Banwait v Eaton
[2020] WASC 15
•24 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BANWAIT -v- EATON [2020] WASC 15
CORAM: SMITH J
HEARD: 17 JANUARY 2020
DELIVERED : 24 JANUARY 2020
FILE NO/S: SJA 1158 of 2019
BETWEEN: ANAND DEV SINGH BANWAIT
Appellant
AND
ELIZABETH EATON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M J MILLINGTON
File Number : PE 38331 of 2019
Catchwords:
Criminal law - Appeal against sentence - One count of criminal damage - Suspended term of imprisonment - Whether miscarriage of justice because appellant's mental illness not before the sentencing magistrate - Whether the sentence manifestly excessive as to type of sentence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 444(1)(b)
Sentencing Act 1995 (WA), s 9AA, s 39(2)
Result:
Extension of time within which to appeal granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 allowed
Appeal against sentence allowed
Sentence is set aside and remitted to START Court for resentencing
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bakdadi v O’Neill [2003] WASCA 267
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)
Carter v Platt (Unreported, WASC, Library No 9060, 18 September 1991)
Corpus v Roseveare [2015] WASC 165
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Durward v Belton [2012] WASC 479
ENR v The State of Western Australia [2018] WASCA 9
Hull v The State of Western Australia [2005] WASCA 194
Joyce v Gee [2010] WASC 76
Krencej v The State of Western Australia [2019] WASCA 82
Krijestorac v The State of Western Australia [2010] WASCA 35
Mason v The State of Western Australia [2018] WASCA 43
Merai v The State of Western Australia [2018] WASCA 54
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Zamagias [2002] NSWCCA 17
Robertson v The State of Western Australia [2009] WASCA 83
Samuel v The State of Western Australia [2004] WASCA 154
SGT v The State of Western Australia [2017] WASCA 136
Suleiman v The State of Western Australia [2017] WASCA 26
The State of Western Australia v Malone [2015] WASCA 188
The State of Western Australia v Tittums [2018] WASCA 23
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Vucemillo v The State of Western Australia [2017] WASCA 37
Ward v The State of Western Australia [2011] WASCA 172
Wimbridge v The State of Western Australia [2009] WASCA 196
SMITH J:
The appeal, the grounds of appeal and the result
This is an appeal from the sentence imposed on the appellant in the Perth Magistrates Court on 30 August 2019 for an offence of criminal damage pursuant to s 444(1)(b) of the Criminal Code (WA). The appellant was sentenced to 7 months' imprisonment, suspended for 8 months.
The appellant appeals on two grounds, the first alleging a miscarriage of justice because details of the appellant's mental illness was not before the magistrate, and second alleging error by the imposition of a sentence that is manifestly excessive as to the type of sentence imposed, having regard to the circumstances of the offence, the personal circumstances of the appellant, his plea of guilty and sentencing standards.
Leave of the court is required for each ground of appeal.[1] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(1)
[2] Criminal Appeals Act 2004 (WA) s 9(2).
The appellant requires an extension of time within which to appeal and also seeks leave to adduce additional evidence.
For the reasons that follow, I am of the opinion that, an extension of time should be granted, leave should be granted to adduce additional evidence, leave should be refused for ground 1 and granted for ground 2, the appeal allowed, and the sentence set aside.
Background ‑ the offence, the plea and the magistrate's sentencing remarks
The appellant was charged that on 21 June 2019, he wilfully and unlawfully damaged a sliding door being the property of Friendlies Chemist Leederville, causing damage to the value of $626.
The appellant failed to appear on the charge on the first date for appearance on 28 August 2019, and appeared in custody before the Perth Magistrates Court on 30 August 2019, whereupon he entered a plea of guilty to the charge. Immediately after entering his plea, the appellant was sentenced to a term of 7 months' imprisonment, suspended for 8 months.
The appellant was unrepresented when he entered his plea.
The acts constituting the offence were captured by CCTV footage. The facts of the offence stated by the prosecutor to the court were very brief. These were, at 5.15 am on 21 June 2019, the appellant was sitting on the ground outside the Friendlies Chemist. He stood up and round kicked the glass door of the chemist twice with his right foot causing it to shatter but remain intact. The appellant was interviewed (by the police) but gave no reasonable explanation for his actions.
After the facts were read to the court, the magistrate asked the appellant, 'what's going on?' and pointed out to him that this was his fourth conviction for criminal damage this year. In response, the appellant said to the magistrate, 'I'm sorry, sir… I'm just having a rough time… I'm not that happy. I am very depressed and stuff… But I swear to your Honour I will stop this… habit of doing these things'.[3] The magistrate then said to the appellant, 'You might be having a rough time, Mr Banwait, but these are people's businesses… Was there any reason to kick that?' In response, the appellant said 'no'. The magistrate then asked the appellant about the other offences that had been committed this year, (was that a similar situation?) and the appellant said, 'Yes, I know, it's just depression, sir. It's just a lot of depression. I swear I will never ‑ I won't do ‑ do any more property damage'.
