Baynah v The State of Western Australia [No 2]
[2019] WASCA 103
•29 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAYNAH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 103
CORAM: BUSS P
MAZZA JA
PRITCHARD JA
HEARD: 12 MARCH 2019
DELIVERED : 12 MARCH 2019
PUBLISHED : 29 JULY 2019
FILE NO/S: CACR 191 of 2018
BETWEEN: MUKHALAD BAYNAH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 534 of 2018
Catchwords:
Criminal law - Appeal against sentence - Aggravated robbery - Attempted fraud - Alleged miscarriage of justice - Whether inadequate information as to post‑traumatic stress disorder - Alleged implied errors - Manifest excess - Type and length of sentences
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e), s 41(4)
Criminal Code (WA), s 392, s 409(1)(c), s 552
Sentencing Act 1995 (WA), s 39(2), s 39(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A G Elliott |
| Respondent | : | K I Goddard-Borger |
Solicitors:
| Appellant | : | Forbes Kirby Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The Queen [2019] WASCA 90
Ajami v Comptroller of Customs [1954] 1 WLR 1405
Baynah v The State of Western Australia [2018] WASCA 233
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358
Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
LWD v The State of Western Australia [2017] WASCA 174
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Nikora v The State of Western Australia [2018] WASCA 235
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v B (an accused) [1987] 1 NZLR 362
R v Bonython (1984) 38 SASR 45
R v Engert (1995) 84 A Crim R 67
R v Massey (1994) 62 SASR 481
R v Runjanjic (1991) 56 SASR 114
R v Turner [1975] QB 834
RST v The State of Western Australia [2016] WASCA 59
Schischka v The State of Western Australia [2015] WASCA 15
Schultz v The Queen [1982] WAR 171
Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111
Wheeler v The Queen [No 2] [2010] WASCA 105
REASONS OF THE COURT:
On 12 March 2019, the following orders were unanimously made by this court:[1]
(1)The appellant's application in the appeal dated 29 November 2018 for leave to adduce additional evidence in the appeal is dismissed.
(2)Leave to appeal on grounds 1, 2 and 3 is refused.
(3)The appeal is dismissed.
[1] Appeal ts 71.
The court said that it would publish reasons for making those orders at a later date. These are our reasons.
The appellant and Ihaia Te Huarahi Nikora (Nikora) were charged on indictment in the District Court as follows:
(1) On 27 October 2017 at Northbridge [the appellant and Nikora] stole from [L], with violence, a mobile phone and wallet, the property of [L]
And that [the appellant and Nikora] were in company with each other
And that [the appellant and Nikora] did bodily harm to [L]
And that [the appellant and Nikora] did bodily harm to [P]
(2)On the same date and at the same place [the appellant], with intent to defraud, by deceit or fraudulent means attempted to gain a benefit, namely packets of cigarettes, for [the appellant].
Count 1, which is commonly known as aggravated robbery, is contrary to s 392 of the Criminal Code (WA) (the Code). It carries a maximum penalty of 20 years' imprisonment. Count 2, which is commonly known as attempted fraud, is contrary to s 409(1)(c), read with s 552 of the Code. It carries a maximum penalty of 3 years 6 months' imprisonment.
On 13 September 2018, the appellant was convicted on his fast‑track pleas of guilty of the two counts in the indictment.[2]
[2] ts 32.
Nikora was convicted on his plea of guilty of count 1.[3]
[3] ts 32.
Later that day, the sentencing judge, Prior DCJ, sentenced the appellant to 2 years' immediate imprisonment for count 1 and 3 months' immediate imprisonment for count 2. He ordered that the sentence on count 2 be served concurrently with the sentence on count 1. Thus, the total effective sentence imposed upon the appellant was 2 years' immediate imprisonment. The appellant was made eligible for parole.[4]
[4] ts 86 - 87.
Nikora was sentenced to 20 months' immediate imprisonment, backdated to 25 March 2018, with eligibility for parole.[5]
[5] ts 87.
Both the appellant and Nikora appealed to this court against sentence. Nikora's appeal was heard separately and has been dismissed.[6]
[6] See Nikora v The State of Western Australia [2018] WASCA 235.
The appellant filed his notice of appeal on 4 October 2018. On 30 November 2018, the appellant filed an application for an expedited appeal hearing. On 13 December 2018, the appellant filed an application for bail pending appeal. On 20 December 2018, the application for an expedited hearing was granted, but the application for bail pending appeal was dismissed.[7]
[7] See Baynah v The State of Western Australia [2018] WASCA 233.
On 30 November 2018, the appellant filed his appellant's case. The appellant relied upon three grounds of appeal. Ground 1 alleged that the sentencing judge was 'led into error' or the appellant suffered a miscarriage of justice because inadequate information was provided to the learned sentencing judge 'about the nature of the Post Traumatic Stress Disorder condition suffered by the Appellant and its relevance to the commission of the offences by [him] as well as its significant mitigatory value'.[8] Grounds 2 and 3 allege, in effect, that the individual sentences imposed upon the appellant were manifestly excessive both as to length and type. As to the type of sentence, the appellant contends that a suspended imprisonment order should have been made.
