Birch v Binnekamp
[2018] WASC 58
•23 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BIRCH -v- BINNEKAMP [2018] WASC 58
CORAM: ARCHER J
HEARD: 6 FEBRUARY 2018
DELIVERED : 23 FEBRUARY 2018
FILE NO/S: SJA 1011 of 2017
BETWEEN: CORBIN TADEUSZ BIRCH
Appellant
AND
JOHN BINNEKAMP
First RespondentMATTHEW CHRISTOPHER LEWIS
Second RespondentADAM KENNETH BATIK
Third RespondentNOAI NAM TRAN
Fourth RespondentSHAUN MAHAGAN
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R S HUSTON
File No :PE 61223 of 2015, PE 9805 of 2016, PE 10789 of 2016, PE 11436 of 2016, PE 11437 of 2016, PE 18428 of 2016
Catchwords:
Criminal law - Appeal against sentence - Mental illness and general deterrence - Manifest excess - Charge of threat to harm which involved a threat to kill
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 39Result:
Leave to extend time within which to appeal is granted
Leave to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
First Respondent : Ms K C Cook
Second Respondent : Ms K C Cook
Third Respondent : Ms K C Cook
Fourth Respondent : Ms K C Cook
Fifth Respondent : Ms K C Cook
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Third Respondent : Director of Public Prosecutions (WA)
Fourth Respondent : Director of Public Prosecutions (WA)
Fifth Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collard v Peden [2017] WASC 32
Corpus v Roseveare [2015] WASC 165
Dragon v The State of Western Australia [2008] WASCA 252
Elwin v Robinson [2012] WASC 311
Elwin v Robinson [2014] WASCA 46
Garlett v Balic [2016] WASC 172
Gok v The Queen [2010] WASCA 185
Gray v Hayter [2017] WASC 140
Harris v The State of Western Australia [2016] WASCA 34
Harrison v Hunter [2012] WASC 166
Isenhood v Green [2011] WASC 70
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Lewsam v The State of Western Australia [2016] WASCA 60
Medanovic v Barrett [2016] WASC 237
Moir v The State of Western Australia [2014] WASCA 25
Nayna v The State of Western Australia [2016] WASCA 169
Ninyette v Holmes [2015] WASC 287
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
Riseley v Gill [2015] WASC 342
Rubin v The State of Western Australia [2016] WASCA 2
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smart v WA Police [2011] WASC 99
Smith v The State of Western Australia [2010] WASCA 176
Strahan v Brennan [2014] WASC 190
Suleiman v The State of Western Australia [2017] WASCA 26
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94
The State of Western Australia v Wilson [2015] WASCA 119
Vickery v McAlinden [2017] WASC 224
Wilson v The State of Western Australia [2010] WASCA 82
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494
ARCHER J:
Introduction
1On 21 November 2016, the appellant was sentenced in relation to 16 offences in the Magistrates Court. The appellant seeks leave to appeal against the sentences imposed in relation to four of those offences.
2The appeal was filed out of time. The applications for an extension of time and for leave to appeal were ordered to be heard at the same time as the appeal.
Grounds of appeal
3The grounds of appeal are:
1.The learned sentencing Magistrate erred in law by failing to correctly take into account the mental impairment of the appellant.
2.The learned sentencing Magistrate erred in imposing a sentence of imprisonment, albeit suspended, when in all of the circumstances, including those referable to the offender personally, the seriousness of the offending was not such that only a sentence of imprisonment could be justified.
3.The learned sentencing Magistrate erred in imposing a total effective sentence that was disproportionate to the appellant's overall criminality when regard is had to all of the circumstances including those referable to the appellant personally.
4.The learned sentencing Magistrate erred in characterising the offence of threats to harm as the more serious offence of 'threats to kill'.
The offences and sentences
4Attached to these reasons as Annexure A is a table setting out the details of each of the 16 offences for which the appellant was sentenced on 21 November 2016.[1]
[1] The table was helpfully provided by counsel for the respondents.
5The details of the four offences the subject of the appeal are as follows:
Charge
Offence Date
Offence
(Max Penalty) Summary conviction penalty
Penalty imposed
PE10789/16
[first offence]
24.12.15
Obstructing public officers
s 172(2) Criminal Code
(3 years)
18 months and $18,000 fine
3 months' imprisonment suspended for 12 months
(cumulative)
PE11436/16
[second offence]
26.02.16
Obstructing public officers
s 172(2) Criminal Code
(3 years)
18 months and $18,000 fine
3 months' imprisonment suspended for 12 months
(concurrent)
PE11437/16
[third offence]
26.02.16
Common assault
s 313(1)(b) Criminal Code
18 months and $18,000 fine
3 months' imprisonment suspended for 12 months
(cumulative)
PE18428/16
[fourth offence]
23.03.16
Threats to injure, endanger or harm any person
s 338B(b) Criminal Code
(3 years)
18 months and $18,000 fine
6 months' imprisonment suspended for 12 months
(cumulative)
The facts
6The respondents' submissions accurately summarised the facts of these offences:[2]
[2] Respondents' Outline of Submissions dated 10 October 2017 [4].
