Churnside v The State of Western Australia
[2016] WASCA 146
•26 AUGUST 2016
CHURNSIDE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 146 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:9/2016 | 16 JUNE, 18 & 20 JULY 2016 | |
| Coram: | MARTIN CJ MAZZA JA MITCHELL JA | 26/08/16 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence set aside Appellant sentenced to a Community Based Order of 12 months duration | ||
| B | |||
| PDF Version |
| Parties: | BRANDON CHURNSIDE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence of 12 months imprisonment Where appellant had significant intellectual impairment compounded by childhood trauma, social disadvantage and substance misuse Where appellant had an established pattern of criminal behaviour and term of imprisonment unlikely to deter future offending conduct Where sentencing judge erred in concluding no viable community-based disposition available when evidence did not establish that fact Appellant resentenced to Community Based Order |
Legislation: | Disability Services Act 1993 (WA) |
Case References: | Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Jardim v The State of Western Australia [2011] WASCA 83 MGM v The State of Western Australia [2012] WASCA 24 Roffey v The State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHURNSIDE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 146 CORAM : MARTIN CJ
- MAZZA JA
MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : KAR IND 29 of 2015
Catchwords:
Criminal law - Appeal against sentence of 12 months imprisonment - Where appellant had significant intellectual impairment compounded by childhood trauma, social disadvantage and substance misuse - Where appellant had an established pattern of criminal behaviour and term of imprisonment unlikely to deter future offending conduct - Where sentencing judge erred in concluding no viable community-based disposition available when evidence did not establish that fact - Appellant resentenced to Community Based Order
Legislation:
Disability Services Act 1993 (WA)
Result:
Appeal allowed
Sentence set aside
Appellant sentenced to a Community Based Order of 12 months duration
Category: B
Representation:
Counsel:
Appellant : Ms K J Farley SC
Respondent : Ms A C Longden, Mr J A Scholz & Ms K C Cook
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Jardim v The State of Western Australia [2011] WASCA 83
MGM v The State of Western Australia [2012] WASCA 24
Roffey v The State of Western Australia [2007] WASCA 246
- JUDGMENT OF THE COURT:
Introduction
1 The gross over-representation of Aboriginal people in the criminal justice system of Australia has attracted the attention of courts, governments, the legal profession and the international and domestic community, the latter including, of course, the Aboriginal community, for many years. The objective of reducing the number of Aboriginal people in Australia's prisons was the focus of many of the recommendations made in the final report of the Royal Commission into Aboriginal Deaths in Custody.1 Regrettably, despite the efforts of governments at national, State and Territory level since those recommendations were made in 1991, the disproportionate over-representation of Aboriginal people in Australia's prisons has increased, rather than decreased.
2 The government of Western Australia has committed to attempting to reduce the number of Aboriginal people in prison in this State. However, measured in terms of numbers per head of Aboriginal population, the rate of Aboriginal imprisonment in Western Australia continues to be higher than in any other Australian jurisdiction.2
3 The Aboriginality of an offender is not, of itself, a characteristic which is relevant to the sentencing process.3 However, the fact that an offender has experienced a traumatic childhood, deprivation and social disadvantage is relevant to the sentencing process,4 and it is the long experience of the courts of this State that Aboriginal offenders are over-represented amongst those who have suffered such life experiences. Similarly, although foetal alcohol spectrum disorder, which this appellant suffers, is not a condition which is in any way peculiar to Aboriginal people, such limited evidence as there is suggests that Aboriginal people are over-represented amongst those who suffer from this condition.5
4 The appellant's foetal alcohol spectrum disorder and neglect during early childhood have deprived him of the capacity to live independently in the community. Yet, apart from his interactions with the criminal justice system, he has been living without significant support in an environment which promotes a purposeless anti-social lifestyle. His is not an isolated case. The community will either bear the cost involved in providing the appellant and those like him with support or bear the costs involved in a cycle of offending and incarceration. While the latter costs will be greater, there is little evidence in the present case of government agencies being proactive in providing the required support to the appellant.