[3] ts 2 ‑ 3.
In answer to further questions by the magistrate, the appellant informed the magistrate that he was not working and that he was receiving money from Centrelink.
In sentencing the appellant the magistrate stated that he would apply a discount to the term of imprisonment of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA) for the early guilty plea. His Honour then stated his reasons for imposing the term of suspended imprisonment and the matters he had taken into account were as follows:
(a)a term of imprisonment is not to be imposed by the court unless the offending is so serious that it warrants it or the protection of the community requires it;[4]
(b)the appellant had four convictions in 2019 for criminal damage, another conviction for criminal damage in 2017 and one in 2013. He also had a history of violent ‑ type offending;[5]
(c)general deterrence (demands) and more importantly specific deterrence (is required) to stop the appellant from (committing such offences);[6]
(d)the appellant must be given some sympathy if, 'it's depression', but the appellant cannot (be allowed to continue to) damage other people's property who work hard for their businesses as such damage costs them and their insurers;[7]
(e)deterrence (protection of the community) requires that a term of imprisonment is appropriate;[8] and
(f)taking into account that 3 years' imprisonment is the maximum penalty in relation to the offence, and by regard to the appellant's plea of guilty, which is the appellant's major mitigating factor, a period of 7 months' imprisonment is to be imposed to be suspended for 8 months.[9]
[4] ts 4.
[5] ts 4.
[6] ts 4.
[7] ts 4.
[8] ts 5 see also ts 4.
[9] ts 4 and ts 6.
Should an extension of time to appeal be granted?
An appeal against sentence in the Magistrates Court cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[10]
[10] Criminal Appeals Act 2004 (WA) s 10(3).
The appeal notice was lodged on 5 December 2019. The last date for appealing was 27 September 2019. Therefore, the appeal is 10 weeks out of time.
Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[11]
[11] Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA, Owen & Miller JA agreeing).
Exceptional circumstances are not closed. A compelling explanation for the delay will generally constitute exceptional circumstances.[12]
[12] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA).
Merely showing that there should be a ground which would have succeeded in a regularly instituted appeal is not sufficient to demonstrate a miscarriage of justice. Something more has to be shown, otherwise there would be no practical consequence ever flowing from a failure to appeal within time.[13]
[13] Wimbridge v The State of Western Australia [2009] WASCA 196 [21] (Wheeler JA); Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] ‑ [114].
The respondent opposes the application for an extension of time on grounds that the appellant did not apply for legal aid until 25 November 2019, and no explanation has been provided for the delay. However, the respondent concedes that whether an extension of time should be granted should turn upon whether there will be a miscarriage of justice if an extension of time is not granted.
For the reasons that follow, I am of the opinion that the merits of ground 2 of the appeal are such that there would be a miscarriage of justice if an extension of time is not granted, if the appeal was not heard on its merits and the sentence was allowed to stand.
Suspended sentences of imprisonment ‑ general principles
Before a court can impose a sentence of imprisonment that is suspended, the court must firstly come to the view that an immediate term of imprisonment should be imposed. A sentence of immediate imprisonment can only be imposed when there is no other appropriate sentencing disposition.
Section 39(2) of the Sentencing Act provides that a court sentencing an offender may either impose no sentence and order the release of the offender or may impose any of eight forms of sentence, namely, a conditional release order, a fine, a suspended fine, a community‑based order, an intensive supervision order, a sentence of suspended imprisonment, a sentence of conditional suspended imprisonment, or a sentence of imprisonment (in that order).[14]
[14] Sentencing Act 1995 (WA) s 39(2).
By s 39(3) of the Sentencing Act, a court must not impose a term of imprisonment,[15] unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the other options listed before that option. Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In other words, a court is not permitted to impose a sentence of suspended imprisonment unless that is the only appropriate sentencing option.[16]
[15] See Sentencing Act 1995 (WA) s 39(2)(h).
[16] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; DKN v The State of Western Australia [2018] WASCA 87 [35].
The power to suspend a term of imprisonment is provided for in s 76 of the Sentencing Act. Section 76(1) and (2) of the Sentencing Act provides:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
It can be inferred from s 76 of the Sentencing Act that suspended imprisonment terms are only to be available where:[17]
(a)the court has concluded that a sentence to a term of imprisonment is warranted;
(b)the pre‑conditions in s 6(4) are met; and
(c)the term imposed is not more than 60 months (5 years).
[17] Mason v The State of Western Australia [2018] WASCA 43 [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] ‑ [79].