PE10789/15 - Obstructing public officers
At about 8 pm on 24 December 2015, the appellant was a passenger on a train approaching Cannington Train Station. He was asked to produce a ticket by transit officers conducting a routine ticket inspection. He did not provide one and said 'I don't have a fucking ticket'. He shouted at the officers: 'I'm a psychopath. I will smash you' whilst grinding his teeth and making loud growling noises at them. There were children present and the appellant was warned to stop or he would be arrested. He yelled at them 'you will both end up on the ground'. The officers placed him under arrest and attempted to effect the arrest. The appellant resisted heavily against them trying to restrain him and broke free with one arm, held onto a nearby pole and wrapped his legs around the pole. He was removed from the train and placed on the platform ground where he continued to resist. Four officers were required to safely restrain the appellant.
PE11436/16 and PE11437/16: Obstructing public officers and common assault
At around 1 pm on 26 February 2016, the appellant was a passenger in a grey Peugeot, and was observed acting in an aggressive and agitated manner by passing motorists. His behaviour frightened the driver of the vehicle, who drove to Kensington Police Station.
The victim, a police officer travelling in an unmarked police vehicle on George Street, Kensington, noticed the grey Peugeot travelling behind him, and the appellant hanging out of the window, yelling abuse and shouting at pedestrians. The victim turned into the driveway of the Kensington Police Station and parked. The grey Peugeot followed and parked behind the victim's car. The victim got out of his car and identified himself as a police officer. The appellant got out of the Peugeot and aggressively approached the victim with a clenched fist screaming 'You better get back in the car, you c-'.
The appellant charged at the victim in a fighting posture. The victim subdued the appellant by using hand to hand techniques and arrested him, wrestling him into the front doors of the police station. The appellant resisted by pushing and waving his arms and attempting to kick out at the victim.
PE18428/16 - Threat to harm, endanger or injure
At about 7.50am on 23 March 2016 the appellant was riding his bike on Gloucester Street in Victoria Park. He pedalled directly toward the female victim who was alone, jogging with her dogs. He pointed at her and said 'I've been looking for you everywhere, you effing bitch'. He got off his bike and walked up to the victim, saying 'You know what you have done'. The victim retreated backwards and was pursued by the appellant, with clenched fists, until the appellant was within 40 centimetres proximity to the victim.
The victim said 'You have the wrong girl; I don't know who you are'. The appellant repeatedly said 'You know what you've done', and then said 'You effing bitch. I'm going to kill you'. The victim screamed and attracted the attention of a passing jogger who intervened. The appellant got on his bicycle and began to ride away, saying: 'Next time I will find you. I will kill you'.
Sentences
7The sentences under appeal are recorded in the table set out above. The total term of imprisonment was 12 months, suspended for 12 months.
Application for an extension of time to commence the appeal
8The last day for filing the appeal notice was 19 December 2016. The appeal notice was filed on 21 February 2017. The appellant therefore requires an extension of time.
9The delay has been explained in an affidavit filed by the appellant's counsel.
10Counsel for the respondents did not submit that the delay was unreasonable or inadequately explained and quite properly did not oppose an extension of time being granted.
11In the circumstances, I am satisfied that the delay is adequately explained and that an extension of time should be granted.
Appeals from magistrates' decisions
12Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
13Leave to appeal is required for each ground of appeal.[3]
[3] Criminal Appeals Act 2004 (WA), s 9(1).
14The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[4] This means that the ground is required to have a real, rational and logical prospect of succeeding.[5]
[4] Criminal Appeals Act, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
15When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[6] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[7]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[6] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[7] Strahan v Brennan [90].
Principles relating to sentencing appeals
16Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[8] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[9]
[8] Ninyette v Holmes [2015] WASC 287 [56.3].
[9] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65].
Where manifest excess is alleged
17A ground of appeal that alleges a sentence was manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[10]
[10] The State of Western Australia v Wilson [2015] WASCA 119 [21].
18In determining whether a sentence is manifestly excessive, the sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.[11]
[11] The State of Western Australia v Wilson [20].
19In relation to sentences imposed in other appellate cases for similar offences, these provide a yardstick against which to compare the sentence under appeal. However, the mere fact that a sentence is outside the range of sentences customarily imposed does not necessarily establish that the exercise of the sentencing discretion miscarried. Other cases do not fix the range of a sound exercise of sentencing discretion in a particular case.[12]
[12] The State of Western Australia v Wilson [23].