5 The courts are not in a position to address the social disadvantage in remote Aboriginal communities which cultivates the offending behaviour that produces unacceptably high rates of Aboriginal imprisonment. Nor do the courts control the allocation of government funding which may seek to address that social disadvantage. The challenges facing even well-resourced programs are not to be under-estimated. There will be cases where the seriousness of the offences or the pattern of offending committed by persons in the appellant's position is such as to demand the imposition of a term of imprisonment to be immediately served. Ultimately, community protection may require the removal of an offender from the community.
6 However, the present case is not one which, having regard to the nature of the offence and the circumstances of the offender, required the imposition of an immediate term of imprisonment. The appellant's cognitive deficits, which are no fault of his, limit the deterrent effect of imprisonment, both at a general and personal level. The community protection which his imprisonment offers is entirely short-term, as time spent in custody will do nothing to address the prospect of the appellant resuming a cycle of offending and imprisonment on release. Further, the appellant is still a very young man for whom the specialist reports indicate hope for rehabilitation if support can be provided in the community. The material placed before the sentencing judge indicated that there was some prospect that steps to promote change in the appellant's behaviour might be available in the community. Further inquiries made by this court have indicated that arrangements can in fact be made in the community which offer better prospect than imprisonment for breaking the tragic cycle of offending and imprisonment which threatens to characterise the appellant's life. We have concluded that the sentencing judge erred in finding that there was no viable community-based disposition without directing the making of inquiries which would establish whether that was in fact the case.
7 The circumstances of this case demonstrate that the courts of this State must make every possible effort and take every step consistent with the interests of justice to engage the services of governmental and non-governmental agencies to assist offenders to change their living circumstances and behaviour in a way which will reduce the risk of reoffending, particularly in relation to offenders who suffer from cognitive deficits of the kind associated with foetal alcohol spectrum disorder. Without those efforts being made, the repetitive cycle of offending followed by ineffective punishment is likely to continue indefinitely to the detriment of both the relevant offender and to the safety of the community. The circumstances of this case also demonstrate the practical difficulties of providing appropriate support and assistance to offenders who reside in regional and remote parts of our State. As Aboriginal people are over-represented amongst those who have suffered childhood trauma, deprivation and social disadvantage, and amongst those who suffer foetal alcohol spectrum disorder, and amongst those who reside in regional and remote Western Australia, assiduous effort by the courts of this State to engage and facilitate whatever support and services may be available to offenders with these characteristics is an essential component of any effective strategy to reduce disproportionate Aboriginal imprisonment.
8 On 20 July 2016, this court ordered that this appeal be allowed, the sentences of imprisonment imposed upon the appellant be quashed and instead the appellant be sentenced to a Community Based Order of 12 months duration on specified terms and conditions, for reasons to be published in due course. These are those reasons.
The offences
9 On 14 December 2015 the appellant was convicted in the District Court at Karratha, on his own pleas of guilty, of two counts of aggravated burglary. For the purposes of sentence the facts of the offence were established by the prosecutor's tender of the statement of material facts and the prosecution brief. Those materials established the following facts, which were found by the sentencing judge for the purposes of sentence.
10 The first offence of aggravated burglary was committed between 10.00 pm and 10.30 pm on Friday 3 July 2015 when the appellant and his co-offender were in the vicinity of Millars Well, a suburb of Karratha. There was a car in the driveway and the occupants of the house were at home at the time. Those occupants included a 10 year old girl. The appellant and the co-offender decided to enter the premises for the purpose of stealing alcohol and cash. The appellant opened the front sliding door which was unlocked. The appellant and co-offender then entered the house and searched the premises for items to steal. Bottles of alcohol were located and stolen.