[8] WAB 11.
The question of leave to appeal in respect of these grounds was referred to the hearing of the appeal.
In support of ground 1, by an application filed 30 November 2018, the appellant sought to adduce additional evidence in this appeal in the form of a report written by a provisional psychologist, Ms Jene Moody, dated 28 November 2018 (Ms Moody's report). This application was also referred to the hearing of the appeal.
The offending
In the early hours of 27 October 2017, the appellant, Nikora and a third accused were in Northbridge where they came across the victims, L and his friend P.[9] The appellant was very intoxicated, having consumed a substantial quantity of alcohol and cannabis. What then occurred is uncontroversial and was largely captured on closed‑circuit television (CCTV). We have viewed the relevant footage.
[9] The third accused was charged, but did not answer his bail. He is still at large and has not been dealt with.
The victims were walking together to buy cigarettes at a convenience store on James Street. As they did so they were approached and stopped by the appellant, Nikora and the third accused. The appellant asked L if he had any cash on him. When L informed him that he did not, the appellant demanded his wallet and, it appears, took L's ANZ bank card. While this was happening, the third accused reached near P's pockets. After P pushed the third accused's hand away, that person punched P to the back of the head. The appellant and the third accused then punched L and P multiple times. L fell to the ground. While on the ground, the appellant and the third accused continued to punch the victims. The appellant kicked P three times, including once to the head. Eventually, L handed his wallet to the appellant.[10]
[10] ts 77 - 78.
L got up and was chased away by the appellant. However, L returned to the scene to assist P. The appellant physically stopped and held L, and continued to harass him. L was then released and ran to P. As he did so, the appellant kicked L.[11]
[11] ts 78.
The appellant and Nikora then entered the Super Ezy convenience store. There, the appellant attempted to use L's ANZ bank card to buy cigarettes. As this occurred, L ran to the window of the store and informed a staff member that the appellant was using his card and that the police were on the way.[12]
[12] ts 78.
The appellant and Nikora left the convenience store and surrounded L. The appellant held on to L's wrist and punched him numerous times, causing him to fall to the roadway in the middle of James Street. During the assault the appellant told L to give him his mobile phone. L refused, until the appellant told him he had a knife. L then handed over his mobile phone to the appellant.[13]
[13] ts 78 - 79.
P then ran over and attempted to push the appellant and Nikora off L, but was met with physical resistance by Nikora.[14]
[14] ts 79.
Eventually, the appellant, Nikora and the third accused left the area together. They were stopped in the vicinity by police who took down their personal details.[15]
[15] ts 79.
On 12 December 2017, police executed a search warrant at the appellant's home where items of clothing that the appellant wore on the night of the incident were located and seized. The appellant was then taken to the Perth Police Station where he participated in an electronic record of interview, but effectively made no comment to the questions that were put to him by the investigating officers.[16]
[16] ts 79.
As a result of the aggravated robbery, L suffered a cut to his chin. P suffered a red and grazed cheek which was sore for three days. In a victim mediation report, L said he still felt scared and described what had occurred as traumatising. All of the stolen property was either located at the scene or returned to the victims.[17]
[17] ts 79, 82.
As we have said, we have viewed the CCTV footage of the incident. Given the evident high level of force and the persistence of the attack upon the victims, L and P are indeed fortunate to have suffered only minor physical injuries.
The appellant's personal circumstances
The appellant was 19 years old when he was sentenced. He was born in Western Australia. When he was 5 months old, his father moved to the United States of America. The appellant had no further contact with his father until he was 12 years old. The appellant was raised by his mother alongside his three siblings. He views his childhood in a negative light.[18]
[18] ts 79 - 80.
In 2012, due to his poor behaviour, the appellant was sent to the United States of America to reside with his father, with whom he stayed for a period of about eight months. The appellant was then relocated to Kenya to live with his extended family.[19]
[19] ts 80.
The appellant told the author of the pre‑sentence report that while he resided in Kenya he engaged in criminal behaviour by 'robbing' people to 'survive'.[20] As a result, he was incarcerated for a period of 8 months in what was said to be 'a private Kenyan prison'.[21] The appellant said that while he was imprisoned he was tortured and two people were killed in front of him.[22]
[20] Pre‑sentence report, page 3.
[21] Pre‑sentence report, page 3.
[22] Pre‑sentence report, page 3.
In December 2016, the appellant returned to Perth. At the time he was sentenced, he was residing with his father, but his closest relationship was with his mother, although he maintains contact with his siblings.[23]
[23] ts 80.
