Abduramanoski v The State of Western Australia
[2019] WASCA 216
•11 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ABDURAMANOSKI -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 216
CORAM: MAZZA JA
BEECH JA
VAUGHAN JA
HEARD: 11 DECEMBER 2019
DELIVERED : 11 DECEMBER 2019
PUBLISHED : 11 MARCH 2020
FILE NO/S: CACR 94 of 2019
BETWEEN: MICHAEL ABDURAMANOSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GLANCY DCJ
File Number : IND 274 of 2019
Catchwords:
Criminal law - Appeal against sentence - Plea of guilty - Four counts of gaining benefit by fraud - One count of bringing into Western Australia property from fraud - Offending in breach of suspended imprisonment order and conditional suspended imprisonment order - Total effective sentence 3 years 6 months' imprisonment - Miscarriage of justice - Evidence of intellectual disability not before sentencing judge - Ground of appeal conceded by the State
Criminal law - Appeal - Procedure - Successful appeal against sentence - Power of Court of Appeal to remit matter to District Court for resentencing
Practice and procedure - Application to adduce additional evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 31(5), s 41
Criminal Code (WA), s 409(1)(c), s 563A(1)(b)
Sentencing Act 1995 (WA), s 9AA
Result:
Applications to adduce additional evidence granted
Appeal allowed
Remitted to District Court for resentencing
Category: B
Representation:
Counsel:
| Appellant | : | E R Zillessen |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420
Krijestorac v The State of Western Australia [2010] WASCA 35
The State of Western Australia v Malone [2015] WASCA 188
Wellstead v The State of Western Australia [2019] WASCA 130
REASONS OF THE COURT:
This is an appeal against sentences imposed in the District Court for five offences of dishonesty and for other offences for which the appellant had earlier been sentenced to suspended imprisonment and conditional suspended imprisonment.
The appellant was charged on indictment in the District Court with five dishonesty offences which were alleged to have occurred on various dates in 2018 (the offences). Counts 1, 2, 4 and 5 alleged that the appellant, with intent to defraud by deceit or fraudulent means, gained a benefit contrary to s 409(1)(c) of the Criminal Code (WA) (the Code). Count 3 alleged that the appellant brought into Western Australia property which constituted the proceeds of an offence, namely fraud, contrary to s 563A(1)(b) of the Code.
On 6 June 2019, the appellant was convicted on his pleas of guilty of each of the offences. At the time of committing the offences the appellant was subject to a conditional suspended imprisonment order (CSIO) imposed by the District Court on 14 December 2017, and a suspended imprisonment order (SIO) imposed by the Perth Magistrates Court on 19 December 2017. The CSIO was in respect of an offence of possessing a prohibited drug, namely MDA, with intent to sell or supply. The SIO was in respect of an offence of being armed with a lever‑action shotgun in circumstances likely to cause a person to be in fear. Upon pleading guilty to the offences, the appellant admitted that he had breached the CSIO and the SIO.[1] Thus, the sentencing judge (Glancy DCJ) was required to sentence the appellant in respect of both the offences and the breaches of the CSIO and SIO.
[1] ts 230 - 231; AB 111 - 112.
The details of the sentences imposed by her Honour are tabulated below:
Charge no.
Description of charge
Outcome
Max sentence
Sentence
IND 274 of 2019
Count 1:
JO 14907/ 2018Gain benefit by fraud: s 409(1)(c) the Code: 19 Feb 2018 sold earrings on Gumtree to woman in Qld Convicted 6 Jun 2019 7 years' imprisonment 6 months' imprisonment cumulative Count 2:
JO 14905/ 2018Gain benefit by fraud: s 409(1)(c) the Code: 12 Sep 2018 bought ring on Gumtree from woman in Qld Convicted 6 Jun 2019 7 years' imprisonment 12 months' imprisonment head sentence Count 3: JO 14908/ 2018 Brought into WA property from fraud: s 563A(1)(b) the Code: 15 Sep 2018 brought ring from count 2 to WA Convicted 6 Jun 2019 20 years' imprisonment 12 months' imprisonment cumulative Count 4: JO 14906/ 2018 Gain benefit by fraud: s 409(1)(c) the Code: 18 Sep 2018 bought ring on Gumtree Convicted 6 Jun 2019 7 years' imprisonment 12 months' imprisonment concurrent Count 5: JO 1006/ 2019 Gain benefit by fraud: s 409(1)(c) of the Code: 21 Nov 2018 bought iPhone 8 Plus on Gumtree Convicted 6 Jun 2019 7 years' imprisonment 6 months' imprisonment concurrent Breach of SIO
JO 6417/ 2016
Armed with dangerous weapon to cause fear: s 68(1) the Code: 13 May 2016 in Darch, walked around in public with a shotgun Convicted 19 Dec 2017, originally sentenced to 9 months' imprisonment suspended for 1 year 3 years' imprisonment 9 months' imprisonment concurrent Breach of CSIO (IND 252 of 2017)
JO 6419/ 2016 Possession of prohibited drug with intent to sell or supply: s 6(1)(a) MDA: 27 May 2016 possess 470 pills weighing 133 g of 12% pure MDMA Originally sentenced 14 December 2017 to 18 months' imprisonment suspended on conditions for 2 years 25 years' imprisonment 12 months cumulative (reduced from 18 months for totality) Total effective sentence: 3 years 6 months' imprisonment, eligible for parole, to commence 6 June 2019
The appellant, in effect, accepted that, based on the information that was put before the learned sentencing judge, at the time she passed sentence, both the individual sentences and the total effective sentence were appropriate. In other words, the individual sentences and the total effective sentence were within the sound exercise of her Honour's sentencing discretion.[2]
[2] Affidavit of Ms Zillessen, par 4; AB 7.