11 The second offence of aggravated burglary was committed between 5.15 am and 6.15 am on Saturday 11 July 2015, when the appellant and the same co-offender were in the vicinity of a house in Pegs Creek, another suburb of Karratha. There was a car parked in the driveway and the occupants of the house were at home. The appellant and the co-offender decided to enter the premises for the purpose of locating and stealing cash. The appellant entered the yard to the rear of the premises and discovered that the sliding door at the rear of the house was unlocked. He returned to the front of the premises and informed the co-offender of that fact, after which both entered the house through the rear sliding door. They took a handbag from a bedroom and a mobile phone from the kitchen bench. They then went into the yard at the rear of the premises and went through the handbag, discarding its contents other than $70 in cash and another two mobile phones, which they stole.
12 Later that day the appellant was located by police at his home in Karratha and was conveyed to the Karratha police station where he admitted his involvement in the two offences in the course of a recorded interview.
The co-offender's other offences
13 At the same hearing of the District Court, the co-offender was convicted of the same offences as the appellant and of four additional offences on his plea of guilty. The first of those additional offences was the offence of stealing alcohol from the house which was the subject of the first burglary committed by the appellant and the co-offender. The second additional offence was the offence of indecently dealing with a child under 13 years in the course of that same burglary, by placing his hand down the front of her shirt while she was sleeping, and then placing his hand down the front of her shorts, beneath her underpants. At some stage the co-offender used a pair of scissors he had with him to cut the shorts which the victim was wearing in an apparent attempt to remove them. The victim awoke and spoke briefly to the co-offender before running from the room to her parents' room. The appellant was not present when this offence was committed, but both offenders left shortly after the girl raised the alarm.
14 The third additional offence of which the co-offender was convicted was the offence of stealing the property taken in the course of the second burglary committed with the appellant. The fourth additional offence committed by the co-offender was the offence of attempted burglary of another house at Pegs Creek, also on 11 July 2015.
The reports tendered prior to sentence
15 Four reports pertaining to the appellant were tendered during the course of the sentencing hearing. They were:
(a) a pre-sentence report prepared by the Department of Corrective Services;
(b) a psychological report prepared by Mr Andrew Macdonald;
(c) a neuropsychological report prepared by Dr Carmela Pestell; and
(d) a paediatric report prepared by Dr James Fitzpatrick, a paediatrician.
The psychological report
16 The psychological report authored by Mr Macdonald was prepared in August 2011 when the appellant was 16 years of age. Mr Macdonald noted that a previous psychological report prepared in 2008 had reported concerns with respect to the appellant's cognitive development and that three of the perceptual reasoning tests administered at that time produced results which fell in the 'extremely low' range of ability. Mr Macdonald noted that the appellant's intellectual and adaptive behaviour skills across a range of settings had raised serious concerns that he may have an intellectual disability and that a referral to the Disability Services Commission (DSC) was appropriate.
17 Mr Macdonald noted that his application of an adaptive behaviour assessment tool resulted in scores which fell within the diagnostic criteria for adaptive behaviour difficulties, and the intellectual functioning assessment tool which he utilised resulted in an assessment of intellectual disability.
18 Mr Macdonald noted that the assessment of the appellant's social interaction and communication skills placed him within the 'very limited' range, and noted that his mother had reported that he required additional support to perform basic adaptive tasks and often became easily frustrated - something which she attributed to his difficulties in being able to properly communicate and express his needs.
19 Mr Macdonald noted that the appellant's score on the Wechsler Non-Verbal Scale of Ability test which he administered placed him at a level lower than that which would be expected for more than 99% of peers of the same age. He noted that the appellant required repeated instructions throughout the testing and was easily distracted by extraneous stimuli. He did not appear to demonstrate any specific strategy for solving problems – rather, his approach appeared to be random.
20 Mr Macdonald noted that the scores needed to be treated cautiously because of cultural differences between the groups by reference to which the tests had been normalised and the Aboriginal population. He also noted that the appellant's scores were likely to have been affected by his lack of exposure to formal western education. However, despite these reservations, Mr Macdonald expressed the view that it is highly likely that the appellant has cognitive difficulties which have affected his capacity for social interaction, his ability to solve social problems, and his ability to assert himself in dealing with his peers.
