Bennier v Millar - [2016] WASC 393

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BENNIER -v- MILLAR [2016] WASC 393

CORAM: MARTINO J

HEARD: 1 DECEMBER 2016

DELIVERED : 1 DECEMBER 2016

FILE NO/S: SJA 1091 of 2016

BETWEEN: MICHAEL PAUL BENNIER
Appellant
AND
BENJAMIN JAMES MILLAR
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
File No  :MH 537 of 2016

Catchwords:

Criminal law - Appeal against sentence - Trespass - Whether sentence of 7 months' imprisonment suspended for 9 months manifestly excessive - Whether sentence reduced by reason of plea of guilty

Legislation:

Criminal Code (WA), s 70A
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr L R Nicholls

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Gok v The State of Western Australia [2010] WASCA 185
Horner v Hunt [2013] WASC 241
Krijestorac v The State of Western Australia [2010] WASCA 35
Moir v The State of Western Australia [2014] WASCA 25
Nembouse v The State of Western Australia [2015] WASCA 68
Weston v Cartmell [2015] WASC 87

MARTINO J: On 15 March 2016 the appellant, Mr Bennier, appeared in the Magistrates Court at Mandurah on a charge of trespass under s 70A(2) of the Criminal Code (WA). He was represented by duty counsel. He pleaded guilty. He was sentenced to 7 months' imprisonment suspended for 9 months. On 18 November 2016 he filed an appeal notice seeking leave to appeal and an extension of time to appeal against that sentence.
The appeal notice contained one ground of appeal. A second ground of appeal has been added by a consent order made on 21 November 2016. The two grounds of appeal are:
1The learned sentencing Magistrate erred in imposing sentence of imprisonment, albeit suspended, for the offence, the sentence imposed being manifestly excessive when regard is had to the circumstances of the offending and to the appellant's personal circumstances.
2The learned sentencing Magistrate erred [in] failing to reduce the head sentence imposed to give the appellant credit for his plea of guilty.
Since being sentenced for the offence of trespass Mr Bennier has been charged with an offence of aggravated burglary and an offence of stealing. His application for an extension of time to appeal is supported by an affidavit made by the solicitor acting for him in relation to those charges. When taking instructions on those charges on 11 October 2016 the solicitor ascertained that a conviction on either of the charges would breach the suspended imprisonment order. On taking those instructions the solicitor investigated the circumstances of the trespass offence. On 31 October 2016 he obtained a copy of the transcript of the sentencing hearing.
This appeal has been expedited because the prosecutions in the Magistrates Court on the charges of aggravated burglary and stealing have been adjourned pending the outcome of this appeal.
The facts of the offence of trespass were that at approximately 1.30 am on 15 January 2016, Mr Bennier was seen by a member of the public standing at the edge of a railway bridge on Paganoni Road in Karnup. He was standing on a railway overpass for Transperth passenger trains. The area is fenced off with a tool, chain link fence and is clearly signed as being Transperth property, with no unauthorised access. Police were called and attempted to speak with Mr Bennier, who refused to engage with the police officers. As a result of Mr Bennier's actions, Transperth trains were cancelled between Mandurah and Rockingham. Substantial police and emergency services resources were called to the scene, including specialist negotiators. After approximately 10 hours, Mr Bennier was removed from the bridge and detained for a mental health assessment.
After those facts were provided to the learned magistrate duty counsel made a plea in mitigation. She informed her Honour that her instructions were that following the offending Mr Bennier was taken to Rockingham Hospital where he was 'given the all clear' and he 'didn't spend any time there'.
Her instructions were that Mr Bennier has been diagnosed with schizophrenia for which he received fortnightly injections. He was under the care of Peel Mental Health, saw a psychiatrist monthly and had a recent admission to the mental health ward.
Counsel informed her Honour that Mr Bennier had employment for almost a year, he worked 56 hours a week and his employer was aware of his health issues.
The learned magistrate then heard from Ms Roe, who I understand was a community corrections officer delivering an oral presentence report. Ms Roe informed her Honour that she had spoken to Mr Bennier and that Mr Bennier had become known to the Department of Corrective Services because he had previously applied to complete parole he was serving in New South Wales in Western Australia. That application had been denied because there were significant mental health issues which it was felt were better dealt with in New South Wales. Mr Bennier had not come to the attention of the department since he had come to Western Australia.
Ms Roe informed her Honour that there may have been some drug use on the day of the offence of trespass, or leading up to that day, and that Mr Bennier denied using drugs since then. Ms Roe also said that Mr Bennier had family support and stable accommodation.
She said that Mr Bennier was fully aware and that he had told her that it was not going to happen again, because it was a one off incident. Ms Roe concluded that apart from substance abuse counselling she did not consider that the Department of Corrective Services could assist Mr Bennier.
Her Honour then asked duty counsel if she had instructions as to why Mr Bennier had committed the offence and so held up trains for approximately ten hours. Counsel informed her Honour that she had endeavoured to obtain instructions as to why Mr Bennier had committed the offence, but had not been provided with any instructions.