However, subsequent to the sentencing, the appellant was examined by a clinical neuropsychologist, Dr Mandy Vidovich. As a consequence, Dr Vidovich produced three reports dated 7 October 2019, 8 October 2019 and 11 November 2019. These reports are the subject of the appellant's applications to adduce additional evidence in the appeal filed 29 October 2019 and 21 November 2019. They reveal that the appellant suffers from a significant intellectual disability, the details of which will be described below. The existence of this disability was apparently undiagnosed at the time of the appellant's sentencing. Certainly, its existence was not known to the learned sentencing judge.
The sole ground of appeal relied upon by the appellant alleges that the appellant has suffered a miscarriage of justice, in effect, because evidence of the appellant's intellectual disability was not before the learned sentencing judge. The appellant contends that, if it had been, a less severe sentence would have been imposed.
The respondent did not oppose the applications to adduce additional evidence. Further, the respondent conceded that the appellant suffers from a significant intellectual disability and that, had that fact been known at the time of sentencing, the appellant should have received a lower sentence of immediate imprisonment than that imposed by her Honour.[3] The respondent conceded that the appeal should be allowed and the appellant resentenced.[4]
[3] Respondent's written submissions, pars 12 - 15; AB 94 - 95.
[4] Respondent's written submissions, par 22; AB 97.
On 11 December 2019, this court made the following orders:
1.The appellant's applications to adduce additional evidence filed 29 October 2019 and 21 November 2019 are granted.
2.Leave to appeal is granted on ground 1.
3.The appeal is allowed.
4.All of the sentences imposed by Glancy DCJ on 6 June 2019, being the charges in indictment 274 of 2019 and for the breaches of the conditional suspended imprisonment order and the suspended imprisonment order are set aside.
5.The appellant shall be resentenced by a judge of the District Court in respect of all of the matters referred to in order 4.
6.The appellant is remanded to appear in the District Court at a sentence mention list at 9.00 am on 20 December 2019.
7.The appellant is granted bail to appear in the District Court at 9.00 am on 20 December 2019 on the following terms and conditions:
(a)He shall enter into a personal undertaking in the sum of $5,000.
(b)The appellant shall reside at 101 Wilmington Crescent, Balga.
(c)The appellant shall report to the Officer in Charge of the Mirrabooka Police Station each Monday, Wednesday and Friday at a time to be nominated by that Officer.
(d)The appellant shall within 2 working days of his release from custody surrender his passport to a Registrar of the District Court.
(e)The appellant shall not apply for any other passport.
The court said that it would publish its reasons at a later date. These are our reasons for making the orders.
The facts of the appellant's offending
The facts of the appellant's offending are as follows. We will deal first with the offences the subject of the indictment. What follows comes from her Honour's sentencing remarks.[5]
[5] ts 245 - 246; AB 126 - 127.
As to count 1, the appellant placed an advertisement on the Gumtree website, offering to sell a pair of diamond earrings for $500. The victim, who lives in Queensland, agreed to purchase the earrings for the asking price. She deposited $500 into the appellant's bank account. The appellant then provided the victim with a false Australia Post tracking number and informed her that the earrings had been sent to her. In fact, the appellant never had any earrings to sell. The victim neither received the earrings nor the return of her money.[6]
[6] ts 245; AB 126.
As to counts 2 and 3, on 12 September 2018 the appellant agreed to buy, from a vendor in Queensland, a diamond ring which had been advertised on Gumtree for $4,500. The ring was said to be valued at approximately $9,000. The appellant used his computer to create an electronic payment receipt, purportedly issued by his bank, which showed that the purchase price had been transferred to the victim. The appellant forwarded this document to the victim. Believing that the receipt was genuine, the vendor couriered the ring to the appellant who received it on 14 September 2018. On 15 September 2018, the appellant sold the ring to Cash Converters for $1,500.[7] The vendor did not receive payment for the ring.
[7] ts 245 - 246; AB 126 - 127.