21 Mr Macdonald also noted that information available suggested that the appellant's last recorded appearance at school was in July 2008 and that his time at school was characterised by chronic absenteeism, refusal to attend class and a number of suspensions. It was also noted that the appellant had apparently experienced difficulty maintaining peer relationships at school, and had experienced bullying and harassment, which required the support of others including family members.
22 Mr Macdonald also noted that the appellant had used cannabis from approximately the age of 14.
23 Mr Macdonald concluded his report with an overall assessment of the appellant. He found that the appellant displayed significant developmental delays in his intellectual functioning and had considerable difficulty in achieving many age-level tasks. He appeared to demonstrate considerable need for the services of the DSC and would benefit from assistance in relation to options available to him following his schooling. He also noted that the appellant's primary carer, his mother, would benefit from assistance in managing his behaviour.
The neuropsychological report
24 Dr Carmela Pestell, a clinical neuropsychologist, assessed the appellant on 12 November 2015 at Roebourne Regional Prison. In her report she noted that the appellant had previously been diagnosed with intellectual disability and adaptive functioning disability, and had been registered with the DSC. Under the heading 'Psychosocial History' she recorded that the appellant had suffered disrupted attachments during his childhood, allegedly as a result of exposure to domestic violence and maternal substance abuse. She also noted that the appellant's biological father had been a long-term resident of a mental institution, and that the appellant had resided with his grandmother from the age of 7 or 8, although she subsequently passed away. At the time of his arrest for the offences of which he was later convicted, he had been living with his mother and two siblings in Karratha.
25 Dr Pestell noted that the appellant had been a significant user of alcohol and marijuana since the age of 14, and had a long history of prior offending. She also noted that he had a history of poor engagement at school characterised by frequent suspensions, refusal to attend class and chronic absenteeism. She noted that he had left school in year 9 due to his substance abuse, and that he had a history of being teased and bullied.
26 Dr Pestell reported the following findings as a result of her assessment of the appellant. She observed that his verbal abilities were within the extremely low range and that his listening comprehension was also extremely low, evidencing both expressive and receptive language impairment. His fine motor skills were borderline and his initial attention span was in the extremely low range, as was his working memory. While he has some ability to sequence, his cognitive flexibility and multi-tasking abilities were assessed as poor.
27 Dr Pestell noted that the appellant exhibited a poor ability to learn new verbal information and did not apparently benefit from repetition. His immediate verbal memory was within the extremely low range across various tasks. His visual memory was slightly better, although borderline. In Dr Pestell's view, these assessments led to the conclusion that he might benefit from visual cues to assist his learning. She also considered it likely that poor attention span and language difficulties were adversely impacting the appellant's ability to remember and learn verbal material. Her findings suggested that the appellant had difficulty encoding information into memory adequately, and also experienced significant difficulty accurately retrieving information from memory, especially if required to learn new material. She noted that his ability to recognise information was also very poor.
28 Dr Pestell noted that the appellant's performances on tests of executive functioning were indicative of impairment in most areas - his higher level verbal problem-solving was extremely low, and his sequencing and set shifting were low for his age group. He had significantly poorer sustained attention than those his age, with extremely low inhibition.
29 Dr Pestell noted that the appellant obtained a score within the extremely low range on tests of reading, mathematics and spelling, with his skills approximately equal to those of a 6 or 7 year old (the appellant was 20 years of age at the time these tests were administered).
30 In conclusion, Dr Pestell noted that the appellant's history, his clinical presentation and his neuropsychological test performance were in keeping with a history of intellectual disability and the cognitive deficits frequently seen in neurodevelopmental disorders. In particular, Dr Pestell noted that there was evidence of functional central nervous system dysfunction in all of the foetal alcohol syndrome domains.