She informed her Honour that Mr Bennier's instructions were that he was not on a community treatment order and that he went voluntarily for his injections fortnightly, that there seemed to have been some irregularity with Mr Bennier taking his medication and that there may have been one injection missed around the time of the offending.
Her Honour informed counsel that she regarded the offence as a particularly serious trespass. Her Honour noted Mr Bennier's mental health problems and said that she was considering suspending a term of imprisonment. Her Honour said that the offence was particularly serious and that she could not recall having imposed a term of imprisonment, either to be served or suspended, for an offence of trespass. Counsel said:
The only other factor there, your Honour, is with the mental health issues. Obviously, he's not a suitable vehicle for individual deterrence.
Her Honour said:
Well, that's right. And that's why I would be looking at – if I were to impose a term, I would be looking at suspending that term because of his personal factors (ts 6).
Counsel requested a short adjournment to take instructions which her Honour granted. When the matter was called on again counsel made further short submissions, acknowledging that the offending was at the higher end of the scale of trespass offences, referred to Mr Bennier's mental health and substance issues, his employment, his fines and informed her Honour that there was no further submission that she wished to make.
At the commencement of her sentencing remarks the learned magistrate noted that Mr Bennier pleaded guilty to the charge of trespass. She said that the facts of the offending were somewhat unusual and that as a result of the offending trains between Mandurah and Perth were stopped for approximately ten hours, putting a lot of people out and causing concern for the railway authority, police and any other service that may have been called in to deal with the situation.
Her Honour said that she regarded the offending as a most serious form of trespass.
Her Honour referred to the maximum penalty as being 12 months imprisonment or a fine of $12,000. She said that she had considered imposing a fine and she had considered community orders but she had reached the conclusion that because of the serious nature of the offending and the impact that the offending had on many people, that a term of imprisonment was warranted.
Her Honour said that she had given consideration to Mr Bennier's personal circumstances, his plea of guilty and his mental health issues. As a result of those factors she had decided to suspend the term of imprisonment. Her Honour imposed the sentence appealed from.
Her Honour then explained the effect of the sentence to Mr Bennier and then said:
So it's really on your shoulders, Mr Bennier, if you stay – for you to stay out of prison (ts 7).
In stating that trains between Mandurah and Perth were stopped her Honour was in error. The trains between Mandurah and Rockingham were cancelled. Nothing turns on this error, the public transport system was significantly interrupted by the appellant's offending.
I will consider the seriousness of the offending before considering the grounds of appeal separately. The learned magistrate assessed the offending as being a most serious form of trespass. Counsel for Mr Bennier submits that while the offending had significant consequences in that trains could not run and police negotiators were called the act committed by Mr Bennier was standing on a bridge to which he was denied access. Counsel has said that the statement of material facts provided, in a portion not read to the court, that the appellant's explanation was that he was on the bridge to look at the stars. She has pointed out that duty counsel for Mr Bennier told the court that she had no instructions as to why Mr Bennier committed the offence, although she had endeavoured to obtain them. Counsel has submitted that although no explanation was forthcoming there was no evidence to suggest that the appellant intended or anticipated the consequences that flowed from his actions.
It is my view that if the offending had simply been standing on the bridge and then leaving when he was requested to do so the offending would have been far less serious and there would have been merit to the submission that there was no evidence that Mr Bennier intended or anticipated the consequences of his offending. However Mr Bennier remained on the bridge after police attended and attempted to speak with him. He refused to engage with the police officers. He remained on the bridge for approximately ten hours. While Mr Bennier does have mental illness there is no evidence to suggest that he did not appreciate the obvious disruption to public transport and significant use of police resources caused by his offending. At the sentencing hearing he had the opportunity to explain his offending to the learned magistrate he did not do so. In my view the only inference reasonably available is that at least from the time that police arrived at the bridge Mr Bennier was aware that his offending was causing disruption to public transport and the significant use of police resources. The learned magistrate was correct to categorise the offending as a serious case of trespass.
The first ground of appeal is that the sentence imposed was manifestly excessive when regard is had to the circumstances of the offending and to the appellant’s personal circumstances.
A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion. In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Nembouse v The State of Western Australia [2015] WASCA 68 [14] ‑ [16] (McLure P).
The maximum penalty for the offence of trespass is imprisonment for 12 months and a fine of $12,000. There are few decisions in relation to the offence of trespass and no customary range of sentencing can be discerned: Weston v Cartmell [2015] WASC 87 [34] (Hall J). In that case a sentence of 4 months' imprisonment was regarded as appropriate. In Horner v Hunt [2013] WASC 241 a sentence of 8 months' imprisonment was held to be excessive and was reduced on appeal to a sentence of 3 months' imprisonment. In Moir v The State of Western Australia [2014] WASCA 25 a sentence of 3 months' imprisonment was held to be within a sound sentencing range. The sentence in this case exceeds the sentences held to be appropriate in each of those cases. However that does not make the sentence manifestly excessive. Mr Bennier's offending was a serious case of trespass.