Count 4 was committed in similar circumstances to count 2. On 17 September 2018, the appellant agreed to purchase a diamond ring which had been advertised on Gumtree for $12,500. The ring was valued at $15,000. The appellant once again created a false electronic payment receipt purportedly issued by his bank and sent it to the vendor. Believing that it was genuine, the vendor sent the ring to the appellant. On 19 September 2018, the appellant and his partner went to Cash Converters in Malaga, where the appellant's partner sold the ring, at his request, for $2,000. The vendor did not receive payment for the ring.[8]
[8] ts 246; AB 127.
As to count 5, the appellant contacted the victim via text message, offering to purchase an iPhone 8 Plus which she had advertised on Gumtree and Facebook Marketplace for $850. On 21 November 2018, he sent the victim a false electronic payment receipt purportedly issued by his bank. Later that day, the appellant went to the victim's home and collected the mobile telephone and two spare covers for it. The victim did not receive payment for the mobile telephone.[9]
[9] ts 246; AB 127.
Save for count 5, in his dealings with the victims, the appellant used his correct name and address. He communicated with them via text messages which were discovered by the investigating police officers and included in the prosecution brief.
The appellant was interviewed on 25 November 2018 by Senior Constables Creely and Dainty,[10] and again on 1 January 2019 by First Class Constable Smith and Senior Constable Davies.[11] During these interviews, the appellant, in essence, admitted his dishonest conduct.[12]
[10] AB 343 ‑ 372.
[11] AB 373 ‑ 386.
[12] ts 232; AB 113.
We now turn to the offence the subject of the CSIO. The appellant was convicted of this offence after trial. On 13 May 2016, police officers executed a search warrant at the appellant's home. There, under the lid of a portable barbecue, the police found a clipseal bag wrapped in a kitchen dishcloth inside a camera case. The clipseal bag contained approximately 470 tablets. On later analysis, the tablets, which weighed 133 g, were found to contain MDA with a purity of approximately 12%. The sentencing judge accepted that the appellant found the tablets at a party.[13] He observed that the appellant had none of the usual indicia of commercial drug dealing and had no 'particular knowledge' of the value of the pills. His Honour said in his sentencing remarks that he was not satisfied beyond reasonable doubt that there was a 'commercial component' to the offence.[14] His Honour found that the appellant would have shared some of the pills with his friends.[15] His Honour sentenced the appellant to 18 months' imprisonment conditionally suspended for a period of 2 years.[16]
[13] 14 December 2017, ts 216 - 218; AB 161 - 163.
[14] 14 December 2017, ts 218 - 220; AB 163 - 165.
[15] 14 December 2017, ts 220; AB 165.
[16] 14 December 2017, ts 225 - 226; AB 170 - 171.
As to the offence the subject of the SIO, on 13 May 2016, the appellant was seen by members of the public and the police carrying a firearm while walking down a suburban street. Upon being seen by the police, the appellant tried to hide the firearm and ran from the attending officers. Shortly after jumping a fence onto a school oval, the appellant dropped the firearm.[17] The sentencing judge sentenced the appellant to 9 months' imprisonment, suspended for a period of 1 year.[18]
[17] AB 306.
[18] 19 December 2017, ts 2; AB 308.
The appellant's personal circumstances as outlined by the sentencing judge
The information which was provided to her Honour as to the appellant's personal circumstances comprised a three‑page pre-sentence report, the appellant's criminal history, defence counsel's sentencing submissions and some character references.[19]
[19] Pre‑sentence report, attached to email dated 10 April 2019, page 2.
According to the authors of the pre-sentence report, the appellant accepted responsibility for his offending and claimed that he committed the offences in the indictment out of financial hardship. The appellant stated that he did not anticipate getting into trouble with the law because he resided in a different State to some of his victims. The appellant also told the authors of the pre-sentence report that he had experienced no significant trauma or abuse during his childhood.[20] The report does not deal with the appellant's education and makes no reference to any impairment in the appellant's cognitive functioning, although as part of the appellant's antecedents the authors referred to the appellant as having poor problem‑solving skills, poor decision‑making and a lack of consequential thinking.[21]
[20] ts 244.
[21] Pre‑sentence report, attached to email dated 10 April 2019, page 1.
In the course of his plea in mitigation, defence counsel referred, without elaboration, to the appellant's 'cognitive deficits' and 'the cognitive deficit that [the appellant] is dealing with'.[22] None of the other materials before her Honour speak to the appellant having any cognitive impairment.
[22] ts 236.
This court has been provided with a copy of the pre‑sentence report that was written in respect of the sentence imposed upon the appellant by the District Court on 14 December 2017. It is not known whether the sentencing judge had the benefit of this report. The author of the report identified four factors relevant to the appellant's risk of reoffending, one of which was 'cognitive deficits in consequential thinking'.[23] This appears to be linked to statements made later in that pre‑sentence report that full brain development is not completed until 25 years of age, and that risk‑taking behaviour and a lack of consequential thinking is common in young men of the appellant's age.[24]
[23] Pre-sentence report, dated 6 December 2017, page 1.