In an appeal that alleges that the imposition of a suspended term of imprisonment was manifestly excessive because the wrong type of sentence was imposed, the question is whether it was open to the sentencing judge to form the view that the only appropriate disposition was the imposition of a term of imprisonment. In other words, was it open to the judge to find that a less serious sentencing option was not appropriate?[18]
[18] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; ENR v The State of Western Australia [2018] WASCA 9 [12].
When arriving at a decision regarding the appropriate sentencing option, a judge must give proper consideration to all sentencing options in s 39 of the Sentencing Act.[19] In Hull v The State of Western Australia, Roberts-Smith JA explained:[20]
[19] Samuel v The State of Western Australia [2004] WASCA 154 [34] (Roberts-Smith J, Malcolm CJ & Murray J agreeing).
[20] Hull v The State of Western Australia [2005] WASCA 194 [22] ‑ [28].
The imposition of a suspended sentence is not restricted to exceptional circumstances. It is imposed where the offence is deserving of imprisonment but the prevailing circumstances justify the imposition of a lesser sentence. Section 76(2) of the Sentencing Act specifically states that:
'Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.'
…
In R v Zamagias [2002] NSWCCA 17, Howie J said at [25] (Hodgson JA and Levine J agreeing):
'The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment.'
Mullighan J said in Meeuwsen v Police [2003] SASC 306 at [38]:
'The correct approach in arriving at a just sentence is to go through the process of eliminating all other sentencing options before considering imprisonment: R v O'Keefe [1969] 2 QB 29 and Wood v Samuels (1974) 8 SASR 465.'
In Dinsdale v The Queen (2000) 202 CLR 321, the High Court discussed the operation of the provisions of the Sentencing Act outlined above. Gleeson CJ and Hayne J said at [11]:
'… a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act.'
At [15]:
'No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment.'
Kirby J (Gaudron and Gummow JJ agreeing) said at [77]:
'In Western Australia, the 'starting point' for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of ss 39(2) and 76 of the Act. From s 39(2)(f) can be deduced the purpose of Parliament to afford 'suspended imprisonment' as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of a term of imprisonment to be immediately served. It is to be read with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort.' (Citations omitted)
However, a judge is not required to expressly refer to a sentencing option if that option is not realistically open.[21] If in the circumstances of a case, two or more options may be realistically open, a judge should necessarily make reference to why the less severe option (or options) is not appropriate.[22]
[21] Samuel v The State of Western Australia [2004] WASCA 154 [31] ‑ [34] (Roberts-Smith J, Malcolm CJ & Murray J agreeing) citing Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998).
[22] Samuel v The State of Western Australia [2004] WASCA 154 [31] (Roberts-Smith J, Malcolm CJ & Murray J agreeing).
In Veen v The Queen (No 2), the High Court held that while protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender.[23]
[23] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ).
Application to adduce further evidence
Principles
Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing decision‑maker, a different sentence should have been imposed.[24]
[24] Suleiman v The State of Western Australia [2017] WASCA 26 [53] (Buss P, Mazza & Mitchell JA agreeing).
When an appeal is against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.[25]
The additional evidence
[25] Criminal Appeals Act 2004 (WA) s 14(5).
The appellant seeks to adduce additional evidence in the appeal that he suffers from schizophrenia. This condition was not raised by the appellant at the time he pleaded guilty and was sentenced. It is submitted on behalf of the appellant that his mental illness is a significant mitigating factor the magistrate was not aware of at the time of sentencing.
The additional evidence consists of a report of a consultant psychiatrist, Dr Rachael Griffiths dated 26 September 2019. The report was prepared for the Magistrates Court for an appearance by the appellant on 2 October 2019 after the appellant was referred to the Frankland Centre on 2 September 2019, pursuant to a Hospital Order.[26]
[26] Affidavit of Andrew James Robson, sworn 13 December 2019; Annexure A, pages 4 ‑ 7.
Dr Griffiths' opinion is that the appellant has a major mental illness, schizophrenia, and that his treatment is significantly complicated by his ongoing methamphetamine abuse, lack of insight into his drug use, lack of insight into the symptoms of his illness, lack of meaningful activities, lack of accommodation, and lack of social support.
In her report, Dr Griffiths provided the following information about the appellant's past psychiatric history:
(a)he has a long history of paranoid schizophrenia, the treatment of which has been significantly complicated by his chronic methamphetamine abuse;
(b)he has had 25 admissions to public mental health hospitals in Western Australia since 2010 and multiple private admissions to a private hospital;
(c)his last public hospital admission was for 40 days after an exacerbation of the symptoms of schizophrenia due to non‑compliance with medication as well as methamphetamine and alcohol abuse;
(d)he was (at the time of the report) not active with public community mental health services due to non-attendance;
(e)his prescribed monthly antipsychotic injection was two weeks overdue at the time of his (last) court appearance;[27]
(f)when assessed by the Mental Health Co-response Team on 23 September 2019 (after he was causing a disturbance at Glendalough shops) he stated he would go to Royal Perth Hospital for his antipsychotic injection prior to court on 25 September 2019 but failed to do so;
(g)he doctor shops in order to obtain a diagnosis of ADHD, and a prescription for dexamphetamines; and
(h)his discharge summaries indicate that methamphetamine abuse is usually the cause of his psychotic relapses.
