Bourdon v McAlpine
[2016] WASC 200
•1 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BOURDON -v- McALPINE [2016] WASC 200
CORAM: LE MIERE J
HEARD: 31 MAY 2016
DELIVERED : 1 JULY 2016
FILE NO/S: SJA 1032 of 2016
BETWEEN: KEVIN MICHAEL BOURDON
Appellant
AND
DAVID LEA McALPINE
Respondent
FILE NO/S :SJA 1023 of 2016
BETWEEN :KEVIN MICHAEL BOURDON
Appellant
AND
DAVID LEA McALPINE
BENJAMIN ANTHONY LEAF
BENJAMIN RUSSELL NOYE
LUKE ANDREW GLASSON
Respondents
ON APPEAL FROM:
For File No : SJA 1032 of 2016
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T R WATT & MAGISTRATE K M TAVENER
File No :NG 923 of 2014, PE 28842 of 2015, PE 6688 of 2016, PE 14083 of 2016
For File No : SJA 1023 of 2016
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T R WATT & MAGISTRATE K M TAVENER
File No :NG 923 of 2014, PE 28842 of 2015, PE 6688 of 2016, PE 14083 of 2016
Catchwords:
Appeal against sentence - Criminal damage - Leave to appeal out of time - Where there would be miscarriage of justice if appeal not allowed - Where offending not such that only imprisonment is warranted - Suspended sentence - Manifestly excessive - Time spent in custody - Offender resentenced to pay nominal fine - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 10, s 41
Criminal Code (WA), s 444
Sentencing Act 1995 (WA), s 6, s 46, s 76
Result:
Leave to appeal granted
Appeal allowed
Offender resentenced
Category: B
Representation:
SJA 1032 of 2016
Counsel:
Appellant: Ms S H King
Respondent: Ms S E Wisbey
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
SJA 1023 of 2016
Counsel:
Appellant: Ms S H King
Respondents : Ms S E Wisbey
Solicitors:
Appellant: Legal Aid (WA)
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Corpus v Roseveare [2015] WASC 165
Lancaster v The Queen [1989] WAR 83
LE MIERE J:
Summary
On 3 December 2014 the appellant was sentenced for an offence of committing criminal damage on 16 July 2014. The appellant was sentenced to 7 months imprisonment suspended for 12 months. On 3 December 2014, the appellant was also sentenced to a 12 month community based order for an offence of disorderly conduct, seven stealing offences and the offence of disobeying a summons. Also on the same day the appellant was sentenced to a 12 month intensive supervision order for four offences of possessing drug paraphernalia and the offence of possession of stolen or unlawfully obtained property.
During the term of the suspended imprisonment order, the appellant committed two offences of stealing, an offence of giving false personal details to police and the offence of breach of bail from 4 June 2015. On 14 March 2016 the appellant was sentenced in relation to those offences together with further offences that occurred after the suspended imprisonment order. The breach of bail offence triggered the suspended imprisonment order. The appellant was ordered to serve four months of his suspended imprisonment order to begin on 14 March 2016. The offence of breach of bail which occurred on 4 June 2015 activated the suspended imprisonment order. For that offence the appellant was sentenced to 1 month imprisonment cumulatively on the four months activated suspended imprisonment order.
The appellant was released to mandatory short term parole on 28 May 2016 which is due to expire on 13 August 2016. The parole order relates to the 5 month term of imprisonment imposed by the magistrate on 14 March 2016 of which the appellant has served two and a half months in prison.
The appellant now seeks leave to appeal against the suspended imprisonment sentence (SJA 1032 of 2016) and against the activation of the suspended imprisonment order (SJA 1023 of 2016).
The criminal damage offence
The facts of the offence are as follows. The appellant was at the hospital in Narrogin. He walked to the secure internal entrance/exit door for the emergency department, knowing it would be locked. He pulled on the door forcibly, until the lock broke and the door opened. He then left the hospital. He was interviewed by police later. He said that he did this because he was angry at the fact that the doctor referred to him as a drug addict and would not give him strong pain killers like paracetamol. He said he knew his behaviour was wrong and he should not have acted in the way in which he did. There is no evidence of the value of the damage caused although a request for a reparation order in the amount of $1,233.10 payable to the Department of Health was annotated on the statement of material facts.
SJA 1032 of 2016 - appeal against suspended imprisonment order
The appeal notice was filed on 21 April 2016, over 16 months out of time. The court may extend the time for commencing an appeal: Criminal Appeals Act 2004 (WA) s 10(3). Where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Lancaster v The Queen [1989] WAR 83, 85 Malcolm CJ. There are no exceptional circumstances in the present case. Hence the question of an extension of time depends on the court being persuaded that there would be a miscarriage of justice if an extension is not granted. That requires the court to consider whether a sentence of imprisonment was not appropriate and hence the suspended imprisonment sentence should not have been imposed.