[24] Pre-sentence report, dated 6 December 2017, page 2.
The sentencing remarks
As the appellant does not allege any error on the part of her Honour, it is unnecessary to canvass the sentencing remarks in detail.
In dealing with the appellant's personal circumstances, her Honour noted that:[25]
(a)At the time of sentencing the appellant was 21 years of age.
(b)He had experienced no significant trauma in his childhood.
(c)The appellant was married with a 1 year old son and his wife was expecting their second child.
(d)The appellant finished school in year 9.
(e)The appellant was in good physical health.
(f)The appellant denied having any substance abuse issues.
(g)The character referees spoke positively about the appellant, each remarking that he was very remorseful for his offending, that he had turned his life around and that he had committed the offences in the indictment at a time when he was struggling financially.
[25] ts 247 ‑ 248; AB 128 - 129.
Her Honour identified as mitigating factors the appellant's early pleas of guilty, for which he was given a 20% reduction pursuant to s 9AA of the Sentencing Act 1995 (WA), and the appellant's remorse and his youth.[26]
[26] ts 250 - 251; AB 131 - 132.
The sentencing judge identified, as an aggravating factor, the fact that the appellant had committed the offences in the indictment while subject to the CSIO and SIO.[27]
[27] ts 249 - 250; AB 130 - 131.
Her Honour referred to the appellant's prior criminal history and, most significantly, the offences for which he had been placed on the CSIO and SIO. She noted that the appellant was not entitled to the mitigation of someone who comes before the court for the first time and that the prior offending, in effect, required her to give some emphasis to the sentencing objective of personal deterrence. Her Honour also referred to a need for general deterrence, observing that offences of fraud are serious. She drew attention to the fact that 'much commerce [is] conducted over the internet these days [such] that the courts need to send a clear signal to others who might be thinking about behaving in the way that [the appellant] did'.[28]
[28] ts 251 ‑ 252; AB 132 - 133.
The ground of appeal
The ground of appeal advanced by the appellant is in these terms:
1.A miscarriage of justice occurred because evidence of the degree of the cognitive impairment was not before the learned sentencing Judge.
Particulars
a.The fact that the appellant has a cognitive impairment was raised in the sentencing.
b.After sentencing an expert report has been obtained showing the high level of cognitive impairment of the appellant.
c.If the report had been before the court at the time of sentencing it would have had a material impact on sentencing as the report is relevant in considering the appellant's conduct in relation to the offence and the degree to which the cognitive impairment is mitigatory.
d.Leave is sought to adduce the expert report in the appeal.
The question of leave to appeal was referred to the hearing of the appeal.[29]
[29] Order Buss P, 1 November 2019; AB 4.
The reports by Dr Mandy Vidovich
Dr Vidovich holds a Bachelor of Science with Honours in psychology, a Master of Clinical Neuropsychology and has completed a Doctorate in the role of cognitive rehabilitation for older adults with mild cognitive impairment. She is a fully registered psychologist with the Psychology Board of Australia with an endorsement in clinical neuropsychology as well as being a Board‑approved supervisor. She is a member of the Australian Psychological Society, the College of Clinical Neuropsychologists and other professional organisations. Since 2001 she has held various clinical positions within the Health Department, in addition to working in private practice and teaching and supervising post‑graduate psychology students. She has provided expert neuropsychological opinions to the State Administrative Tribunal and the District and Supreme Courts of Western Australia.[30] The respondent took no issue with Dr Vidovich's qualifications and experience.
[30] Dr Vidovich's report, 7 October 2019, page 13; AB 59.
In Dr Vidovich's report of 7 October 2019, she described her interview with the appellant at Acacia Prison on 24 September 2019. She reported that the appellant told her that:
(a)He was not raised by his biological parents. Instead, he was left at an early age with his paternal aunt and did not live with his natural parents and elder siblings until he was 15 years of age, and only then for a brief period of time. The appellant described his aunt as an alcoholic and an abuser of illicit substances, with the house frequently being occupied by strangers and drug users. He disclosed having been physically and verbally abused from a young age.[31]
(b)The appellant told her that he completed years 2 to 5 of primary school, but did not attend school for years 6 or 7. He attended high school in year 8 and completed the first half of year 9. The appellant said that he attended class with children who required learning assistance.[32]
(c)The appellant left home after living with his parents for a short time. At the age of 17 he met his now wife, and at the age of 19 they married.[33]
(d)With respect to the offending in the indictment, the appellant described how a third party to the fraud 'taught' him what he was to do and that he just had to 'text people'. The appellant commented how everything was set up for him. When asked by Dr Vidovich, the appellant indicated that he did not know where Queensland was and the appellant showed no understanding of matters relating to banking and accounts. The appellant told Dr Vidovich that when a seller texted him, he would ring the third party to find out what he should do next. The appellant said that he would then be told to 'cut and paste' the text messages that had been sent to him or to respond using 'Siri' to compose the information.[34]
(e)After being charged by police, the appellant said that he went to see the third party and asked him 'to take half the charges'. The appellant said he was physically assaulted by this person and their family and received threatening phone calls which included threats to his wife and child.[35]
(f)The appellant indicated to Dr Vidovich that he had never owned a computer and did not really know how to use one. He was unable to explain to her the details on a bank statement that was shown to him and he did not understand 'BSB' or 'account numbers'. When the appellant was asked how he knew what price was appropriate for the items he sold to Cash Converters, the appellant said that he was always told the minimum amount for which he could sell the item. The appellant said that upon obtaining money from Cash Converters, he split the payment with the third party.[36]
[31] Dr Vidovich's report, 7 October 2019, page 3; AB 49.