[27] It is not clear from Dr Griffiths' report as to when the last court appearance that she refers to occurred.
Dr Griffiths also stated in her report that:
(a)on admission, the appellant was agitated and was seen responding to unseen stimuli, requiring sedating medications;
(b)the appellant was reviewed the following day and presented as pleasant and cooperative. His speech was normal and he was not thought disordered. The appellant denied he was experiencing psychotic symptoms (although nursing staff noted that he appeared to be hearing voices on the ward). He admitted that he had used drugs in the days before his court appearance, however he denied acting strangely in court, or that his drug use had cause any problems with his life;
(c)the appellant did not wish to continue with his paliperidone depot (injections) as he said it made him 'blind'. He agreed to take an alternative monthly antipsychotic injection, aripiprazole, which he received voluntarily;
(d)the appellant was considered to have experienced increased psychotic symptoms in the context of illicit drug use, he had settled somewhat overnight in hospital and presented well on psychiatric assessment. It is acknowledged that he probably was not actually as well as he presented on one assessment. Unfortunately he had to be discharged to prison to make way for an incoming Hospital Order. He was the least unwell patient at Frankland Centre. It was felt that he could continue to be managed in prison;
(e)the appellant has a history of engaging in violent and dangerous behaviour when unwell and/or using drugs and alcohol that place him and others at risk of harm; and
(f)the appellant's diagnosis was schizophrenia and polysubstance use disorder (methamphetamines, alcohol).
Among other recommendations made to the Magistrates Court, in her report, Dr Griffiths stated that the appellant requires extensive psychosocial intervention and that should he be accepted, the Magistrates Court START Court (Mental Health Court Diversion and Support Program) could be very helpful with assisting him to obtain accommodation, engage with mental health services, engage in meaningful activities, and increase his insight into his methamphetamine abuse.
Relevance of mental impairment to sentencing
If an offender is shown to be suffering from a mental disorder, abnormality or impairment of mental function at the time of the offence or sentencing (whether or not the condition can be labelled as serious mental illness), the impaired mental functioning may reduce the offender's moral culpability if it had the effect, among other matters, of:[28]
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
[28] Krijestorac v The State of Western Australia [2010] WASCA 35 [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [26].
The general principles explaining the relevance of mental impairment to the sentencing process were summarised in Mason v The State of Western Australia.[29] These are:
(a)If an offender contends that their moral culpability is lessened by mental impairment, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence.[30]
(b)Mental impairment that is not causative of the offence may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.[31]
(c)Mental illness is a matter that may be relevant in the exercise of the sentencing discretion, but it is not the case that it will always result in a lesser sentence. For example, the existence of a causal connection between the mental impairment 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.[32]
(d)The existence of a mental impairment is but one factor that must be balanced with all other factors to produce an appropriate sentence. 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.[33]
[29] Mason v The State of Western Australia [2018] WASCA 43 [57] ‑ [63].
[30] Mason v The State of Western Australia [2018] WASCA 43 [60].
[31] Mason v The State of Western Australia [2018] WASCA 43 [61].
[32] The State of Western Australia v Malone [2015] WASCA 188 [74].
[33] The State of Western Australia v Malone [2015] WASCA 188 [74].
In Suleiman v The State of Western Australia, Buss P relevantly observed in respect of the onus on an appellant who seeks to rely upon mental illness or psychological difficulties as a mitigating factor which reduces his or her moral blameworthiness or culpability:[34]
The effect of mental illness or psychological difficulties (falling short of insanity) 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. See R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness 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 mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).
In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:
'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].'
See also R vWright (1997) 93 A Crim R 48, 50 ‑ 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).
In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993 14, adopted and emphasised by Gleeson CJ in Engert (71).
[34] Suleiman v The State of Western Australia [2017] WASCA 26 [60] ‑ [63] (Mazza & Mitchell JA agreeing).