31 Dr Pestell expressed the view that the appellant's offending history and neuropsychological profile suggested that, absent close supervision or ongoing professional support, particularly in relation to substance abuse, the probability of escalation in his offending behaviour was high. She recommended that therapeutic interventions be more systemic in nature, such as arranging an appropriate male mentor who may be able to provide the appellant with appropriate adult attention and facilitate his engagement with pro-social occupation, sporting and leisure activities. She noted that the appellant would require assistance with transportation, and that his cognitive problems would continue to affect his ability to communicate and learn, as well as his capacity to benefit from occupational opportunities in the future. She did not consider that he was suitable for open employment, but rather would require input from a disability focused employment agency and a sheltered placement involving the performance of routine tasks. She considered that the focus of therapeutic intervention should be on building adaptive skills and life-skill training (for example, use of money and time), as well as the provision of direct instruction with regard to safety (protective behaviours, self-care and social skills).
The paediatric report
32 Dr James Fitzpatrick is a paediatrician with special expertise in the field of foetal alcohol spectrum disorder. He assessed the appellant in Roebourne Prison in November 2015. In his report he noted that it had not been possible to obtain detailed pregnancy, birth and early life course information. He also noted that the appellant was very shy during the assessment and had limited cognitive capacity to provide information on his early life experiences. Dr Fitzpatrick noted that the appellant experienced significant early life trauma witnessing domestic violence and had poor attachment relationships with adults. He lived with his maternal grandmother from around the age of seven, and his father had severe mental health issues which required in-patient treatment in a psychiatric facility.
33 Dr Fitzpatrick noted that the information available suggested significant maternal substance abuse issues before and after the time of the appellant's birth, which led him to conclude that there was a high likelihood of exposure to alcohol and other substances during her pregnancy with the appellant.
34 Dr Fitzpatrick noted that the appellant did not display any facial features associated with foetal alcohol spectrum disorder, although the appellant did have other physical characteristics which may be associated with pre-natal alcohol exposure, including short stature and hirsutism (additional fine body hair on his back).
35 Dr Fitzpatrick also noted that neuropsychological assessment had established significant impairment in seven neurocognitive domains:
(1) Cognition/intellectual functioning;
(2) Attention;
(3) Language;
(4) Memory;
(5) Academic functioning;
(6) Executive functioning; and
(7) Adaptive functioning/abstract reasoning.
36 Dr Fitzpatrick concluded that the appellant's presentation was consistent with foetal alcohol spectrum disorder from exposure to alcohol and potentially other substances in utero, compounded by the combined and cumulative effects of significant early life emotional and social trauma. He noted that the appellant had lived in a chaotic home and community environment, and had missed the opportunity to form secure attachment bonds, to engage in educational opportunities and to establish a path for a productive future.
37 Dr Fitzpatrick expressed the view that the appellant's reoffending was likely to continue if he was not engaged in a therapeutic sentencing process that explored his early life trauma and stress, recognised his limited intellectual and social/adaptive capacity and provided realistic goals for his future. He expressed the view that the prison system was unlikely to be any deterrent to the appellant reoffending.
38 Dr Fitzpatrick expressed the view that while the appellant appeared to draw strength from his family and community, that environment exposed him to purposeless and anti-social behaviour, and was an environment in which he was unlikely to be able to self-motivate and plan to stay out of trouble. In his view, a structured and supportive environment with practical activities appropriate to the appellant's level of cognitive functioning was recommended. He suggested that this might take the form of 'on country' or basic workplace programmes. He expressed the view that positive role modelling through a reliable mentor or case manager would be of benefit to the appellant.
The pre-sentence report
39 The author of the pre-sentence report noted the appellant's long history of offending, much of which was burglary related. She noted that the appellant attributed his offending directly to his substance misuse. She also noted that he had been subject to home detention bail following his arrest in relation to the offences relevant to this appeal, and had been subject to electronic monitoring as a condition of that bail. However, the appellant admitted removing the device and leaving the address at which he was required to remain. He was subsequently apprehended and his bail was revoked, and he was remanded in custody.