[32] Dr Vidovich's report, 7 October 2019, page 4; AB 50.
[33] Dr Vidovich's report, 7 October 2019, page 3; AB 49.
[34] Dr Vidovich's report, 7 October 2019, pages 3 - 4; AB 49 - 50.
[35] Dr Vidovich's report, 7 October 2019, page 4; AB 50.
[36] Dr Vidovich's report, 7 October 2019, page 4; AB 50.
Dr Vidovich noted the following factors relating to his cognition and psychological state:
(a)The appellant reported that he was easily distracted and unable to absorb new information without repetition.[37]
(b)The appellant reported that he was unable to read and write and was, in effect, innumerate.[38]
(c)The appellant described symptoms suggestive of post‑traumatic stress disorder. He also indicated that he had not had any engagement with mental health services and that he had always tried to avoid contact with doctors, police or individuals in authority as he had never wanted to draw attention to himself as a child.[39]
[37] Dr Vidovich's report, 7 October 2019, page 5; AB 51.
[38] Dr Vidovich's report, 7 October 2019, page 5; AB 51.
[39] Dr Vidovich's report, 7 October 2019, page 5; AB 51.
Dr Vidovich interviewed the appellant's wife, who also completed a detailed questionnaire concerning aspects of the appellant's day‑to‑day functioning. The appellant's wife explained that the appellant displayed difficulty understanding things and generally relied on her to speak on his behalf. The appellant's wife said that he needed help learning how to use domestic appliances. She said that he did not know how to transfer money to her and had no idea about setting up bank accounts and transaction receipts.[40]
[40] Dr Vidovich's report, 7 October 2019, page 6; AB 52.
Dr Vidovich said that the results of the questionnaire administered to the appellant's wife revealed that the appellant's adaptive skills were well below the mean range for his age, with his level of capability being at the first percentile or less. The questionnaire also identified the appellant as having significant difficulties in the areas of 'self‑care, academics, domestic skills, community participation, health and safety, goal directed behaviour and social interactions'. The appellant required assistance with the majority of these activities.[41]
[41] Dr Vidovich's report, 7 October 2019, page 6; AB 52.
Dr Vidovich reported that she administered to the appellant the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS‑IV). She also administered a number of other tests.[42] Within the WAIS‑IV there are a number of subtests which measure academic skills, verbal abilities and language functions, perceptual and visuo‑spatial skills, attention, working memory and processing speed, learning, memory, executive abilities and mood. Dr Vidovich observed no clinically significant discrepancies across the appellant's intellectual profile. All of his subtest performances ranged from extremely low to borderline.[43]
[42] Dr Vidovich's report, 7 October 2019, Appendix A, page 11; AB 57.
[43] Dr Vidovich's report, 7 October 2019, page 7 - 8; AB 53 - 54.
The appellant's full‑scale intelligence quotient was in the extremely low range. Dr Vidovich reported that her testing of the appellant revealed the following:[44]
(a)The appellant's single‑word reading, spelling and written mathematical abilities were significantly impaired. He performed at less than the first percentile for his age.
(b)He displayed significant limitations in his ability to reason with abstract verbal concepts and expressive vocabulary. His receptive language knowledge was extremely poor and was at approximately year 1 level.
(c)His working memory ability scored within the extremely low range.
(d)The appellant demonstrated 'significant fragility' in the retention of a nine‑item word list.
(e)In conversation with Dr Vidovich, the appellant displayed a lack of consequential thinking and forethought, together with limited cognitive sophistication in his attempts to problem solve.
[44] Dr Vidovich's report, 7 October 2019, page 7 - 8; AB 53 - 54.