In Vucemillo v The State of Western Australia, in a joint judgment of the Court of Appeal their Honours pointed out that it is established that even where there is no causal connection between a mental impairment on the commission of an offence, whether an offender has a mental disorder, abnormality or impairment of mental function either at the time of offending or at sentence, may be an important consideration in the sentencing process.[35] After considering the general principles that apply to the relevance of mental impairment in the exercise of the sentencing discretion explained in a number of cases (which are set out in [38] of these reasons) their Honours said:[36]
Those principles do not apply only to offenders with a serious psychiatric illness. They apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
It is clear, however, that while a mental impairment will ordinarily be relevant to the sentencing of an offender, it is not the case that it will always result in a lesser sentence. The existence of a mental impairment is simply one factor which must be balanced with other factors to produce a just sentence. The part that it plays in the sentencing of an offender must always depend upon the particular facts and circumstances of the case. In some cases, it may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. Thus, for example, the existence of a causal connection between the mental impairment and the offence might reduce the importance of general deterrence but increase the importance of particular deterrence or of the need to protect the public: R v Engert (1995) 84 A Crim R 67, 71; Wheeler v The Queen [7]. There may also be cases where there is no causal connection between the mental impairment and the commission of the offence, but the mental impairment may be important to considerations such as rehabilitation or the need for treatment outside the prison system: R v Engert. It may also be relevant where as a consequence of the mental impairment imprisonment would weigh much more heavily on the offender than on an ordinary prisoner: Thompson [77]; Tsiaris, 400.
[35] Vucemillo v The State of Western Australia [2017] WASCA 37.
[36] Vucemillo v The State of Western Australia [2017] WASCA 37 [37] ‑ [38].
Should the additional evidence (medical evidence) be admitted in the appeal?
For reasons that follow, I am of the opinion that the application to admit the additional evidence, that is expert medical opinion evidence, should be allowed.
However, I am of the view that the expert evidence should not be admitted in determination of ground 1 of the appeal. This is because, I am of the opinion that even if the additional evidence had been before the sentencing magistrate I am not satisfied that details of the appellant's mental illness by itself would have resulted in a different sentence. However, I am of the opinion that the expert evidence should be admitted by the court in respect of ground 2 as the sentence imposed by the magistrate was manifestly excessive as to the type of sentence imposed.
The appellant's criminal history and relevant personal circumstances
At the time the offences occurred the appellant was 45 years old.
The appellant has a lengthy criminal history. Except for one appearance before the District Court in 2010 prior to 30 August 2019, for each offence, the appellant had been sentenced to various non‑custodial penalties.
Until 8 May 2000 (when he was 25 years old) the appellant only had been convicted of traffic offences. In 2003, 2006 and 2007, the appellant was convicted of two offences of a breach of violence restraining order in each of those years, respectively.
In January 2007, the appellant was convicted in the Magistrates Court of one offence of unlawful damage and in August 2007, he was sentenced by the District Court of one count of threat to kill for which he was sentenced to a community-based order for 12 months.
In 2008, the appellant was fined by the Magistrates Court for five breaches of community-based orders (imposed by the Magistrates Court).
On 6 August 2009, the appellant was convicted by the District Court of one count of aggravated burglary and commit an offence in a dwelling in respect of which an intensive supervision order for 15 months was imposed. On 21 December 2010, he was sentenced by the District Court for breach of an intensive supervision order for which he received a fine and 7 months' imprisonment suspended for 8 months from 21 December 2010.
The appellant was successful in not committing any further offences for the period of time the suspended imprisonment sentence was in force.
In August 2011, the appellant was convicted of one offence of breach of bail (the offence occurred on 9 February 2011) in the Magistrates Court.
The appellant appears to have a break in offending for almost two years (between 9 February 2011 and the date of his next offence which occurred on 3 December 2012).
On 5 February 2013, the appellant was convicted in the Magistrates Court of one offence of damaging property, for the offence that occurred on 3 December 2012.
The appellant then had a gap in offending for approximately four and a half years.
On 20 September 2017, the appellant was convicted in the Magistrates Court of one count of disorderly behaviour in public, and one count of damaging property.
The appellant then had a break in offending for approximately two years.
On 26 April 2019, the appellant was convicted of two counts of criminal damage or destruction of property and one count of damaging property for which he received fines on each count. The first of these offences occurred on 22 March 2019, and the other offences occurred on 25 April 2019. These were the three offences that the sentencing magistrate referred to when sentencing the appellant on 30 August 2019.[37]
[37] ts 2.
What the appellant's criminal history shows, together with his medical history set out in Dr Griffiths' report, is that the appellant has had lengthy breaks in offending since he was diagnosed with schizophrenia. Although the appellant has had 25 admissions to public mental health hospitals and multiple private admissions to a hospital since 2010, he had a break in offending for four and a half years between 2013 and 2017, and a further break of almost two years between 2017 and early 2019.
Disposition - ground 1 - does this ground have any prospect of success?
The mitigating factors for the appellant could only be said to be his plea of guilty, and if available, his mental illness.
The sentencing magistrate cannot be criticised for not considering the appellant's mental illness, as he did not have any information or material before him to suggest that the appellant suffered from any form of mental illness.