The appellant's education is limited. He left school at the end of year 9 while he was living in the United States of America. Consequently, his employment opportunities have been limited. At the time the offences were committed and when he was sentenced, he was unemployed, but after the commission of the offences he was employed as a process worker/storeperson at a chicken processing factory. He had to leave that employment after suffering a back injury. The appellant has expressed a desire to work in the construction industry.[24]
[24] ts 80; pre‑sentence report, page 3.
The appellant has used cannabis on a regular basis since he was 12 years old. He also has a history of problematic alcohol use. Prior to the commission of the offences he would binge on alcohol on a fortnightly basis with friends. As a result of his alcohol consumption, he would, on occasion, suffer from blackouts.[25] The appellant has a history of addiction to codeine and has used the prescription drug Rohypnol. He stated to the author of the pre‑sentence report that when he uses Rohypnol he feels 'invincible'.[26]
[25] ts 80.
[26] Pre‑sentence report, page 4.
Although the appellant has no physical health issues, his Honour observed:[27]
Your traumatic childhood and exposure to violence means that violent behaviour has been normalised for you. You experience symptoms suggestive of post‑traumatic stress disorder such as flashbacks and nightmares.
[27] ts 80.
Later, his Honour said:[28]
You expressed a desire to engage in counselling and intervention to address your offending behaviour. You haven't received a formal diagnosis for post‑traumatic stress disorder, but I accept your traumatic childhood, and the exposure you've had to violence, may have caused you to suffer from that disorder.
[28] ts 81.
At the time of the offending, the appellant had no prior convictions.[29]
[29] ts 80.
The pre‑sentence report
As indicated earlier, his Honour had before him a written pre‑sentence report. The report is dated 22 May 2018. The writer of the report observed that the appellant experiences symptoms suggestive of post‑traumatic stress disorder (PTSD) such as flashbacks and nightmares and urged the appellant 'to engage with a General Practitioner for a mental health assessment prior to his next court appearance'. The report writer continued, 'psychological or psychometric assessment may be beneficial to ascertain if [the appellant] has any undiagnosed mental health or personality disorders'.[30]
[30] Pre-sentence report, pages 3 - 4.
The author of the report noted that the appellant told him he would frequently binge drink on a fortnightly basis with peers while going 'clubbing'. He would consume anything up to 20 alcoholic beverages in addition to those he had drunk before going out.[31]
[31] Pre-sentence report, page 4.
The appellant said he had no recollection of his violent behaviour. The appellant said that before going into Northbridge on the night of the offences, he and his co‑offenders had, between them, drunk one bottle of vodka and smoked three cones of cannabis.[32]
[32] Pre‑sentence report, page 2.
The author of the pre‑sentence report also observed that the appellant 'did not perceive his substance use to be problematic', although the appellant said he was willing to engage in counselling to address the issues.[33]
[33] Pre-sentence report, page 4.
The sentencing remarks
After making findings of fact, his Honour noted a number of aggravating factors, being:
(1)The offence was a 'group street mugging'. The appellant was one of three offenders seeking personal property from, and attacking, the two victims on a road in a public place, namely the Northbridge entertainment precinct.[34]
(2)The offending was persistent and involved a continuing and significant level of violence which included acts of punching and kicking to the victims, including to their heads.[35]
(3)Some of the acts of violence were carried out when the victims were on the ground and defenceless. His Honour characterised these actions as 'cowardly'.[36]
(4)The appellant told L that he had a knife.[37]
(5)When L fled from the scene, the appellant chased and attacked him.[38]
[34] ts 81 - 82.
[35] ts 81.
[36] ts 81.
[37] ts 82.
[38] ts 82.
The mitigating factors were:
(1)The appellant pleaded guilty at the first reasonable opportunity, for which his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act1995 (WA).[39]
(2)The appellant's traumatic childhood, including the events he experienced or witnessed in Kenya, as well as the symptoms of flashbacks and nightmares that were suggestive of PTSD.[40]
(3)The appellant was genuinely remorseful.[41]
(4)The appellant offered to participate in victim mediation with L, although L declined to participate.[42]
(5)The appellant was a young first offender.[43]
[39] ts 82, 86.
[40] ts 82 - 83.
[41] ts 84.
[42] ts 82.
[43] ts 84.
His Honour accepted that, at the time of the offences, the appellant was under the influence of alcohol and cannabis, but said, as the appellant himself had acknowledged, this was no excuse for the offending.[44]
[44] ts 81.
With respect to count 1, his Honour considered that the seriousness of the offending was such that the only appropriate sentence was a sentence of imprisonment. In so concluding, his Honour emphasised both general and specific deterrence.[45]
[45] ts 86.
After imposing sentences of imprisonment for both counts on the indictment, his Honour turned to the question of whether the sentences should be suspended, conditionally or otherwise. In doing so, he, correctly, took into account again all of the relevant sentencing factors. He acknowledged the mitigating factors which he described as 'significant'. Having done so, he concluded that the factual circumstances of the offending were too serious for the sentences of imprisonment to be suspended, conditionally or otherwise.