Where it is alleged that the wrong type of sentence was imposed
20A sentence may be manifestly excessive because the wrong type of sentence has been imposed.[13] A ground of appeal that alleges that the wrong type of sentence has been imposed can only succeed if it is established that the type of sentence imposed was not reasonably open to the sentencing magistrate.[14]
[13] Nayna vThe State of Western Australia [2016] WASCA 169 [36].
[14] Rubin v The State of Western Australia [2016] WASCA 2 [49].
21Section 39(2) of the Sentencing Act 1995 (WA) lists the sentencing options. Under s 39(3), a court must not use a sentencing option in subsection (2) unless satisfied that it is not appropriate to use any of the options listed before that option.
22Therefore, to establish that the type of sentence imposed was not reasonably open, the appellant must establish that it was not open to the magistrate to be positively satisfied that a lesser option was not appropriate.
Power to dismiss if no miscarriage of justice
23Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[15] An immaterial or inconsequential error of law or fact will generally not give rise to a substantial miscarriage of justice. Generally, where an error could not have affected the outcome, the appellate court can conclude that there has been no substantial miscarriage of justice.[16]
[15] Criminal Appeals Act, s 14(2).
[16] Ninyette v Holmes [65], WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [239] ‑ [241].
24If the court concludes that, if it were to exercise the power to resentence the appellant, it would not have imposed any different sentences or orders, the court may dismiss the appeal on the ground that no substantial miscarriage of justice has occurred.[17]
[17] The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 [90].
Grounds of appeal
Ground 1
25Ground 1 alleges that the magistrate 'erred in law by failing to correctly take into account the mental impairment of the appellant'. The appellant's submissions made it clear that the alleged error was that the magistrate accepted, to an extent, that the appellant was not an appropriate vehicle for general deterrence, but then proceeded on the basis that the need for general deterrence was not moderated at all.
26It is well‑settled that the existence of a mental illness (that has not been self‑induced) may reduce or, in an extreme case, eliminate general deterrence as a sentencing consideration.[18]
[18] Smith v The State of Western Australia [2010] WASCA 176 [73]. Smith was recently cited with approval in Suleiman v The State of Western Australia[2017] WASCA 26 [59]. See also Gok v The Queen [2010] WASCA 185 [54] and [59].
27It is not in dispute that the appellant suffers from mental illness. The issue in dispute is whether the magistrate made the error alleged.
28The magistrate said (emphasis added):[19]
Ms Ajduk [counsel for Mr Birch] has indicated that because of your mental health challenges, you're not a suitable candidate or a person in respect of which general deterrence would be a feature of the sentencing. To some extent, I accept that submission except to the extent that in terms sending a clear message to the community that offending of this nature will be dealt with in an effective manner and in a manner that reflects how serious the behaviour is is a part of the sentencing today.
[19] Transcript 21 November 2016 (Sentencing Transcript) page 25.
29The appellant submits this demonstrated error because general deterrence is the need to send a message to the community that offending will be dealt with in an effective manner.
30The respondents submit the magistrate did not accept that the appellant's mental illness was such that general deterrence had no application in the sentencing exercise. Rather, the respondents submit the magistrate accepted, properly, that the appellant's mental illness reduced the extent to which general deterrence would otherwise have resulted in a more severe sentence.
31I consider that the ground of appeal should be dismissed, for the following reasons.
32First, I do not accept that the magistrate was talking about general deterrence in the second sentence of the extracted reasons.
33General deterrence is more usually described as the need to ensure that the penalty is sufficient to deter other people from committing similar crimes.
34Further, shortly before the extracted reasons, the magistrate referred to the need for specific deterrence, in terms of the need to 'send [the appellant] a clear message'. He then referred to the need to maintain community confidence in the administration of justice.[20] The extracted reasons followed directly afterwards. In the second sentence of the extracted reasons, the magistrate may have been referring to the need to maintain community confidence in the administration of justice. Alternatively, he may have been referring to the sentencing goals of denunciation or punishment.
[20] Sentencing Transcript pages 24 ‑ 25.
35Of course, depending on the circumstances, mental illness may affect the weight to be given to various sentencing factors, beyond just general deterrence. However, if the magistrate was referring to community confidence, denunciation or punishment in the second sentence of the extracted reasons, he did not make the error alleged.
36Second, even if the magistrate was talking about general deterrence in the second sentence of the extracted reasons, I do not accept that the magistrate made the error alleged.
37The appellant's submissions essentially allege that the magistrate intended to moderate the factor of general deterrence but failed to do so because he did not understand the concept of general deterrence. It is highly unlikely that an experienced magistrate did not understand what general deterrence means.