In ground 1 of the appeal, it is argued on behalf of the appellant that it may reasonably be inferred from the matters recorded in, and in the opinion expressed by Dr Griffiths in her report, that the appellant's psychiatric illness contributed to the offence, or at a minimum, provides a relevant background context in which to consider the offence the subject of the appeal and also the appellant's prior record.
However, the evidence before this court does not establish a causal link between the offence of criminal damage committed by the appellant on 21 June 2019 and his mental illness. Following the receipt of the report from Dr Griffiths, the appellant's counsel sent an email to Dr Griffiths on 10 December 2019 to seek her opinion about whether there was any causal connection between the appellant's psychiatric illness and the criminal damage offence (the subject of the appeal). Dr Griffiths responded by email on the following day that she did not specifically assess the appellant for this issue.[38]
[38] Affidavit of Andrew James Robson, sworn 13 December 2019 [4] ‑ [5].
It cannot be inferred from the report of Dr Griffiths that the appellant's psychiatric illness contributed to the offence. Not only does Dr Griffiths not express an opinion in respect of this matter, there is no information in her report or any other information before the court as to what caused the appellant to round kick the chemist window twice on 21 June 2019. Further, Dr Griffiths in her report does not state when the appellant's last public or private hospital admission occurred for his mental illness. Nor does she state when he ceased to be active with public community mental health services, or had received his last depot injection (of antipsychotic medication).
The mitigating effect of mental illness is to be counterbalanced against the need to protect the community from the risk of future offending, particularly where the offender has a history of offending and voluntarily consuming drugs.[39]
[39] Mason v The State of Western Australia [2018] WASCA 43 [64].
If a causal connection could have been established between the appellant's mental illness and the offence, the fact of his mental illness may have been regarded as a significant factor to be taken into account when considering deterrence.
If the report of Dr Griffiths had been before the sentencing magistrate the mitigating value of Dr Griffiths' opinion is not likely to have been regarded as sufficient to offset the need to protect the community in light of the appellant's chronic mental health condition, his lack of insight, and his non-compliance with his medication. The sentencing magistrate may have regarded the significance of the appellant's drug use on his mental illness, his lack of insight and denial that it causes any problems with his life, coupled with the assessment by Dr Griffiths that the appellant's 'history of engaging in violent and dangerous behaviour when unwell and/or using drugs and alcohol that place him and others at risk of harm'[40] makes the protection of the public a highly relevant concern in the sentencing exercise. The protection of the public was the significant factor that led the sentencing magistrate to impose on the appellant a term of suspended imprisonment.
[40] Affidavit of Andrew James Robson, sworn 13 December 2019; Annexure A, pages 4 ‑ 7.
If Dr Griffiths' report had been before the sentencing magistrate, it would also have been open to the magistrate to find that the appellant's mental illness together with his polysubstance use disorder (consumption of methamphetamines and alcohol) makes reoffending more likely.
In these circumstances, I am not satisfied that the ground of appeal has a rational and logical prospect of succeeding, or a real prospect of success.
For these reasons, I am of the opinion that leave to appeal on this ground should not be granted.
Ground 2 - manifest excess
Principles
This ground of appeal asserts implied rather than express error. The principles of implied error are well‑established.
Implied error arises when the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[41]
[41] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of: [42]
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.
[42] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
When sentencing an offender:
(a)s 6(1) of the Sentencing Act requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of an offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
Is error established ‑ was the sentence manifestly excessive?
The maximum penalty for the offence of which the appellant was convicted under s 444(1)(b) of the Criminal Code is 14 years' imprisonment.[43] On summary conviction, the appellant was liable to imprisonment for 3 years and a fine of $36,000.
[43] Criminal Code (WA) s 444(1)(b).
There is no tariff for offending against s 444(b) of the Criminal Code because of the great variation in the facts and circumstances of these offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. The limits of the guidance afforded by any comparable cases are flexible. Comparable cases can provide only general guidance.[44]
[44] Ward v The State of Western Australia [2011] WASCA 172 [84] (Buss JA).
This is because the circumstances in which such an offence can be committed can vary markedly. The factors that may be relevant in assessing the seriousness of such an offence include the degree of deliberation involved and the extent and the value of the damage caused.[45]
[45] Corpus v Roseveare [2015] WASC 165 [50] (Hall J).
The appellant has referred in his outline of submissions to four single judge decisions which are said to constitute the sentencing standard for criminal damage.[46] However in this State, comparable cases, in the context of deciding whether a particular sentence is manifestly excessive or inadequate, comprise only relevant decisions of the Court of Appeal and its predecessor the Court of Criminal Appeal.[47] Moreover, when the court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of sentences that could be imposed on a proper exercise of the sentencing discretion.[48]
[46] Corpus v Roseveare [2015] WASC 165; Bakdadi v O’Neill [2003] WASCA 267; Joyce v Gee [2010] WASC 76 and Carter v Platt (Unreported, WASC, Murray J, Library No 9060, 18 September 1991).