Ground 1
Ground 1 reads:
The learned sentencing judge was led in to error by, or a miscarriage of justice was occasioned by, inadequate information that was provided to His Honour at sentencing about the nature of the Post Traumatic Stress Disorder condition suffered by the Appellant and its relevance to the commission of the offences by the Appellant as well as its significant mitigatory value.
The appellant accepts that there was no material before the sentencing judge which stated that the appellant suffered from PTSD and the effect that condition had upon the appellant's offending.[46]
[46] Appellant's submissions, par 22.
However, since the sentencing, a psychologist, Ms Jene Moody, has carried out a psychological assessment of the appellant. Her opinions are set out in a report dated 29 November 2018. Materially, they are:[47]
[47] Ms Moody's report, pages 2 - 3.
(1)The appellant suffers from severe untreated (and previously undiagnosed) PTSD.
(2)The appellant has suffered from this condition since the age of 14 years.
(3)The PTSD is linked to the appellant's traumatic experiences in Africa.
(4)The trauma suffered by the appellant has, in addition to PTSD, produced a personality marked by:
(a)a dissociative complication in which, under stressful conditions, the appellant can temporarily lose awareness of the here and now, and space and time; and
(b)a fugue complication in which he can engage in complex behaviours and which he then becomes amnesiac of.
These features require 'more extensive testing and assessment'.
(5)The appellant's offending was 'causally related' to his post traumatic condition; the offences being an isolated act committed in a symptomatic 'black out' state and triggered by alcohol and substance use.
The submissions
The appellant submitted that this court should admit into evidence Ms Moody's report. The appellant contended that had the report been before the primary judge, a different and less severe sentence would have been imposed.
The respondent opposed the application to adduce additional evidence. The respondent objected to the admission of the report on several bases, including that some of the matters raised in the report concern irrelevant events which have occurred since the appellant was sentenced, and that Ms Moody was not qualified to give the opinions contained in the report. In any event, the respondent contended that the contents of the report do not justify the conclusion that a different sentence should have been imposed.
Before addressing the merits of ground 1, it is necessary to set out the relevant legal framework.
The legal framework
In LWD v The State of Western Australia,[48] this court set out the relevant principles applicable to whether additional evidence may be adduced on an appeal against sentence. We respectfully adopt what was said in that case, without repeating it. It is enough for present purposes to make three observations.
[48] LWD v The State of Western Australia [2017] WASCA 174 [81] - [87].
First, on an appeal against sentence, additional evidence will ordinarily not be admitted under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) in relation to the grounds of appeal unless, had the additional evidence been before the sentencing judge, a different sentence should have been imposed.
Secondly, a distinction is usually drawn between matters which existed, but were not known, at the time of sentencing on the one hand, and matters which have come into existence since the time of sentencing on the other. Evidence of the former may be admitted, while evidence of the latter will not ordinarily be admitted because an appellate court does not fulfil a continuing supervisory role over the effect of a sentence of imprisonment upon an individual. Where a sentence, appropriate when passed, has, by reason of subsequent events, turned out to be excessive, that is a matter for executive government, rather than this court. However, evidence of events subsequent to the time of sentencing may be received to show facts relevant to the sentencing process which were in existence at the time of sentencing but either not known to the sentencing judge or not properly appreciated at the time. We accept that if the appellant had PTSD at the time of his sentencing, that is a matter which existed but was not known at the time of his sentencing.
Thirdly, s 41(4)(a) of the Criminal Appeals Act also permits this court, when deciding an appeal that does, or may, require it to impose a sentence, to take into account any matter, including any material change to a person's circumstances, relevant to the sentence that has occurred between when the primary court dealt with the person and when the appeal is heard. The limits upon, or preconditions to, the exercise of the power conferred by s 41(4)(a) do not require definition in this case.[49] The appellant did not rely upon s 41(4)(a) as a pathway to admissibility. Nothing further needs to be said about it.
[49] Abbott v The Queen [2019] WASCA 90 [49].
Of course, any additional evidence sought to be adduced must be admissible under the law of evidence. Where that additional evidence is by way of expert opinion, it must conform with the well‑established principles applicable to such evidence. As was said in RST v The State of Western Australia,[50] at common law, expert or opinion evidence is admissible in a criminal trial if:
(a)the evidence is with respect to matters that are relevant to a fact or facts in issue; and
(b)the fact finding tribunal would be unable to form a sound judgment about those matters without the assistance of a person or persons possessing special knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.
See Clark v Ryan;[51] R v Bonython;[52] Murphy v The Queen;[53] Farrell v The Queen;[54] Osland v The Queen;[55] HG v The Queen.[56]
[50] RST v The State of Western Australia [2016] WASCA 59 [24], [26], [28] - [29].
[51] Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491 (Dixon CJ, Fullagar J agreeing).