38Further, counsel for the respondents pointed out that the magistrate was talking directly to the appellant and was obviously trying to make his reasons comprehensible to him.
39I accept that the extracted reasons are imperfect. However, it is not appropriate to infer error from infelicity of language. In my view, it is more likely that the magistrate simply misspoke in this part of his reasons.
40It is for the appellant to establish the error alleged. I do not accept that the extracted reasons show that the magistrate intended to moderate the factor of general deterrence but then failed to do so.
41Accordingly, I would grant leave on this ground, but would dismiss it.
Ground 2
42Ground 2 alleges that the magistrate 'erred in imposing a sentence of imprisonment, albeit suspended, when in all of the circumstances, including those referable to the offender personally, the seriousness of the offending was not such that only a sentence of imprisonment could be justified'.
43As noted earlier, the appellant must show that it was not reasonably open to the magistrate to be positively satisfied that a lesser option was not appropriate. The only options listed below suspended imprisonment in s 39(2) of the Sentencing Act are conditional suspended imprisonment (although this is not available in the summary jurisdiction) and immediate imprisonment. Every other option listed in s 39(2) would be a lesser option to suspended imprisonment.
44In evaluating this ground, it is necessary to examine each sentence having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.
Maximum penalty
45Three of the four offences carried a maximum penalty of 3 years' imprisonment, with a summary conviction penalty of 18 months and a fine of $18,000. The common assault, triable only summarily, carried a maximum penalty of 18 months and a fine of $18,000.
Comparable cases
46As was pointed out by counsel for the respondents, Ms Cook, it is difficult to find broadly comparable cases for the offence of obstructing public officers. The cases involve widely varying circumstances and often involve total effective sentences imposed for a range of different offences. Penalties imposed for the offence have ranged from fines to sentences of immediate imprisonment.[21]
[21] See, for example, Vickery v McAlinden [2017] WASC 224; Gray v Hayter [2017] WASC 140; Collard v Peden [2017] WASC 32; Lewsam v The State of Western Australia [2016] WASCA 60; Riseley v Gill [2015] WASC 342; Corpus v Roseveare [2015] WASC 165; Elwin v Robinson [2014] WASCA 46; Elwin v Robinson [2012] WASC 311 (appeals against conviction only, no dispute of sentence); Moir v The State of Western Australia [2014] WASCA 25.
47It is equally difficult to find broadly comparable cases for the offences of common assault. In Medanovic v Barrett,[22] Tottle J noted the remarks of Martin CJ in Harrison v Hunter,[23] that the cases do not reveal an established range of sentences customarily imposed for common assault because of the enormous variety of circumstances in which the offence can be, and is, committed. Tottle J then set out the facts of four cases in which the sentences ranged from no sentence being imposed (due to time spent in custody), to a small fine, to immediate imprisonment.[24] I have had regard to those cases, but the differences in the circumstances make them of little value.
[22] Medanovic v Barrett [2016] WASC 237 [20].
[23] Harrison v Hunter [2012] WASC 166 [26]. Tottle J also noted that the remarks of Martin CJ were recently restated by Beech J in Garlett v Balic [2016] WASC 172 [48].
[24] Medanovic v Barrett [21] ‑ [25].
48In relation to offences of threat to harm, the respondents' counsel drew my attention to three appellate cases,[25] but did not suggest they were useful comparators. Again, the factual scenarios are so varied, and the appellate cases so limited, that there is little utility in considering other cases.
[25] Isenhood v Green [2011] WASC 70; Smart v WA Police [2011] WASC 99; Collard v Peden.
Gravity of the offending
49The facts of each offence are set out above. Each of the offences had a serious component.
50The first offence was a serious example of obstructing public officers. When offences of this type are committed on a train, the other passengers are unable to remove themselves from the scene. Offending of this type can deter members of the public from using public transport. In this case, the other passengers included children. Further, the appellant's behaviour was persistent, aggressive and threatening.
51The second and third offences followed after the victim identified himself as a police officer. The appellant aggressively approached the victim with a clenched fist, screaming abuse. He charged at the victim in a fighting stance. It was the officer's management of the situation that brought the offending to an end.
52The fourth offence was particularly serious. The appellant rode his bicycle directly toward the female victim who was alone. Using abusive language, he said he had been looking for her. He got off his bike and walked towards the victim. She retreated, but the appellant pursued her, with clenched fists, until he was within 40 cm of her. He threatened to hurt her. The offence was brought to a halt when a passing jogger responded to the victim's scream and intervened.
53These offences must also be viewed against the pattern of offending revealed by the other 12 offences for which the appellant was sentenced at the same time. While the penalty for each offence must be for that offence alone, the other offences are relevant to the assessment of the need for specific deterrence and the need to protect the community. The other offences indicate that the four offences the subject of the appeal were not isolated aberrations.