In the summary and conclusion of Dr Vidovich's report, she commented that the appellant's history as relayed to her was 'notable with respect to significant childhood trauma and neglect, together with limited educational opportunities'.[45] Dr Vidovich said that the testing she carried out identified the appellant as having an intellectual disability of at least mild to moderate severity. She said:[46]
His academic skills were extremely poor, with him being essentially illiterate and innumerate. He struggled to, attend to and mentally manipulate information in mind, and such, with evidenced cognitive slowing, resulted in inefficiency in his ability to learn and retain novel information. His expressive and receptive language skills were at no more than an early primary school level, and he demonstrated significant impairment in his ability to process and integrate perceptual and visuo‑spatial material. Executive deficits were readily apparent and characterised by impaired reasoning, problem solving, concept formation and planning and organisation.
[45] Dr Vidovich's report, 7 October 2019, page 9; AB 55.
[46] Dr Vidovich's report, 7 October 2019, page 9; AB 55.
In Dr Vidovich's opinion, it seemed implausible that the appellant had the cognitive capacity to independently carry out the fraud offences for which he had been convicted. She noted that the appellant had, irrespective of his illiteracy and innumeracy, never owned a computer and did not know how to operate one. Further, he had a poor understanding of even basic concepts relating to banking and could not independently transfer money from one bank account to another without the assistance of another person. Moreover, the appellant did not have the level of language sophistication to be able to generate or convey information related to postal orders or freight delivery.[47] Dr Vidovich expressed the view that the appellant was vulnerable and at risk in a custodial setting.[48] She recommended that the appellant be referred to the National Disability Insurance Scheme as he met the criteria for funding, due to his intellectual disability.[49]
[47] Dr Vidovich's report, 7 October 2019, page 9; AB 55.
[48] Dr Vidovich's report, 7 October 2019, pages 9 - 10; AB 55 - 56.
[49] Dr Vidovich's report, 7 October 2019, page 10; AB 56.
In Dr Vidovich's addendum report dated 8 October 2019, she detailed the appellant's Full Scale Intelligence Quotient (FSIQ). She explained that an FSIQ score can range from 40 to 160. Individuals who have an intellectual disability have scores approximately two standard deviations or more below the population mean, including a margin for measurement error. In the present case, Dr Vidovich stated that the population mean is 100, with one standard deviation being 15. The appellant's FSIQ was 55, which fell within the extremely low range of scores and at a level consistent with a diagnosis of intellectual disability. The appellant's FSIQ percentile rank was 0.1, that is, 0.1% of people would score lower than him and 99.9% of people would score higher.[50]
[50] Dr Vidovich's addendum report, 8 October 2019, pages 1 - 2; AB 60 - 61.
In her report dated 11 November 2019, Dr Vidovich acknowledged that she had been provided with further material concerning the appellant, including transcripts of the appellant's evidence in the District Court trial relating to the drug offence and his two interviews with police. She answered four questions put to her by the respondent concerning the opinions she had expressed in her earlier reports. Dr Vidovich confirmed that the additional information did not change any of the views she had previously expressed.[51]
[51] Dr Vidovich's report, 11 November 2019, page 5; AB 70.
In her report of 11 November 2019, Dr Vidovich set out in more detail the appellant's degree of cognitive impairment. She explained that levels of severity of intellectual disability are defined on the basis of the person's adaptive functioning and not their FSIQ score, as it is their adaptive skills (or day‑to‑day abilities) that determine how much support the person needs. Dr Vidovich said that the appellant's intellectual disability is mild to moderate as defined in the relevant tables in the DSM-5.[52] Dr Vidovich stated that while the appellant knows the difference between right and wrong, in her opinion, he does not have the cognitive capacity to independently devise, plan, coordinate and implement the fraudulent behaviour alleged in the indictment. She added:[53]
His lack of understanding of components of the offending likely also contributed to a degree of emotional dissonance from the nature of the activities. His vulnerability to coercion and exploitation, together with his financial stress, personal circumstances, and lack of cognitive capacity to problem solve alternate ways to manage situational stressors, are further considered influencing factors with respect to his actions.
[52] Dr Vidovich's report, 11 November 2019, page 4; AB 69.
[53] Dr Vidovich's report, 11 November 2019, page 5; AB 70.
The appellant's submissions
The appellant submitted that the reports of Dr Vidovich were admissible to show facts that were in existence at the time of sentence, but were not known to the sentencing judge or were not properly appreciated.[54]
[54] Appellant's written submissions, par 14; AB 80.
The appellant argued that his intellectual disability was relevant to his sentencing in three respects. First, it is a factor in mitigation relevant to issues of moral culpability, general deterrence and the impact of imprisonment upon the appellant personally. Second, Dr Vidovich's reports indicated that the appellant was incapable of committing the offences by himself, such that he would have required the assistance and directions of a third party. Third, contrary to what was put before the sentencing judge and accepted by her Honour, that the appellant had in fact experienced an abusive and neglected childhood.[55]
[55] Appellant's written submissions, pars 17, 43 - 45; AB 80, 87.