[52] R v Bonython (1984) 38 SASR 45, 46 ‑ 47 (King CJ, Matheson & Bollen JJ agreeing).
[53] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 111 (Mason CJ & Toohey J), (130) (Dawson J).
[54] Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286, 292 ‑ 294 (Gaudron J).
[55] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 336 (Gaudron & Gummow JJ).
[56] HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [58] (Gaudron J).
Expert or opinion evidence is not admissible in relation to matters of ordinary human experience. See R v Turner;[57] R v Runjanjic;[58] R v Massey.[59] For example, expert or opinion evidence as to a person's behavioural characteristics is not admissible unless the significance of those characteristics could not properly be understood by the fact finding tribunal without the aid of that evidence. See Schultz v The Queen;[60] Murphy.[61]
[57] R v Turner [1975] QB 834, 841 (Lawton LJ, Nield & Cantley JJ).
[58] R v Runjanjic (1991) 56 SASR 114, 120 (King CJ, Bollen J agreeing).
[59] R v Massey (1994) 62 SASR 481, 487 (King CJ, Perry J agreeing).
[60] Schultz v The Queen [1982] WAR 171, 173 ‑ 174 (Burt CJ, Wickham J agreeing & Jones J relevantly agreeing).
[61] Murphy (130) (Dawson J).
If a court is to assess the value of proposed expert or opinion evidence, it must know the facts on which it is based. See Turner;[62] R v B (an accused).[63] In Makita (Australia) Pty Ltd v Sprowles,[64] Heydon JA observed:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland ConstructionsPty Ltd [1984] 2 NSWLR 505 at 509 ‑ 510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved [64].
[62] Turner (840).
[63] R v B (an accused) [1987] 1 NZLR 362, 365 (McMullin J).
[64] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
A person who is to give expert or opinion evidence must, of course, have acquired, by study or experience, sufficient knowledge of the matters the subject of his or her evidence to render the evidence of value to the jury in resolving the issues left to them. See Bonython.[65] Evidence of an expert's opinion must be confined to matters which are the subject of his or her special knowledge or experience. See Transport Publishing Co Pty Ltd v The Literature Board of Review.[66] It is necessary, in deciding what qualifications are required of an expert and whether the witness in question has those qualifications, to identify with precision the issues upon which his or her evidence is proposed to be adduced. See Ajami v Comptroller of Customs.[67]
[65] Bonython (47).
[66] Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 119 (Dixon CJ, Kitto & Taylor JJ).
[67] Ajami v Comptroller of Customs [1954] 1 WLR 1405, 1408 (PC).
Ms Moody's report
Ms Moody's qualifications
Ms Moody has a Bachelor of Arts with Honours, a Bachelor's Degree in Psychology, a Graduate Diploma in Psychology and a Certificate in Family Therapy.[68] In appendix A to her report, Ms Moody described her experience:
I am a Psychologist with provisional registration with the Australian Health Practitioners' Registration Agency (AHPRA), a family therapist and psychotherapist in private practice with 25 + years' experience in mental health-related areas. I have a long-standing interest and experience in psychological and psychoeducational treatments for the long-term effects of trauma. I have conducted all psychological interviews, psychological test administration and written this report.
Clinical/Counselling. I have worked in government and non‑government counselling agencies. Before going in to private practice 15 years ago, I have been a counsellor and Acting Clinical Coordinator at the Sexual Assault Resource Centre (SARC) and the Clinical Manager at Allambee Counselling Services in Mandurah.
Teaching/Educational. I have been a contract lecturer and course controller in Curtin University's Social Work Masters' [sic] in Counselling. I have taught graduate programs at the William Street Family Therapy Centre. I have also provided case consultation and professional development services in a private capacity to agencies, (including Relationships Australia; Notre Dame University and others) and individuals and groups.
[68] Appeal ts 46, 51.
During the hearing of this appeal, the appellant's counsel said that Ms Moody's provisional registration with AHPRA as a psychologist meant that she 'is a registered psychologist who must be supervised'. He accepted that her provisional registration was a very recent qualification.[69] The appellant's counsel also accepted that Ms Moody was not qualified as a clinical psychologist.[70] He acknowledged that Ms Moody was:[71]
[a] psychologist of relatively little experience, but she is a person who has been a family therapist and psycho-therapist in private practice with 25 or more years' experience in mental health related areas and a longstanding interest and experience in psychological and psycho‑educational treatments for long-term effects of trauma.
Ms Moody's findings
[69] Appeal ts 51.
[70] Appeal ts 46, 51.
[71] Appeal ts 52.
Ms Moody interviewed the appellant at Acacia Prison on 13 November 2018. On some other occasion, she interviewed the appellant's partner. The appellant's solicitors provided Ms Moody with a number of documents, including a copy of the amended statement of material facts. It does not appear that Ms Moody was provided with, nor had she seen, the CCTV footage. The stated purpose of the report was to assess the appellant 'for a post-traumatic condition'.[72]
[72] Ms Moody's report, page 1.