54In the offence committed on 20 November 2015, the appellant had inadvertently given foreign currency to an IGA cashier. When asked for Australian money, he pulled a small wooden baseball bat from his jeans. He brandished the bat and said, 'You want a go, come on, eff you' to the staff. Staff used a metal bar to protect themselves, hitting the appellant's hand, causing him to drop the bat.
55The disorderly behaviour offences involved the appellant approaching women and behaving in an intimidating way. Some involved the appellant circling around the women on his bike, and chasing after them on his bike when they ran. In one offence, he chased two women for three blocks. The magistrate said the offences would have been highly traumatic for the victims. Understandably, the appellant's counsel did not seek to challenge this.[26]
[26] Sentencing Transcript page 19.
Personal circumstances
56The appellant pleaded guilty to each offence at the earliest reasonable opportunity. He was given the maximum discount of 25%.
57The appellant was 27 years old at the time of sentencing.
58He left school in year 11. He completed a four‑year painting apprenticeship with support.[27]
[27] Sentencing Transcript page 15.
59The appellant is mentally ill. He has been diagnosed with 'schizoaffective disorder with coexistent mild intellectual disability and harmful use of drugs'.[28] In addition to his schizoaffective disorder, he is said to have 'mental and behavioural disorders due to psychoactive substance use - cannabis and methylamphetamine harmful use, exacerbation of psychosis'.[29]
[28] Psychiatric report 10 November 2016 (Psychiatric Report) page 2.
[29] Psychiatric Report page 5.
60The appellant started using cannabis and amphetamines when he was 17 years old.[30] His counsel at the sentencing hearing said that the appellant attended a rehabilitation program for three months in about 2014 and has done 'a little bit' of counselling.[31] In the Psychiatric Report, it was said that he had attended two rehabilitation programs, but had discharged himself early both times.[32] Clearly, he has been unable to abstain from using drugs.
[30] Sentencing Transcript page 15. But see the Psychiatric Report page 4.
[31] Sentencing Transcript page 15.
[32] Psychiatric Report page 4.
61After his arrest for the 15th of the offences, the appellant was in custody on a hospital order for nearly two months. He was then held as an involuntary patient at Bentley Hospital until 15 June 2016. Two months later, he committed the last of the 16 offences - by driving after consuming methylamphetamine.[33] Around the same time, he was found in possession of cannabis.[34]
[33] The actual offence was driving while methylamphetamine was present in his oral fluid, contrary to s 64AC of the Road Traffic Act 1974 (WA).
[34] This offence was dealt with prior to the sentencing on 21 November 2016.
62The appellant has a criminal record. His prior offences are not the most serious. Prior to the sentencing on 21 November 2016, he had never received a term of imprisonment, suspended or immediate, and had never been placed on an intensive supervision order. However, his record includes numerous offences that indicate an unwillingness to comply with orders and lawful requests. The appellant has convictions for breaching community‑based orders and a protective bail condition. The author of the pre‑sentence report dated 15 November 2016 (Pre‑Sentence Report) noted that the appellant had breached all three of those orders by either re‑offending or omission. It was further noted that his most recent conditional bail was cancelled due to re‑offending and positive urinalysis results to cannabis, amphetamine and methamphetamine.[35] The appellant also has six convictions for breaching violence restraining orders and a conviction for breaching a bail undertaking. The author of the Pre‑Sentence Report considered that the appellant was unsuitable for a community‑based disposition.[36]
[35] Pre‑Sentence Report page 2.
[36] Pre‑Sentence Report page 4.
63The appellant's counsel in the sentencing proceedings conceded that the 16 offences showed an escalation in his offending behaviour.[37]
[37] Sentencing Transcript page 14.
64The magistrate said that the appellant's record indicated:[38]
[T]hat you haven't gained from these sentencing outcomes previously. And so for that reason the sentencing today may need to and does, in fact, mean that a different approach needs to be taken to the sentencing. It's not more serious. It just means that the court needs to implement strategies to address your offending that assists you in not offending but also to send you a clear message - a very clear message - that you've got to stop this unlawful behaviour.
[38] Sentencing Transcript page 24.
65The magistrate also said that previous sentencing dispositions had failed to persuade the appellant to stop his behaviour and to engage more wholeheartedly with the medical help that was available to him.[39] Counsel for the appellant in the appeal, Ms Sinton, pointed out that the appellant was not diagnosed or treated for his schizoaffective disorder until after he had committed the first 15 offences. This does appear to be the case. However, there was evidence before the magistrate suggesting that the appellant had failed to regularly take medication prescribed for his diagnosed ADHD. There was also evidence of the appellant discharging himself early from the two drug rehabilitation programs.[40] Finally, despite having been diagnosed and treated for his schizoaffective disorder after the 15th offence, the appellant committed the 16th offence, involving methylamphetamine.