With respect to the second matter, up until the morning of the hearing of the appeal, there was no material before this court from the appellant himself to the effect that a third party was involved in the commission of the offences and that he acted at the behest of that third party. However, on the morning of the hearing of the appeal, the appellant filed an affidavit sworn on 11 December 2019, in which he deposed that the offences were committed at the direction of an unnamed third party. The appellant also stated that the third party threatened the appellant and his family in the event that the appellant revealed the third party's involvement in the offences.[56]
[56] Appellant's affidavit, sworn 11 December 2019, pars 8 - 40, 52 - 56.
The appellant contends that, had the sentencing judge been aware of the appellant's intellectual disability, what is now said by the appellant to be his true involvement in the offences and his deprived childhood, he would have received a different sentence.[57]
[57] Appellant's written submissions, pars 23, 37, 96; AB 82, 85, 88.
The respondent's submissions
As stated earlier, the respondent accepts that there has been a miscarriage of justice in this case because the appellant's significant intellectual disability was a material sentencing factor which was unknown to her Honour at the time of sentencing. The respondent accepts that the appellant must be resentenced.[58]
[58] Respondent's written submissions, pars 15, 21 - 22; AB 95 - 97.
However, the respondent does not accept that the facts of the appellant's role in the offending were other than that found by the primary court at sentencing. In particular, the respondent does not accept that a third party was involved in the appellant's offending, and that he acted at the behest of and under the instructions of any unnamed co-offender. Further, the respondent does not accept that the circumstances of the appellant's childhood were other than as found by her Honour.[59]
[59] Respondent's written submissions, pars 29 - 32; AB 99.
At the hearing of the appeal, counsel for the appellant informed the Court that the appellant will contend, at any resentencing, that he played a less culpable role in the offending and acted at the behest of and with the assistance of a third party. It will also be contended that the appellant experienced an abusive and neglected childhood.[60] The respondent submits that the appellant should be required to establish these matters at the resentencing.[61]
[60] Appeal ts 3 - 5.
[61] Appeal ts 5 - 6.
Disposition of the ground of appeal
The relevant principles to be applied where, as in the present case, an appellant alleges a miscarriage of justice by reason of the absence of material evidence before the primary court, were recently stated by this court in Wellstead v The State of Western Australia.[62] We adopt, without repetition, that statement. It is enough to say as follows:
(a)It is not sufficient that the additional evidence demonstrates that a different sentence should have been imposed - its absence must also have given rise to a miscarriage of justice.
(b)While a miscarriage of justice may arise from the absence of material evidence before the primary court, a miscarriage of justice will not arise in all such cases because the process of identifying a miscarriage in such circumstances must be undertaken consistently with the nature of an appeal and in a manner which does not have the practical effect of obliterating the distinction between original and appellate jurisdiction.
(c)A distinction is usually drawn between matters which existed but were not known at the time of sentencing and matters which have come into existence since the time of sentence.
(d)Consistently with the role of an appellate court, evidence may be admissible on appeal to show facts relevant to the sentencing process which were in existence at the time of sentencing, but were either not known to the sentencing judge or not properly appreciated at the time. An example applicable to the present case is where a mental impairment, which existed prior to sentencing, is diagnosed, or its significance is appreciated, after sentencing has occurred. It is recognised that a miscarriage of justice may arise from the absence of evidence of that kind at the sentencing hearing.
[62] Wellstead v The State of Western Australia [2019] WASCA 130 [87] ‑ [94].
It is well‑established that mental impairment may be relevant to sentencing in a number of ways including that: it may reduce the offender's moral culpability for the offence; it may have a bearing on the kind of sentence imposed and the conditions on which it is to be served; a person suffering from such a condition may not be an appropriate vehicle for general deterrence; personal deterrence may be more difficult to achieve and may not be worth pursuing; and a sentence imposed on a person with such a condition may weigh more heavily on that person than it would on a person in otherwise normal health.[63]
[63] Krijestorac v The State of Western Australia [2010] WASCA 35 [17].
The variable and potentially conflicting effects of mental impairment as a sentencing consideration were described by Buss JA (with whom McLure P and Mazza JA agreed) in The State of Western Australia v Malone, in these terms:[64]
The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour. However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance. See, generally, Wheeler v The Queen [No 2] [2010] WASCA 105 [5] ‑ [10] (McLure P, Newnes JA agreeing); The State of Western Australia v Khasay [2014] WASCA 58 [36] - [41] (Buss JA, Pullin & Mazza JJA agreeing); and Marshall v The State of Western Australia [2015] WASCA 156 [90] - [95] (Buss JA).
[64] The State of Western Australia v Malone [2015] WASCA 188 [74].
In the present case, her Honour may have been aware in general terms that the appellant may suffer from a cognitive deficit. However, that description falls far short of properly describing the nature of the appellant's mental impairment. As Dr Vidovich's reports show, and as the respondent accepts, the appellant has a significant intellectual disability which, to our mind, reduces his moral culpability for his offending, diminishes the need for general deterrence, places him at risk in a prison environment and renders the service of an immediate term of imprisonment more onerous than for an offender without a significant intellectual disability. Thus, had the appellant's significant intellectual disability been known to the sentencing judge, it should and, in our view, would have resulted in a different sentence being imposed. A miscarriage of justice arose from the absence of evidence as to the appellant's intellectual disability.