In the course of her 3-hour interview with the appellant, she administered four psychometric tests.[73] One of those was the PTSD checklist for DSM-5. This test is described in the report as 'a 20‑item self-report measure that assesses the presence and severity of PTSD symptoms'. Ms Moody states that this test may be used 'to assist in making a provisional or temporary diagnosis of PTSD'.[74] While it appears from the report that at least part of the PTSD checklist was completed by the appellant, it is not clear from the report whether he completed this or any of the other psychometric tests administered by Ms Moody. Under the heading 'Assessment and Diagnosis' and after Ms Moody referred to the psychometric tests she administered, she wrote:[75]
Please note: assessment was abbreviated when I became aware of subtle indications of distress in the client. I made a clinical determination that further assessment could put the client at risk of entering a dissociative and thus dangerous to self/others state.
[73] Ms Moody's report, Appendix C, pages 10 - 11.
[74] Ms Moody's report, Appendix C, page 11.
[75] Ms Moody's report, page 3.
Ms Moody noted the history provided to her by the appellant of his experiences while living in Kenya, including while in detention, seeing dead burned bodies of two of his friends; being subject to 'brutal captivity conditions'; witnessing and experiencing 'multiple bashings with the side of a machete, canes, whips and other objects'; seeing 'a man die by hanging'; and being forced to swallow harmana (a herbal 'medicine' which, in high doses, causes hallucinations and can cause death) on a daily basis.[76] In describing the traumatic events allegedly experienced by the appellant while he was in Kenya, Ms Moody added some factual observations, apparently based on her own research. At one point in the report, she wrote:[77]
Violence and death is an everyday, hourly event in an anarchic Nairobi. 'Mob justice' is rife, tolerated by the police and government authorities. On the streets of Nairobi, 'mob justice' means what it has meant for centuries: a civilian can 'call out' a suspected thief or car-jacker or a person who has done nothing at all, a 'mob' rises up and metes out its own 'justice'. As many disturbing civilian cellphone videos freely available on YouTube testify, the 'called out' person may (if physically capable) escape with a severe beating: more often [she or he] is beaten or stoned to death and set on fire.
[76] Ms Moody's report, pages 4 - 5.
[77] Ms Moody's report, page 5.
At another point in the report, when dealing with the effects of harmana, Ms Moody states:[78]
A journalist for the BBC documentary which recently exposed the Darushifa torture regime obtained and had tested one sample [of the drink harmana], which reportedly contained over 100 times the normal 'medicinal' dose of this substance.
[78] Ms Moody's report, page 5.
Later in the report, Ms Moody wrote that, in the course of interpreting the appellant's test and interview results, she consulted with a senior colleague and related how that colleague asked her if she was 'describing someone who was alive'.[79]
[79] Ms Moody's report, page 6.
Ms Moody noted that the appellant claimed he had no recollection of his offending behaviour until the police showed him the CCTV footage. She said that the appellant told her that he had previously suffered a series of alcohol and substance-triggered blackouts. She also noted the appellant's increasing substance use since his return to Australia.[80]
[80] Ms Moody's report, page 4.
We summarised at [43] of these reasons Ms Moody's opinions. In addition to those opinions, Ms Moody expressed the view that 'incarceration poses a significant risk of further exacerbation of his untreated illness' and that in her view, if a custodial sentence was necessary, for his own safety and the safety of others the appellant should be kept in a locked-down psychiatric hospital until his condition has been assessed and stabilised.[81]
[81] Ms Moody's report, page 6.
Ms Moody concluded her report with this observation:[82]
[the appellant] is an Australian citizen who spent most of his adolescence unprotected in the vile, violent underbelly of a country in massive political unrest, governed by corruption, an uncontrolled police/militia and an enraged, poverty-stricken underclass. He has survived conditions few of us could imagine: but he is in no position to understand, let alone to self-manage such a serious illness.
[82] Ms Moody's report, pages 6 - 7.
The respondent made it clear in its written submissions that it challenged the admissibility of Ms Moody's report, including as to her expertise. The appellant did not call her to give evidence to this court.
Ground 1 - disposition
Ground 1 alleged an error on the part of the sentencing judge, or alternatively, a miscarriage of justice.
As stated earlier in these reasons, there was no evidence before the learned sentencing judge to the effect that the appellant suffered from PTSD. Indeed, if the appellant suffered from PTSD, it was, at the time the appellant was sentenced, undiagnosed. The learned sentencing judge was not asked by defence counsel to find that the appellant had PTSD. In these circumstances, it cannot be said that his Honour erred as alleged.
Ground 1 could only succeed on the basis that there has been a miscarriage of justice and only if the appellant's application seeking leave to adduce additional evidence in the form of Ms Moody's report is granted. For the reasons which follow, we did not give leave to adduce the proposed additional evidence.