[39] Sentencing Transcript page 26.
[40] Psychiatric Report pages 2 and 4.
66The magistrate made the following unchallenged findings about the appellant's mental illness:
1.there was 'clearly a mixture of [the appellant] being unwell and made worse by the fact that [he had] made a poor decision to consume unlawful substances'[41] and
2.the appellant suffered from impaired mental judgment as a result of his underlying mental illness.[42]
[41] Sentencing Transcript page 25.
[42] Sentencing Transcript page 26.
67It is apparent from these findings that it was open to the magistrate to find that the appellant's mental illness contributed causally to the offending, which would reduce his moral culpability.
68Further, the respondents accept that the need for general deterrence was moderated in the appellant's case.
69However, the mitigating value of a mental illness may be offset or limited by other factors, such as a risk of re‑offending, a lack of insight into the mental illness and entrenched drug use.[43]
[43] Harris v The State of Western Australia [2016] WASCA 34 [28]. See also KWLD v The State of Western Australia [No 4] [2013] WASCA 185 [127] and Suleiman [62].
70In some circumstances, the effect of a mental health issue may be aggravating. For example, the effect may be aggravating if the mental illness is intractable and it leads to a conclusion that the offender is likely to offend again.[44]
[44] Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [50]. See also Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 [41].
71In my view, on the evidence before the magistrate, the mitigating value of the appellant's mental illness was limited. The Psychiatric Report said that the appellant showed little insight into his mental illness.[45] This was accepted by his counsel in the sentencing proceedings.[46] He has a long‑standing drug problem.[47] His criminal history and personal history do not permit a conclusion that there is a low risk of re‑offending. Given the nature of the offences, the need for the protection of the community is a significant sentencing factor.
[45] Psychiatric Report page 5.
[46] Sentencing Transcript page 22.
[47] Sentencing Transcript page 15.
72Finally, counsel for the appellant submitted that the magistrate accepted that the appellant was remorseful. In this regard, counsel relied on the magistrate's response to an interjection by the appellant. The magistrate was describing to the appellant how terrifying the disorderly conduct offences would have been to the victims, and the appellant said 'I know. I feel real - I do feel bad for (indistinct)'. The magistrate replied 'Well, I will accept that' and then went back to describing the impact on the victims.[48]
[48] Sentencing Transcript page 25.
73I am willing to accept, despite the way in which this occurred, that the magistrate did accept the appellant was remorseful. However, that finding was inconsistent with the comments in the Psychiatric Report and the Pre‑Sentence Report.[49]
[49] Psychiatric Report page 2; Pre‑Sentence Report page 2.
Evaluation
74The magistrate viewed the offences as, relatively speaking, serious. The magistrate characterised the fourth offence as particularly serious.
75The magistrate took the view that the appellant's record suggested a need for a different approach to sentencing.
76It was open to the magistrate to take these views in the circumstances.
77The magistrate was entitled to have regard to all of the offending (that is, all 16 offences) when determining the appropriate disposition for any one of the offences.
78The magistrate gave significant weight to the appellant's mental illness, but rightly noted the contribution of illicit drug use to the offending.
79The magistrate had regard to the other personal circumstances of the appellant, and gave him the maximum credit for his pleas of guilty.
80It was reasonably open to the magistrate to take a view of the circumstances that would lead to a conclusion that imprisonment was the only appropriate disposition for these four offences. It was reasonably open to the magistrate to be positively satisfied that a lesser option than suspended imprisonment was not appropriate. It was not unreasonable or unjust to impose imprisonment.
81I grant leave to appeal on this ground, but dismiss this ground.
Ground 3
82Ground 3 alleges that the magistrate 'erred in imposing a total effective sentence that was disproportionate to the appellant's overall criminality when regard is had to all of the circumstances including those referable to the appellant personally'.
83For the same reasons as in relation to ground 2, while I grant leave to appeal on this ground, I dismiss this ground. A total term of 12 months suspended imprisonment is not unreasonable or unjust. In my view, the fourth offence on its own would have justified this disposition in all of the circumstances.
Ground 4
84Ground 4 alleges the magistrate 'erred in characterising the offence of threats to harm as the more serious offence of "threats to kill" '.
85In relation to this offence, the magistrate said:[50]
[T]he most serious matter is the threat to kill on 23 March 2016 - after the other behaviour on that day which was equally unacceptable except for the threats to kill made that day in the circumstances that I've accepted and which you don't take exception to. It would have been a harrowing and terrifying ordeal for that woman and that's the head sentence, the threats to injure, endanger or harm that person. That's a term of six months imprisonment.
[50] Sentencing Transcript page 28.