The sole ground of appeal in SJA 1032 of 2016 is that the imposition of a suspended prison sentence was manifestly excessive. Suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances: Sentencing Act 1995 (WA) s 76(2). A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: Sentencing Act s 6(4).
The appellant says that the suspended imprisonment sentence is manifestly excessive because a term of imprisonment is not appropriate. A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentences customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
The maximum penalty for the offence of criminal damage pursuant to s 444(1) of the Criminal Code is 3 years' imprisonment and a fine of $36,000 when dealt with summarily and 10 years' imprisonment upon indictment.
In Corpus v Roseveare [2015] WASC 165 [50], Hall J said that there is no established range of sentences for offences of criminal damage. This is because the circumstances in which such an offence can be committed can vary markedly. The factors that may be relevant in assessing the seriousness of such an offence include the degree of deliberation involved and the extent and value of the damage caused.
The appellant submits, and I accept, that the level of seriousness of the offence is at the lower end of offending for offences of this type. The damage done was a broken lock on a hospital door by a mentally unwell man who felt aggrieved at his lack of medical treatment. There was no premeditation, the actions resulting in the damage were not of a particularly violent nature and the damage done was confined to a lock on the door. No one was endangered by the damage that was done. Nevertheless, the value of the damage was not trivial.
The appellant was 34 years of age at the time of sentencing. The appellant has a long history of minor offences mostly consisting of stealing offences, disorderly offences and breaches of bail but has no prior convictions for criminal damage.
A psychiatric report disclosed that the appellant suffers with mental illness. He has a history of chronic psychotic episodes. He has been diagnosed with schizophrenia in the past but the possibility exists that what he suffers with is actually chronic drug‑induced psychosis, with persistent psychotic symptoms due to failing to achieve consistent abstinence from illicit substances. His psychotic symptoms are intertwined in a complex manner with chronic substance abuse, personality disorder and social dysfunction. The psychiatrist opines that the appellant's personality disorder and substance abuse are the primary factors in his offending. These factors lead to worsening of his mental illness and social and interpersonal dysfunction on a long term basis. It is possible that he may have been experiencing psychotic symptoms at the time of offending but his offending behaviour is driven by the effect of voluntarily substance abuse and the underlying borderline personality disorder.
The appellant pleaded guilty at the first opportunity. The pre‑sentence report said that the appellant was unsuitable for community orders. However, the sentencing magistrate imposed intensive supervision orders and community based orders for other offences dealt with on the day of imposing the suspended imprisonment sentence.
Having regard to the relatively minor nature of the criminal damage offence, the early plea of guilty, the fact that the appellant suffers from a mental illness which may have contributed to his offending and that he has no prior record for criminal damage, the seriousness of the offence is not such that only imprisonment can be justified and the protection of the community does not require a sentence of imprisonment. In all the circumstances a suspended term of imprisonment was manifestly excessive.
Leave to appeal granted
The imposition of the suspended imprisonment sentence was a miscarriage of justice. Leave to extend time for commencing the appeal should be granted and the sentence should be set aside.
Re‑sentence
I am indebted to Ms King, counsel for the appellant, and Ms Wisbey, counsel for the respondent, for providing me with helpful submissions concerning the powers of the court on re‑sentencing and the appropriate re‑sentencing in this case.
Section 41 of the Criminal Appeals Act sets out the appeal court's power on a re‑sentencing. Section 46 of the Sentencing Act provides that a court sentencing an offender may impose no sentence if it considers that the circumstances of the offence are trivial or technical and having regard to the offender's character, antecedents, age, health and mental condition and any other matter that the court thinks is proper to consider, it is not just to impose any other sentencing option. The circumstances of the criminal damage offence are not trivial or technical. Accordingly, the court may not release the appellant without sentence pursuant to s 46. There is no other legislative provision to enable the court to order no further imprisonment due to time in custody.
Given the time the appellant served in custody, the appropriate penalty is a nominal fine. The appellant will be fined $10.
SJA 1023 of 2016 - activation of suspended imprisonment order
I have found that the appeal against the imposition of the suspended imprisonment order should be allowed, the sentence set aside and a nominal fine imposed in lieu of the original sentence. It is common ground that appeal SJA 1023 of 2016 falls away. I will hear from counsel whether an order should be made formally setting aside the order of 4 months' imprisonment for breach of the suspended imprisonment. Section 41(2) of the Criminal Appeals Act relevantly provides that where an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence that was imposed at or after the time when sentence A was imposed and that took into account sentence A. Accordingly, the court has power to vary both the sentence imposed by the magistrate on 3 December 2014 and the sentences subsequently imposed on 14 March 2016. Given the time served in custody a nominal fine is an appropriate penalty upon resentencing for the three breaches of bail offences (PE 28842/15, PE 6688/16, PE 14083/16). A fine of $10.00 will be imposed for each of those offences.