40 The author of the pre-sentence report noted that the appellant had been living a pro-criminal lifestyle from an early age, had integrated with negative peers and that his substance misuse exacerbated the risk of offending behaviour. The author considered that the appellant would benefit from seeking out pro-social peers and community supports and groups if he was to change his lifestyle. The author noted that the appellant acknowledged that if he was to avoid reoffending he would have to stay away from alcohol and cannabis.
41 The author of the pre-sentence report referred to the psychological and paediatric reports we have summarised and expressed the view that the appellant presented as an ongoing risk to the community, specifically with regard to property offending, given his evident disabilities.
42 The author of the pre-sentence report noted that the appellant's cognitive impairment might make it difficult for him to comply with a community-based disposition, although she suggested that he could be encouraged to engage with the DSC for ongoing support and assistance. She also noted that a male mentor might be beneficial for the appellant to teach him adaptive and life skills and to encourage his engagement with occupational, sporting and leisure activities. She noted that such a mentor might also assist the appellant to detach himself from negative peers and substance misuse, and suggested that such a mentor might be provided through his engagement with the DSC. The author of the pre-sentence report also suggested the appellant might benefit from an education programme on the effects of alcohol and cannabis misuse provided by a non-government agency.
The appellant's criminal history
43 As noted in the various reports to which I have referred, the appellant has an extensive criminal record, commencing in July 2007 when he was 12 years of age. Property offences (such as stealing and aggravated burglary) are dominant amongst the offences he has committed. The appellant was convicted of 34 offences of burglary prior to the convictions giving rise to this appeal. He was first sentenced to a period of detention in April 2012, at the age of 17. He was sentenced to a term of 12 months imprisonment in February 2014, when he was almost 19 years of age, following his conviction of two offences of burglary.
The sentencing hearing
44 Counsel appearing on behalf of the appellant at the sentencing hearing pointed out that the last occasion the appellant had been placed on any form of community-based disposition was in September 2011, more than four years earlier. She advised the court that the appellant's mother and sister were both present and that the appellant's mother was very concerned about her son's future, and wished to take steps to change his trajectory. Counsel advised the court that the appellant's mother was considering moving with her family to the community of Youngaleena, an Aboriginal community some distance from Tom Price to which the appellant and his family are connected through the appellant's mother's grandfather. Youngaleena is a community in which the possession or use of alcohol is prohibited.
45 Counsel also advised the court that the community was close to Karijini National Park and that there was a proposal to set up a ranger programme for indigenous men and women to work within the park. The appellant's grandfather was involved in starting up that programme and it was submitted that the appellant could benefit from participation in such a programme.
46 Counsel also submitted that there had been a significant gap in the appellant's offending behaviour during a period over which he lived with an uncle at that community. She advised the court that the appellant's mother was well aware of the adverse influences to which the appellant was subject if he remained in Karratha.
47 Counsel for the appellant advised the court that in the event that he did not move to Youngaleena with his mother, some support and assistance would be available for the appellant in Karratha. She advised that an organisation known as EPIC6 which provided programmes and activities for people with disabilities might assist the appellant and that she had made contact with an officer of the DSC, who had indicated that it would be possible to increase that organisation's engagement with the appellant if he was not in prison.
48 Counsel submitted that the imposition of a term of immediate imprisonment would not reduce the very high risk of the appellant reoffending after his release from prison, consistently with the view expressed by Dr Fitzpatrick. She submitted that a community based disposition under arrangements which would provide the appellant with the supports identified in the expert reports would provide the greatest protection to the community.
49 Counsel for the State submitted that a term of imprisonment to be immediately served was the only appropriate sentencing disposition.