Mr Bennier was aged 23 at the time of the offending. He suffered from mental illness.
A mental or psychological condition falling short of insanity may be relevant to sentencing in a number of ways. First, it may reduce the moral culpability of the offence. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the offender's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, an offender suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Fifth, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. These principles are not confined to offenders who suffer serious psychiatric illness, but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness: Krijestorac v The State of Western Australia [2010] WASCA 35 [17] ‑ [18] (Wheeler JA).
However, as Mazza J said in Gok v The State of Western Australia [2010] WASCA 185 [58] ‑ [61], while the existence of a mental impairment will almost always be relevant to the sentencing of an offender and will often result in a lower sentence, this is not always the case. The existence of a mental impairment is one of the factors which must be balanced with other factors to produce a just sentence. It is wrong to assume that the existence of a mental impairment will automatically result in a lesser sentence. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is sensibly moderated. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely. The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions. With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason.
Mr Bennier was taken to Rockingham Hospital where he was assessed and released without spending time as an inpatient. While it is clear that he does suffer from a mental illness there is no suggestion that he did not have the ability to reason at the time of the offending or at the time of sentencing. The learned magistrate needed to have regard to both personal and general deterrence. In this regard it was also relevant that there was a suggestion that Mr Bennier had not been compliant with his treatment at the time of the offending and that he had consumed drugs around that time.
While the exchange with counsel at page 6 of the transcript which I have quoted could be read as meaning that her Honour regarded personal deterrence as irrelevant that is not my conclusion. There will often be some imprecision in exchanges with counsel. As I read the sentencing remarks, particularly the reference to it being on Mr Bennier's shoulders to stay out of prison, her Honour regarded personal deterrence as relevant.
Mr Bennier entered a plea of guilty at the first reasonable opportunity. The prosecution case was overwhelming. The strength of the prosecution case is a matter relevant to the assessment of the reduction to be given under s 9AA(2) of the Sentencing Act 1995 (WA): Beins v The State of Western Australia [No 2] [2014] WASCA 54; and Abraham v The State of Western Australia [2014] WASCA 151. In my view an appropriate reduction to the head sentence for the plea of guilty under s 9AA(2) is 20%.
Having regard to the objective seriousness of the offending it was open to the learned magistrate to conclude that the only appropriate sentencing disposition was a sentence of imprisonment. By reason of that objective seriousness an appropriate head sentence would have been 11 months' imprisonment. A reduction of 20% pursuant to s 9AA of the Sentencing Act results in a period of 8.8 months. In my view a further reduction of 1.8 months for the mitigating factors of his age and mental illness was appropriate. It is my conclusion that the sentence was not manifestly excessive.
The second ground of appeal is that the learned sentencing magistrate erred by failing to reduce the head sentence imposed to give the appellant credit for Mr Bennier's plea of guilty. Section 9AA(2) of the Sentencing Act provides that if a person pleads guilty to a charge the court may reduce the head sentence in order to recognise the benefits to the State and to any victim of or witness to the offence. Section 9AA(5) provides that if a court reduces the head sentence for an offence under s 9AA(2) the court must state the fact and the extent of the reduction in open court. If the learned magistrate reduced the sentence by reason of the plea of guilty then her Honour erred in failing to state the extent of the reduction in the sentence as required by s 9AA(5). However it is not a ground of appeal that her Honour failed to comply with s 9AA(5). Even if it were to be a ground of appeal the appeal could be dismissed if no substantial injustice occurred – s 14(2) Criminal Appeals Act 2004 (WA). The ground of appeal is that her Honour did not reduce the sentence by reason of the plea.

I have reviewed her Honour's sentencing remarks to ascertain whether the learned magistrate reduced the sentence by reason of the plea of guilty. Her Honour referred to the plea twice in her sentencing remarks, once at the commencement of them and later when she provided it as one of the reasons for suspending the term of imprisonment. The conclusion I draw from her Honour's sentencing remarks as a whole is that the learned magistrate did have regard to the plea of guilty and that she did reduce the sentence by reason of it. I conclude that ground 2 has not been made out.
The appeal was commenced over 6 months outside of the time limited to appeal. The reason for the delay has been explained. There is no prejudice to the respondent caused by the delay. I grant an extension of time to appeal and I grant leave to appeal on both grounds. However, for the reasons I have expressed the appeal is dismissed.