[47] The State of Western Australia v Tittums [2018] WASCA 23 [55].
[48] Merai v The State of Western Australia [2018] WASCA 54 [56].
Also the sentences imposed for criminal damage on appeal in the first three cases referred to by the appellant: Corpus v Roseveare (4 months);[49] Bakdadi v O'Neill (4 months);[50] and Joyce v Gee (2 months),[51] formed part of a larger sentencing exercise, such that it is artificial to look at the individual sentence in isolation.[52] The fourth decision referred to by the appellant, Carter v Platt[53] (18 months' probation) also could not be a suitable comparator. Not only is the case some 28 years old, the offence in that case was under the since repealed s 453 of the Criminal Code which attracted a maximum penalty of 2 years' imprisonment (or 3 years if committed by night, as was in that case). The appellant in that matter was a 19-year-old with no adult record, and had only on one previous occasion, as a 16‑year‑old, been before the court and convicted of any offence.
[49] Corpus v Roseveare [2015] WASC 165.
[50] Bakdadi v O’Neill [2003] WASCA 267.
[51] Joyce v Gee [2010] WASC 76.
[52] SGT v The State of Western Australia [2017] WASCA 136 [38].
[53] Carter v Platt (Unreported, WASC, Library No 9060, 18 September 1991) (Murray J).
Although the appellant has a lengthy record, relevantly, s 7(2)(b) and (c) of the Sentencing Act provides that an offence is not aggravated by the fact that the offender has a criminal record or a previous sentence has not achieved the purpose for which it was imposed. A lengthy criminal record results in no mitigation for good character. Also, previous instances of the same kind of offending do not aggravate an offence and cannot justify the imposition of a sentence greater than that which was otherwise appropriate.[54]
The seriousness of the offending
[54] Durward v Belton [2012] WASC 479 [29] (Pritchard J).
The appellant is a mature man. Consequently, he is not entitled to leniency on account of his age.
When protection of the community is an important consideration in the sentencing process, it does not necessarily follow that the only appropriate sentencing disposition is a term of imprisonment or a term of suspended imprisonment. Although the purpose of specific deterrence may require a sentence of punishment for the purpose of the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender. In some cases a suspended sentence may be a particularly effective and appropriate sentence for such a purpose.[55] However, where there are no standards of sentencing customarily imposed for a type of offence, a suspended term of imprisonment should not be imposed unless it is proportionate to the degree of criminality involved in the offence. That is, the place which the criminal conduct occupies on the scale of seriousness.
[55] R v Zamagias [2002] NSWCCA 17 [32] (Howie J, Hodgson JA & Levine J agreeing).
While substantial weight is required to be given to the need to protect the public against the risk of further offending by the offender and the acuteness of that risk is reinforced by the appellant's past and recent criminal history of prior similar offences, the place which the conduct of the appellant's offence occupies on the scale of seriousness of offences, namely criminal damage is relatively low. In this present case, it appears from the facts of the offence read by the prosecutor to the Magistrates Court, that whilst the offence cannot be characterised as trivial:
(a)the offence was not planned or premeditated;
(b)the offence was not carried out with the intention of committing any other offence such as trespass or burglary;
(c)whilst the glass door of the chemist was shattered, the glass did not fall, and there is no suggestion that anyone was endangered by the appellant's conduct; and
(d)the cost of repair of the window was not substantial.
Disposition - ground 2 of the appeal - the sentence is manifestly excessive as to type
The appellant readily admitted to the offence at the first opportunity, and was remorseful. The appellant's personal circumstances are that he suffers from a longstanding mental illness. He also has a history of consuming methamphetamines and abusing alcohol which may make reoffending more likely. Consequently, his mental illness cannot be given much weight as a personal mitigating factor. However, Dr Griffiths' report indicates that the appellant may not be beyond rehabilitation if he receives active psychosocial intervention, which intervention would not be met by a non‑conditional suspended sentence.
In any event, the appellant's guilty plea and remorse are the only real factors of mitigation in the appellant's favour. When the maximum sentence prescribed for an offence of criminal damage is viewed together with the appellant's personal circumstances and regard is had to the place which the criminal conduct occupies on the scale of seriousness, a sentence of 7 months' imprisonment to be suspended for 8 months would appear to be a severe sentence for this offence.
Having regard to all of the circumstances, and all relevant sentencing factors and principles, I am persuaded that the sentence imposed was unreasonable and plainly unjust. I have been persuaded that the sentence imposed upon the appellant was, with great respect to the sentencing magistrate, outside the range of a proper exercise of the sentencing discretion.
For these reasons, leave to appeal on ground 2 should be granted and the sentence set aside.
Should the appellant be resentenced by this court?
The short answer to this question is no.
