offending the subject of the proceeding.

7. [445]

   There is some controversy in this Court about the type of assistance to law enforcement authorities s 23 is concerned with. See the competing views expressed in the judgments in RJT v R [2012] NSWCCA 280; 218 A Crim R 490, and, recent reference to the uncertainty of the breadth of reach of s 23 in the judgment of Leeming JA in Peiris v R [2014] NSWCCA 58 at [38]. In another recent case, Mencarious v R [2014] NSWCCA 104, Adams J (with the concurrence of Simpson and McCallum JJ) (at [22]) extended the potential availability of s 23 mitigation of sentence to an offender who voluntarily attended a police station a few hours after having murdered his wife. Having regard to what was said in the earlier cases, it is not clear that such a proposition would be universally accepted.

8. [446]

   The submission for the respondent was that his Honour attributed little weight to these matters. They were mentioned in a single paragraph towards the end of his sentencing remarks and were prefaced by: "Lest it be thought they have been forgotten, I mention some other matters to which counsel referred."

9. [447]

   His Honour did not recite any consideration of the various factors that s 23(2) requires a judge to consider and nor did he comply with s 23(4) which requires a judge to do certain things, including to indicate that a lesser penalty was being imposed on account of the offender's assistance and to state the penalty that would otherwise have been imposed.

10. [448]

    There is force in the respondent's submission. Of the myriad complex factors his Honour considered and discussed in the course of his judgment, these matters pale into insignificance. It is very doubtful that, if there was error, it had any material bearing upon the sentence imposed. We are not critical of the Crown for raising it but we do not uphold it.

Ground 6 - failure to adequately accumulate the sentences

1. [449]

   The submission of the Crown that is central to this ground is that neither the overall sentence nor the non-parole period reflects the total criminality of the respondent's offences.

2. [450]

   The Crown was correct to recognise that the question whether to order that sentences be served concurrently, cumulatively, or partially so is discretionary. And, as Howie J pointed out in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27], crucial to the exercise of the discretion is the principle of totality of criminality: "can the sentence for one offence comprehend and reflect the criminality for the other offence?" A useful discussion of the relevant principles and factors favouring either concurrence or accumulation appears in the judgment of Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52].

3. [451]

   There is no doubt about the judge being aware of and seeking to apply the principle of totality. He specifically adverted to it in the concluding paragraph of his sentencing remarks before announcing the individual sentences.

4. [452]

   This ground is relevant to the ultimate question: are the individual sentences and their total effect manifestly inadequate? This will be considered in the context of the final ground.

Ground 7 - the sentences imposed for the murder of EW and the attempted murder of VW are manifestly inadequate

1. [453]

   The primary argument for the Crown is that the sentences for these offences are each manifestly inadequate and the degree of accumulation of the sentences renders the total term manifestly inadequate as well. This is particularly so having regard to their objective seriousness and the applicable maximum penalties and standard non-parole periods. It was contended that the degree of amelioration of the sentences on account of the respondent's subjective circumstances, primarily his mental illness, was excessive.

2. [454]

   The Crown did not challenge the proposition that the respondent's mental illness was "a highly relevant matter to take into account on sentencing". It was accepted that "it did serve to greatly mitigate the sentence that would otherwise have been appropriate".

3. [455]

   Earlier in the written submissions (CWS [103]ff) the Crown referred to nine cases in which an offender had been sentenced for murder where the higher standard non-parole period of 25 years applied because the victim was a child. It is unnecessary to refer to the cases in detail; the essential point was that where a life sentence was not imposed, the non-parole periods have ranged from 17 years up to 30 years. Here, in relation to the murder of EW, the non-parole period was only 10 years.

4. [456]

   Judicial Commission sentencing statistics were also relied upon in relation to the sentence for the attempted murder of VW. They indicated that since the introduction of the standard non-parole period for this offence in 2006, non-parole periods imposed have ranged from 4 years and 6 months up to 16 years. The one non-parole period of 4 years and 6 months imposed involved an offender who had pleaded guilty. The respondent received such a non-parole period following his plea of not guilty in respect of the offence in count 3.

5. [457]

   Care is obviously required in relation to the consideration of past sentencing decisions. The correct approach was described by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa; an approach endorsed by the High Court of Australia in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]. Her Honour said: "[303] A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. [304] But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]. [305] In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender..."

6. [458]

   The respondent challenged the Crown's reference to other cases and provided a useful summary of a variety of ways in which they were distinguishable. It may be readily accepted that they are distinguishable; that is apparent from the fact that they all brought sentences substantially exceeding those which were imposed in the present case.