We will deal first with the respondent's objection to Ms Moody's expertise.
The onus is on the appellant to demonstrate that Ms Moody was qualified to provide the expert opinions that she expressed in her report.
This court has not been informed of the precise nature of Ms Moody's academic studies. It is not known whether her Bachelor of Arts with a major in Psychology or her Graduate Certificate has provided her with the requisite academic knowledge of PTSD and its accompanying features.
It may be accepted that Ms Moody has recently qualified as a psychologist and has been in private practice for over 25 years as a family therapist and psychotherapist, and that she has a long‑standing interest and experience in psychological and psychoeducational treatments for the long‑term effects of trauma. Based on her academic training and experience, we are prepared to accept that Ms Moody has sufficient expertise to make a provisional diagnosis that the appellant has PTSD.
However, there is nothing in her academic training or experience which satisfied us that she has sufficient expertise to diagnose the appellant as having a personality marked by dissociative and fugue complications (particularly when the recommended testing and assessment for these complications does not appear to have been carried out) or that the appellant should be kept in a locked‑down psychiatric hospital or that the appellant's offending was causally related to his post‑traumatic condition.
Opinions as to causation or whether the appellant should be hospitalised are usually within the province of a clinical or forensic psychologist or a psychiatrist. Ms Moody is not a clinical or forensic psychologist. She is a recently, and provisionally, registered psychologist who must be supervised. It is unknown whether her supervisor reviewed and concurred with her findings.
Even if Ms Moody was qualified to provide the opinion as to whether the appellant's offending was causally related to a diagnosis of PTSD, the reasoning which had led her to this conclusion is not set out in the report so that her conclusion can be scrutinised and a judgment made as to its reliability. For example, Ms Moody does not address the questions of why the appellant's asserted PTSD manifested itself when he was not a victim of aggression or threatened aggression, but was the perpetrator of aggression, or why the offending was a consequence of his PTSD rather than merely his excessive consumption of alcohol and drugs on the night in question.
Ms Moody's opinions are undermined by her reliance upon 'facts' which have not been proved by admissible evidence, most notably, various YouTube videos and an unnamed BBC documentary. These 'facts' appear to have been used by Ms Moody to verify the history given to her by the appellant and to inform her views as to the severity of the appellant's asserted PTSD.
The language used by Ms Moody in the report is, at times, emotive and displays a concerning lack of detachment and objectivity which adversely impacts on the weight that we would give to her conclusions. For example, the inclusion of the comment apparently made to her by a colleague referred to in [61] of these reasons and her concluding observation quoted at [64] of these reasons were inappropriate.
Even if Ms Moody's diagnosis of PTSD was accepted without reservation and her opinion as to causation was accepted, we concluded that a different sentence should not have been imposed because of this factor. We reached this conclusion for two reasons.
First, and crucially, the appellant was aware, prior to the commission of the offences, that he was prone to suffer 'blackouts' as a result of the consumption of alcohol and drugs. Ms Moody acknowledged that the 'blackout' during which the offences were committed was triggered by his voluntary intoxication by the consumption of alcohol and drugs. In the circumstances, the appellant's self-induced intoxication, while explaining the offences, does not reduce the appellant's moral culpability for the offences and does not mitigate the offending.[83]
[83] See Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 [41].
Second, the existence of a causal relationship between the appellant's condition and the offending does not automatically result in a lesser sentence. As McLure P observed in Wheeler v The Queen [No2],[84] citing Gleeson CJ's well known statement in R v Engert,[85] mental impairment may be relevant in more than one respect and may not affect the outcome because it weighs both positively and negatively.
[84] Wheeler v The Queen [No 2] [2010] WASCA 105 [7].
[85] R v Engert (1995) 84 A Crim R 67 [71].
Weighed against the mitigating effect that the appellant's asserted PTSD may have provided is the need for public protection. According to Ms Moody, the appellant is prone to experience blackouts as a result of his problematic and excessive consumption of alcohol and drugs which led, in this case, to his offending behaviour. The author of the pre-sentence report noted that the appellant does not perceive that his substance abuse is problematic. Despite the appellant's apparent willingness to engage in substance abuse counselling, it cannot be said that the appellant does not pose a risk of further violent offending, particularly if he continues to consume alcohol to excess and take drugs.
Of course, mental illness or impairment may be mitigating even if it is not causative of the offending. While his Honour did not find that the appellant had PTSD, he did find that he had the symptoms of PTSD and that he may have the disorder. In these circumstances, and having regard to all relevant facts and circumstances and all relevant sentencing factors, we are not persuaded that an actual diagnosis of PTSD would have had any material impact on the sentencing outcome.
It was submitted that a diagnosis of PTSD would make incarceration for this appellant more onerous than for an offender without PTSD. Whether this is so would depend upon evidence as to what measures are being taken to deal with the appellant's PTSD while in prison. No evidence was produced to this court on this subject.