86Although the accepted facts of the fourth offence included a threat to kill, the appellant was charged and convicted of a threat to harm.
87Threat to kill is an offence that carries 7 years' imprisonment, pursuant to s 338B(a) of the Criminal Code. Threat to harm is an offence which carries 3 years' imprisonment, with a summary conviction penalty of 18 months and $18,000, pursuant to s 338B(b) of the Criminal Code.
88In Langdon v Kelemete‑Leoli‑McLean,[51] the Court of Appeal considered an appeal against a sentence imposed for an assault occasioning bodily harm. Although the victim had actually suffered a permanent loss of his sense of smell, the offender was not charged with grievous bodily harm. The sentencing magistrate was aware that he was not sentencing the offender for grievous bodily harm, as he had raised whether he had jurisdiction to deal with the matter during the hearing.[52] Mazza JA said (citations omitted):[53]
In issue are two important general principles of sentencing, the first being that an offender cannot be sentenced for an offence of which he or she has not been charged and convicted. The second is that a sentencer is bound to take into account all the circumstances which are relevant to the commission of the charged offences. Where these principles conflict, the latter principle must give way to the former. This is because it would be unfair and unjust to sentence an offender for an offence with which he or she has not been charged or convicted …
Exactly where the line is drawn between a permissible consideration of the circumstances surrounding the commission of the offence and punishment for an offence which is not charged is not always easy to decide. In the end, it is a matter of degree to be decided on the facts of each case …
…The magistrate repeatedly referred to the serious nature of the injury sustained by Mr Noori. In doing so, the magistrate was not merely reciting the circumstances of the offending. He was giving emphasis to, and was taking account of, the permanent loss of Mr Noori's olfactory senses. He plainly regarded it as an aggravating factor. In my view, the magistrate sentenced the appellant on the basis that he had caused grievous bodily harm. This is one of those cases where the line, between the permissible consideration of the circumstances surrounding the commission of the offence and punishment for an offence for which the offender has not been charged and convicted, has been crossed.
[51] Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26.
[52] Langdon [52].
[53] Langdon [94] ‑ [96].
89I have not found this issue easy to decide in this case. The magistrate twice referred to the threats to kill and did so in the context of distinguishing this offence from other offending on the same day. However, the other two offences committed on that day did not involve any threats at all.[54] Further, the magistrate clearly understood that he was sentencing for the offence of threat to harm and not threat to kill. In addition, the offence was, irrespective of whether the threat was to harm or to kill, properly characterised as one that would have been 'a harrowing and terrifying ordeal'. I do not consider that the magistrate treated the fact that the threat was to kill as an aggravating factor. I am not satisfied that the line was crossed in this case.
[54] Sentencing Transcript pages 9 and 11 ‑ 12 (offences on 23 March 2016).
90However, if I am wrong about that, I would be required to exercise the sentencing discretion afresh in relation to this offence.
If I am wrong, what would be the appropriate penalty?
91In my view, the appropriate penalty for the offence of threat to harm would be a term of imprisonment for 12 months, suspended for 12 months. This is greater than the penalty imposed by the magistrate. Ordinarily, if a court intends to impose a more severe sentence on an appellant, it is necessary to give the appellant notice of the contemplated penalty, and give the appellant the opportunity to withdraw his or her appeal.[55] This may not be necessary if the net result is not more severe than the net result imposed at first instance.[56]
[55] Dragon v The State of Western Australia [2008] WASCA 252 [70]. This case was under pt 3 of the Criminal Appeals Act, which gives the Court of Appeal a specific power to impose a sentence that is more severe. However, I consider that the court has the power under pt 2 of the Criminal Appeals Act, in s 14(1)(c) and (d), to impose a sentence that is more severe.
[56] Dragon [70].
92It is also necessary, whenever an appellant is re‑sentenced, to give the appellant the opportunity to draw to the court's attention any relevant matter that has occurred since the time of the original sentence.[57] However, for present purposes, I consider it is appropriate to set out my reasons for reaching my view as to the appropriate penalty on the information currently available to me.
[57] See s 14(5) of the Criminal Appeals Act.
93The relevant facts and personal circumstances, including mitigating factors, have been set out earlier in these reasons.
94I would allow the appellant the maximum discount of 25% for his pleas of guilty.
95I accept that, as a result of the appellant's mental illness, the need for general deterrence is moderated to a degree. However, I am not satisfied on the balance of probabilities that it is moderated to a significant extent.
96I accept that his moral culpability is reduced because his mental illness contributed causally to the offences. However, I am not satisfied on the balance of probabilities that the reduction is significant.
97The appellant's drug use was a contributing factor in his offending. I am also not satisfied that the appellant has done as much as he could reasonably be expected to do to address his mental illness, even given the fact that the appellant was only diagnosed with a schizoaffective disorder after he committed the first 15 offences. Further, I am not satisfied that the appellant has done as much as he could reasonably be expected to do to address his drug problem.