For these reasons, we were satisfied that the respondent's concessions, namely, that the ground of appeal has been made out, that the appeal should be allowed and the appellant resentenced, were correctly made and should be accepted.
Should this court resentence the appellant
Section 31(5) of the Criminal Appeals Act 2004 (WA) provides that, if this court allows an appeal against sentence, it must set aside the sentence and either impose a new sentence, or send the charge back to the court that imposed the sentence to be dealt with further.
Where this court decides to resentence an offender, it does so subject to s 41 of the Criminal Appeals Act which, inter alia, allows this court to take into account any matter relevant to the sentence which has occurred between when the lower court dealt with the person and when the appeal is heard.[65] However, even once express or implied error is established, then, apart from exceptional cases, the question of whether some different sentence ought to have been imposed is answered by consideration of the material that was before the sentencing court and any relevant evidence of post‑sentence conduct.[66] Accordingly, as to the facts and circumstances of the offence, when this court resentences an offender, it generally does so on the facts and circumstances of the offending found in the primary court.
[65] See s 41(4)(a) of the Criminal Appeals Act.
[66] See Wellstead v The State of Western Australia [94] and Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10].
A question arose in this appeal as to whether the appellant should be resentenced by this court or by the District Court. This question arose, having regard to the appellant's claim, contrary to the position taken before her Honour, that he was incapable of independently committing the offences in the indictment, that he did so at the behest of, and under the instructions of, a third party, and that his childhood was marked by abuse and neglect. The respondent does not accept these contentions and wishes to put the appellant to proof of them. Thus, it is necessary that there be a trial of issues in respect of these matters. The respondent contends that the District Court could resentence the appellant with this court providing 'some guidance to the District Court' as to whether he ought to be able to run a case contrary to that at the first sentencing hearing.[67]
[67] Appeal ts 6.
Generally, when this court discerns error in the sentencing process it has the material necessary to resentence the appellant and it will be efficient for it to do so. Consequently, the power to remit a matter for resentencing to the court that imposed the sentence the subject of the appeal should be used only when the circumstances justify doing so. However, to our mind, the present case is exceptional. It was only after the appellant was sentenced by her Honour that his significant intellectual disability came to light. Based on the opinions of Dr Vidovich, the appellant was incapable of committing the offences on the indictment by himself. The appellant now asserts, on oath, that a third party was involved and that he participated in the offences at this person's behest. Moreover, the appellant kept the third party's involvement from the police because of threats said to have been made by that person towards the appellant and his family. The appellant's claims have not been tested and have been challenged by the respondent.
In establishing the facts now alleged by the appellant and, indeed, his claim of being abused and neglected in his childhood, the appellant faces the obstacle that those claims are inconsistent with the case he put in the court below. Whether, on that account, he should be precluded from advancing those claims at his resentencing is a matter for the resentencing judge. Having regard to the factual controversies that must be resolved by a trial of issues, we formed the view that the best course of action was to remit the appellant's resentencing to the District Court. We see no reason why Glancy DCJ should not resentence the appellant, but, of course, that is a matter for the District Court to determine.
Bail
The appellant sought bail pending his resentencing.[68]
[68] Appeal ts 3.
The respondent opposed bail on the basis that the appellant had been convicted of serious offences which breached the CSIO and SIO, and as the likely outcome of the appellant's resentencing was an immediate term of imprisonment, albeit shorter than the one imposed by the primary judge.[69]
[69] Respondent's written submissions, pars 25 - 28; AB 98 - 99; appeal ts 8 - 9.
In our opinion, a grant of bail pending the appellant's resentencing was appropriate for the following reasons. First, the appellant's appeal against sentence was made out and he must now be resentenced. Second, he has already served 6 months in custody. Third, he suffers from a significant intellectual disability which, according to Dr Vidovich, makes him vulnerable in the prison system to assaults by other prisoners. Fourth, there is likely to be some delay before the appellant can be resentenced. Fifth, the respondent does not submit that, if the appellant was granted bail, he represents either a flight risk or that he poses a risk of reoffending. Sixth, there is some prospect, although no guarantee, that upon a resentence, the appellant will be sentenced to a non‑immediate custodial sentence.
As the court explained at the time of pronouncing the orders set out in [9] of these reasons,[70] the fact that this court has exercised its discretion to grant bail should not be taken to mean that this court is of the opinion that, upon a resentencing, the appellant should not be sentenced to immediate imprisonment. We wish to make it clear that the sentencing discretion is to be exercised afresh, according to the facts and circumstances to be determined by the District Court, or in accordance with the facts as may be agreed.
[70] Appeal ts 16.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza11 MARCH 2020
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