It is for these reasons that the application to adduce additional evidence was dismissed and leave to appeal on ground 1 was refused.
Grounds 2 and 3
These grounds may be dealt with together. As we have said, in effect, they allege that the individual sentences imposed upon the appellant were manifestly excessive both as to length and type. The appellant's primary submission was that the learned sentencing judge should have imposed a suspended term of imprisonment with conditions.
The relevant legal principles
The relevant principles applicable to grounds 2 and 3 are uncontroversial.
A sentencing judge must sentence in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. The sentence imposed must be commensurate with the seriousness of the offence. The court determines the seriousness of the offence by taking into account the statutory penalty; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors.
A ground that a sentence is manifestly excessive asserts implied error on the basis that the outcome is unreasonable or plainly unjust. Appellate intervention is not warranted unless, having regard to all of the relevant facts and circumstances and all of the relevant sentencing factors, the appellate court is driven to conclude that there must have been some misapplication of principle.
In determining whether a sentence is manifestly excessive, the court must examine the sentence imposed by reference to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in the Sentencing Act to which we have already referred, that it is not appropriate to impose suspended or conditional suspended imprisonment: see s 39(2) and s 39(3) of the Sentencing Act.
A sentencing judge must be satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.
Submissions
The appellant's arguments in support of grounds 2 and 3 focus on the sentence of immediate imprisonment imposed for the offence of aggravated robbery. They are, in essence, captured in the particulars of grounds which rely upon the relatively minor nature of the injuries inflicted upon the victims and that the learned sentencing judge paid insufficient regard to the appellant's asserted PTSD and his youth. Tied to the minor nature of the injuries inflicted, at the hearing of the appeal, the appellant's counsel submitted the force inflicted by the appellant was minor.[86]
[86] Appeal ts 64 - 66.
Grounds 2 and 3 - disposition
In our opinion, there was no merit in grounds 2 and 3.
The offence of aggravated robbery, as we have explained, carries a maximum penalty of 20 years' imprisonment.
We will not repeat the facts of the offending set out at [13] ‑ [18] of these reasons. They are, self‑evidently, serious. The offending was prolonged and persistent; the appellant was the main aggressor in a group attack upon two defenceless victims, both of whom were assaulted, harassed and terrorised. He punched and kicked the victims before and after the attempted fraud in the convenience store. When L refused to give in to the appellant's demands for L's mobile phone, the appellant told L he had a knife. Nothing the victims did could conceivably have justified or explained the appellant's conduct.
His Honour's characterisation of the offending as cowardly and 'a very serious street mugging' was entirely apt. Offending of this kind which occurs at night in popular areas such as Northbridge must be deterred to ensure, as far as possible, the safety of others.
While it is true that the victims, L and P, did not suffer serious physical injuries, that does not detract from the seriousness of what the appellant did. The appellant was fortunate that L and P were not more seriously injured. The absence of more serious injury is no more than the absence of an aggravating factor. Of course, the potential for more serious consequences to the victim cannot be ignored. Nor can the apparent psychological effects that the offending has had upon L.
There were important mitigating factors to be taken into account, all of which were identified by the learned sentencing judge, most significantly the appellant's pleas of guilty, his good record, his youth, his traumatic experiences in Kenya and that he had been normalized to violence. His Honour also took into account the appellant's PTSD symptoms and that he may suffer from the disorder.
The appellant did not rely upon any sentencing decisions of this court said to be comparable. In Schischka v The State of Western Australia,[87] it was said that aggravated robberies can be, and are, committed in a wide range of circumstances.[88] As Buss JA (with whom Mazza JA, relevantly, agreed) pointed out in that case, the sentencing range for aggravated robbery has been 'firmed up', particularly where, as in this case, the victim has been violently assaulted, in order to recognise the prevalence and seriousness of the offending. One may add to this the need for general deterrence.[89]
[87] Schischka v The State of Western Australia [2015] WASCA 15.
[88] Schischka v The State of Western Australia [30], [62].
[89] Schischkav The State of Western Australia [62] - [63].
We are satisfied, having regard to all of the relevant circumstances in the case, including the mitigating circumstances which have been identified, that the overall seriousness of the offence of aggravated robbery was such that no other penalty apart from immediate imprisonment was reasonably open. Specifically, suspended imprisonment, with or without conditions, was inappropriate. We were not persuaded that his Honour erred in imposing an immediate term of imprisonment for count 1 or, for that matter, count 2. Further, we were not persuaded that the length of the terms of imprisonment are manifestly excessive, having regard to all of the relevant circumstances and all of the relevant sentencing factors.
In our opinion, implied error was not established. The sentences that were imposed upon the appellant were not unreasonable or plainly unjust. The grounds had no reasonable prospect of succeeding. It is for these reasons that leave to appeal on both grounds was refused.
Conclusion
As none of the grounds had a reasonable prospect of succeeding, leave to appeal was refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza29 JULY 2019
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