98In my view, the mitigating value of the appellant's mental illness is limited in light of his lack of insight into his mental illness and his entrenched drug use. Further, it is offset to a large degree by the need to protect the community.
99The appellant is not entitled to leniency on account of his age or criminal history.
100His criminal record suggests that non‑custodial dispositions have failed to deter him. His offending, while affected by his mental illness, demonstrates a continuing attitude of disobedience to the law.
101The victim of this offence was a woman on her own. The appellant walked up to her. When she retreated, he pursued her with clenched fists, getting to within 40 cm of her. He repeatedly threatened to seriously harm her. The appellant desisted only after a passer‑by intervened. Even in the absence of a victim impact statement, I have no hesitation in finding beyond reasonable doubt that the victim would have been frightened.
102The offence must also be viewed against the pattern of offending revealed by the other 15 offences for which the appellant was sentenced on that day. The pattern of offending reveals that this offence was not an aberration, and it demonstrates the need to protect the community.
103I am satisfied that imprisonment is the only appropriate disposition. In my view, the appropriate term is 12 months. I would reduce the length of that term to 10 months to take into account the appellant's time in custody.
104I am not satisfied it is not appropriate to suspend that term and therefore would suspend it.
105I consider that the term should be suspended for 12 months. In my view, it is appropriate to impose a substantial period of suspension to allow sufficient time for the appellant's mental health and drug issues to be addressed, at least to an extent, and for his compliance and attitude to be monitored.
106However, to ensure that the aggregate of all of the sentences did not infringe the totality principle, I would reduce this sentence to 6 months' imprisonment, suspended for 12 months. This would mean the aggregate of this term and the terms of imprisonment imposed by the magistrate would be 12 months' imprisonment, suspended for 12 months. This would be proportionate to the appellant's overall criminality viewed in its entirety and having regard to the circumstances, including his personal circumstances. As this would be the same outcome as that reached by the magistrate, I would dismiss this appeal on the basis that no substantial miscarriage of justice has occurred.
Conclusion
107The application for leave to extend time within which to appeal is granted.
108I grant leave to appeal in relation to each ground but dismiss the appeal.
ANNEXURE A
TABLE OF ALL OFFENCES AND PENALTIES IMPOSED 21 NOVEMBER 2016
| Charge | Date | Offence | (Max Penalty) Summary conviction penalty | Penalty imposed |
| PE61223/15 | 20.11.15 | Carried (possessed) an article w/intent to cause fear S 8(1)(b) Weapons Act | 2 years and $24,000 fine | 12 months' ISO (concurrent) |
| PE10787/16 | 24.12.15 | Disorderly behaviour 74A(2)(a) Criminal Code | $6000 fine | $250 fine |
| PE10786/16 | 24.12.15 | Fail to produce a valid ticket r 6(1)(a) PTA Regulations | Penalty: $500 fine Modified: $100 fine | $50 fine |
| PE10789/16 | 24.12.15 | Obstructing public officers S 172(2) Criminal Code | (3 years) 18 months and $18,000 fine | 3 months' imprisonment suspended for 12 months (cumulative) |
| PE9805/16 | 20.02.16 | Carried (possessed) an article w/intent to cause fear | 2 years and $24,000 fine | 12 months' ISO (concurrent) |
| PE11436/16 | 26.02.16 | Obstructing public officers | (3 years) 18 months and $18,000 fine | 3 months' imprisonment suspended for 12 months (concurrent) |
| PE11437/16 | 26.02.16 | Common assault S 313(1)(b) Criminal Code | 18 months and $18,000 fine | 3 months' imprisonment suspended for 12 months (cumulative) |
| PE13480/16 | 26.02.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE21214/16 | 19.03.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE21215/16 | 20.03.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE18428/16 | 23.03.16 | Threats to injure, endanger or harm any person S 338B(b) Criminal Code | (3 years) 18 months and $18,000 fine | 6 months' imprisonment suspended for 12 months (cumulative) |
| PE18429/16 | 23.03.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE21216/16 | 23.03.16 | Obstruct free passage on a path or carriageway r 201(1) Road Traffic Code | Penalty: $3,200 Modified: $100 | $250 |
| PE21217/16 | 28.03.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE21218/16 | 28.03.16 | Disorderly behaviour | $6000 fine | $250 fine |
| PE54328/16 | 23.08.16 | Driving with prescribed illicit drug S 64AC(1) Road Traffic Act | First offence: $500 fine | $300 |
| Total effective sentence: | 12 months' imprisonment, suspended for 12 months; 12 month Intensive Supervision Order; $2,300 fines | |||
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