7. [459]

   One particular case the Crown referred to in relation to attempted murder bears attention: Cvetkovic v R [2013] NSWCCA 66. It involved a man who was estranged from his wife. One day after they met to discuss a financial settlement they were in a car together when he produced a "gyprock saw" and stabbed her at least 30 times from which she miraculously survived but required over 9 hours of surgery and was left with ongoing physical and psychological harm of significant severity. The offender was convicted after trial. Two eminent forensic psychiatrists found he was suffering from depression; Dr Bruce Westmore diagnosed a major depressive illness which appears to have been accepted by Dr Nielssen. However, there was found to be no error in the sentencing judge finding that this did not mitigate the offender's conduct to any great degree.

8. [460]

   McCallum J (with the concurrence of Price and Schmidt JJ) (at [87]) endorsed the sentencing judge's finding that "this was a very serious offence falling little short in culpability of the offence of murder". A sentence of 17 years 4 months with a non-parole period of 13 years was found to be "stern" but not outside "the proper range".

9. [461]

   We are persuaded that the sentence imposed in this case for the attempted murder of VW was demonstrably inadequate. Putting to one side for the moment the respondent's mental illness, the physical attributes of the offence renders it one that can also be described as falling little short in culpability of the completed offence. Ms W was extremely fortunate not to have succumbed to an attack by an intruder into her home in which death was clearly intended and thought by the respondent to have been achieved.

10. [462]

    Allowing full weight for the mitigating factors that need to be brought into account for the respondent's prior blameless life and his mental illness (reduced moral culpability; little weight to general deterrence; and, we accept, more onerous custodial conditions) but giving greater emphasis than the primary judge gave to personal deterrence, respect for the legislative guideposts of the maximum penalty and the standard non-parole period demanded that a significantly greater sentence be imposed.

11. [463]

    We are of the same view with regard to the sentence for the murder of EW. A 15 year sentence with a 10 year non-parole period does not reflect the denunciation required for the callous and savage taking of the life of an entirely innocent 12 year-old girl in her home. If not for the respondent's mental illness, it would have called for a sentence involving a non-parole period of at least, and probably greater, than the 25 year standard. A significant reduction of that sentence was required, but too much allowance in the respondent's favour has been made.

12. [464]

    We do not accept the respondent's submission that this is an appropriate case for the Court to exercise its residual discretion to dismiss a Crown appeal notwithstanding error (largely latent) having been identified.

13. [465]

    Reference was made to the majority judgment in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [2] and [43] where examples were given of reasons for exercising this discretion (disparity; delay; an imminent or past parole release date; and disruption of rehabilitation). The respondent submitted that delay and progress towards rehabilitation were applicable here.

14. [466]

    Delay is of some relevance. The appeal was brought promptly by the Crown but the hearing was delayed for well over a year; we assume because of the filing of the notice of appeal against conviction on 28 June 2013. It is now over two years since the respondent was convicted and sentenced.

15. [467]

    An affidavit affirmed by the respondent shortly before the hearing of the appeal was read. It confirmed that he continues to receive psychiatric treatment and has been compliant with the need to take medication. He has experienced some conflict with other inmates because of his crimes and is housed in a mental health unit with limited association with others. He is receiving family visits and keeps busy working. Finally, he said that he is anxious about the Crown appeal.

16. [468]

    These matters were not challenged by the Crown and should be taken into account. They are relevant to the assessment of sentence but in our view do not provide a basis to refrain from intervention.

17. [469]

    The sentence for the attempted murder of VW should be one of 10 years. It is necessary for there to be a non-parole period; notwithstanding it will have no practical effect: see s 45(1) Crimes (Sentencing Procedure) Act.

18. [470]

    The sentence for the murder of EW should be one of 20 years.

19. [471]

    We propose to accumulate the sentences so that the overall term will be one that reflects the totality of criminality inherent in the murder of a child and a serious example of attempted murder, attenuated to a significant extent on account of the respondent's reduced moral culpability because of his mental illness.

20. [472]

    The sentence for the murder will include a non-parole period that reflects the finding of the sentencing judge of special circumstances so as to preserve (with rounding, something close to ) the usual ratio of non-parole and parole periods in the overall term.

21. [473]

    The total effective sentence we propose is one of 25 years with a non-parole component of 18 years.

Orders

1. [474]

   We propose the following orders: 1 Leave to appeal against conviction granted and appeal allowed in part. 2 Quash the conviction for the manslaughter of Gervasio Da-Pra and in lieu, enter a verdict of not guilty on the grounds of mental illness. Order that Renzo Da-Pra be detained in strict custody until released by due process of law. 3 Crown appeal against sentence allowed and sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed. In lieu, the respondent is sentenced as follows: Count 3 (infliction of grievous bodily harm with intent to murder VW): sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 20 December 2009 with the non-parole period expiring on 19 June 2017 and the total term expiring on 19 December 2019. Count 2 (murder of EW): sentenced to imprisonment comprising a non-parole period of 13 years and a balance of the term of the sentence of 7 years. The sentence will date from 20 December 2014 with the non-parole period expiring on 19 December 2027 and the total term expiring on 19 December 2034. The respondent will become eligible for release on parole when the last non-parole period ends on 19 December 2027.