Observations at the time of sentence
50 After referring to the circumstances of the offences, and to the appellant's lengthy prior record, the sentencing judge referred to Dr Fitzpatrick's view that the appellant's offending behaviour was likely to continue unless he was engaged in a therapeutic sentencing process. The judge accepted the proposition that the prison system was unlikely to deter the appellant from reoffending.7
51 The judge also noted that movement of the appellant to the Youngaleena community might be beneficial, given that the only significant period of abstinence from offending (other than times when the appellant was in detention or prison) was when he lived in that community with his uncle. He further noted that removing the appellant from the adverse influences and peer pressures of the Roebourne, Dampier, Wickham and Karratha area would be beneficial.
52 After referring to the offences committed by the co-offender, and the co-offender's personal circumstances and history, the sentencing judge noted there was a significant difference between the two offenders as a consequence of the appellant's cognitive and intellectual impairment.
53 After referring to the difficulties which the appellant's cognitive impairment might create for compliance with the community based disposition, and to his breach of home detention bail, the sentencing judge observed:
I appreciate that in an ideal world there might be available a structured supportive environment with practical activities appropriate to your cognitive functioning. That's what's recommended by the paediatrician. The problem is that, in my assessment, there is presently not such an environment available; at least not in the Pilbara. There are agencies who, in a piecemeal way, might be able to provide services to you from time to time, but they can't require you to be in the one place at the one time on a continuous basis. And they can't provide the sort of intensive monitoring that is really suggested by the paediatric report. And that's the difficulty. In all of the circumstances, I will impose sentences of imprisonment to be immediately served on you both. I will endeavour to reflect the lesser culpability by reason of [the appellant's] intellectual impairment in the terms that I impose.8
The sentences imposed
54 In relation to the first offence of burglary committed by the appellant and his co-offender, the judge imposed a sentence of 10 months imprisonment on the appellant and a term of 12 months imprisonment on the co-offender. For the second offence of burglary committed by both offenders, the judge imposed terms of 12 months imprisonment on each, to be served cumulatively on the sentence imposed in respect of the first count. The effect of those sentences was to impose a total effective sentence of 22 months imprisonment on the appellant, who was made eligible for release on parole.
55 In relation to the co-offender, the judge imposed no penalties in respect of each count of stealing committed in conjunction with the burglaries for which the co-offender had been sentenced to imprisonment. In respect of the offence of indecent dealing with a child under the age of 13, he imposed a term of 9 months imprisonment, and for the offence of attempted burglary he imposed a penalty of 6 months imprisonment, to be served concurrently with the first sentence of imprisonment imposed. All other terms were to be served cumulatively, with the result that the co-offender was sentenced to a total effective term of imprisonment of 2 years and 9 months. The co-offender was also made eligible for parole.
The first appeal hearing
56 In the course of oral argument on the first hearing of the appeal, senior counsel for the appellant submitted that the judge's assumption that a structured, supportive environment with practical activities appropriate to the appellant's cognitive function would not be available to the appellant was not justified.9 Attention was drawn to the omissions in the evidence before the court at the time of sentence, including the failure to obtain information with respect to the extent to which the DSC might be able to support and assist the appellant if he were not incarcerated, and to the lack of information within the pre-sentence report as to the extent to which the specific forms of support and assistance identified by Drs Pestell and Fitzpatrick would be available to the appellant if he were not incarcerated. Nor was it ascertained whether there was a specific and definite plan for the appellant to reside at the community of Youngaleena with his mother if not incarcerated and if so, what arrangements might be made to provide support and assistance to the appellant in that environment.
57 In light of those apparent omissions, the court directed that the hearing should be adjourned to enable information to be gathered on those topics, and directed that a further pre-sentence report was to be provided identifying the extent to which the recommendations made in the reports of Drs Fitzpatrick and Pestell could be implemented if the appellant was to be released on a community based order if he were to remain in Karratha or alternatively if he moved with his mother to Youngaleena. The court also directed that the Office of the Director of Public Prosecutions make inquiry of the DSC with respect to the services that could be provided to Mr Churnside either in Karratha or in Youngaleena, if he were to be released on a community based order. The court also directed that if it was proposed that the appellant move to the community of Youngaleena in the event of being released from custody, evidence should be adduced with respect to the extent to which the community was willing to accept the appellant as a resident.