Counsel for the appellant and the respondent both put a submission to the court, that if either ground of appeal is successful, the charge the subject of this appeal should be remitted to the START Court for resentencing. When regard is had to the following relevant matters that relate to events post the sentencing of the appellant on 30 August 2019, I agree that the charge should be so remitted.
The appellant was in the Frankland Centre on 26 September 2019 (when reviewed by Dr Griffiths) and then in prison on remand until 2 October 2019.[56] The report to the Magistrates Court was prepared by Dr Griffiths for an appearance by the appellant in that court on 2 October 2019.
[56] Affidavit of Andrew James Robson, sworn 13 December 2019 [6] and Annexure A.
It appears from the convictions recorded in the appellant's criminal history that the appellant was not sentenced for any offences by the Magistrates Court on 2 October 2019. It also appears from the information that has been provided to this court that the appellant may have been released on bail on that date as he was in prison on remand from 4 to 25 October 2019.[57]
[57] Affidavit of Andrew James Robson, sworn 13 December 2019 [6] and Annexure A.
On 25 October 2019, the appellant appeared before the Magistrates Court where he pleaded guilty to 10 offences, three of which occurred on 21 June 2019, which is the same date as the offence of damage for which the sentence is the subject of this appeal. Of the other seven offences dealt with on 25 October 2019, four of those offences were committed by the appellant prior to 21 June 2019, and the other three were committed after 21 June 2019, but before the date of sentence of the offence that is the subject of this appeal. The offences were three charges of criminal damage or destruction of property, one charge of damaging property, one charge of disorderly behaviour in public, one charge of failing to obey an order given by an officer, two charges of indecent acts in public, and two charges of trespass. Fines were imposed in respect of each of the 10 convictions.
The appellant committed further offences on 7 and 12 November 2019.
The appellant was then in prison on remand from 13 November 2019 to 4 December 2019.
On 9 December 2019, the appellant was convicted by the Magistrates Court at Perth of one count of possessing a prohibited drug (methylamphetamine) on 7 November 2019, for which he received a fine. On the same day, the appellant was admitted to Graylands Hospital as an involuntary patient.[58]
[58] Affidavit of Andrew James Robson, sworn 13 December 2019 [8].
It may be inferred from Dr Griffiths' report that she did not regard the appellant incapable of gaining insight into his condition. However, while Dr Griffiths stated that the appellant had whilst in the Frankland Centre had agreed to take an alternative monthly antipsychotic injection, which he received voluntarily, it appears from the appellant's recent history that the appellant may have ceased to be cooperative, which resulted in him being admitted as an involuntary patient to Graylands Hospital on 9 December 2019.
Dr Griffiths was of the opinion that the appellant requires extensive psychosocial intervention, and made a recommendation to the Magistrates Court that he be referred to the START Court, and it appears that that has occurred.
The appellant has yet to be dealt with in respect of the offences he committed on 12 November 2019. The court has been informed that an application has been made for the appellant to be accepted by the START Court in respect of these offences, which are three offences of criminal damage and one of trespass.[59] The application before the START Court is listed to be heard on 4 February 2020.
[59] Respondents outline of submissions [4].
At the time of the hearing of the appeal, the appellant's counsel informed the court he was still an involuntary patient, and when he ceases to be so, he will stay at Graylands, and if accepted by the START Court plans will be put in place for him to reside at designated accommodation, and to participate in an intervention program.
In light of the appellant's court history and his admission to Graylands Hospital, post conviction for the offence, that is the subject of the appeal, it would not be appropriate for me to resentence the appellant without receiving a presentence report, to confirm the events stated by counsel, and to ascertain if the appellant has or is likely to make any progress in addressing his insight in the symptoms of his illness, and his methamphetamine and/or alcohol abuse. These are all matters that can be addressed by the START Court. In these circumstances, it would be more efficient and appropriate for the START Court to resentence the appellant for this offence at the same time it deals with the appellant for the other matters.
Conclusion - orders
For these reasons, I am of the opinion that the following orders should be made:
(1)The affidavit of Andrew James Robson sworn 5 December 2019 be admitted into evidence in the appeal.
(2)The affidavit of Andrew James Robson sworn 13 December 2019, together with the psychiatric report annexed to the affidavit, be admitted into evidence in the appeal.
(3)The application for an extension of time to appeal be granted.
(4)Leave to appeal on ground 1 be refused.
(5)Leave to appeal on ground 2 be granted.
(6)The appeal against sentence given by the magistrate at Perth Magistrates Court on 30 August 2019 (PE 38331/2019) be allowed, and the sentence set aside.
(7)The charge (PE 38331/2019) be remitted to the START Court on 4 February 2020 for resentencing by any magistrate.
I will hear from the parties as to the precise orders that should be made to give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Secretary24 JANUARY 2020
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