The second appeal hearing
58 At the resumed hearing of the appeal, the court received further evidence in accordance with the directions previously made. In particular, the court received a letter from the Director General of the DSC dated 7 July 2016. Unfortunately, that letter provided very limited specific information with respect to the precise extent of the support that could be provided by the DSC if the appellant was to be released into the community. Happily however, that information was augmented by a subsequent letter from the Director General dated 19 July 2016, in which he advised that in the event the appellant chose to engage with the Commission, it would be happy to develop a plan that specified disability-related supports that could be funded under the Disability Services Act 1993 (WA). The letter specifically identified the Commission's capacity to fund and provide an appropriate male mentor, assist with transportation and assist the appellant to develop adaptive skills and life skills, including the provision of direct instruction with regard to safety - including protective behaviours, self-care and social skills.
59 At the resumed hearing the court also received a letter from the appellant's mother, in which she advised the court that she and her partner had decided to move to Youngaleena so that they could support the appellant to move back into society. The appellant's mother pointed out that she is a Banjima woman, and the Banjima people are the traditional owners of the Karijini National Park. She proposed that she would stay with her Aunty Thelma Parker in Youngaleena. Ms Parker is the chairperson of the Youngaleena community. She also proposed that the appellant would stay at the single men's camp at that community. In the letter the appellant's mother also advised the court that it was proposed that the appellant would work with her and her partner in the ranger programme associated with the Karijini National Park. She also proposed that Mr Eric Parker, an uncle of hers and elder of the Youngaleena community would provide mentoring services for the appellant. He is the uncle with whom the appellant had previously resided, during a period over which he refrained from offending.
60 The court also received in evidence a document apparently signed by Ms Thelma Parker in her capacity as chairperson of the Youngaleena community providing authority for the appellant to reside at that community.
61 At the resumed hearing the court also received a further pre-sentence report. As directed by the court, that report identified the services that would be available in the event that the appellant remained in the Karratha area, and also in the event that he was to reside in the Youngaleena community.
62 In that report the court was advised that if the appellant was to remain in the Karratha area, he would be supervised by Community Corrections officers on the basis of weekly face to face contact. He would also be referred to a non-government agency for substance abuse counselling and could be required to undertake regular urinalysis testing. While a referral to a psychological counsellor would also be available, the author of the report expressed the view that this may not be a suitable option, given the appellant's cognitive impairment. The author also referred to the possible referral of the appellant to the EPIC organisation. That organisation, if engaged, would offer the appellant ongoing support with life skills, employment and the provision of a mentor to assist with his needs and possible transport to appointments.
63 In the event that the appellant was to move to the Youngaleena community, he would be supervised by the Newman office of Community Corrections. As that office is more than 200 km from Youngaleena, the supervision would mainly be conducted by telephone, although it was noted that Community Corrections officers based in Newman do attend Tom Price on a monthly basis. As Tom Price is closer to the Youngaleena community than Newman, it could be possible to organise face to face contact with Community Corrections officers on a monthly basis.
64 The report also advises that even if the appellant moved to Youngaleena, he could be referred to a non-government agency for substance abuse counselling which would involve an initial assessment in person, with follow up work by telephone or teleconference, and with the possibility of face to face counselling at Tom Price on a bimonthly basis.
65 The report concluded that the appellant would benefit from assistance and interventions within the community. Although the author noted that there are limited resources available in the Youngaleena community, the community is a dry community and in the author's view the appellant would benefit from being distanced from negative peer influences, which would lower the risk of his reoffending within the community. The author also noted that the provision of family support within that community may be the best option for the appellant.
66 At the resumed hearing senior counsel for the appellant advised the court that she had been instructed that the man running the ranger programme out of Youngaleena was keen to admit the appellant to the programme. Senior counsel also drew the court's attention to the fact that the appellant's past association with Mr Eric Parker, his great uncle, had proven to be beneficial, as it was the longest period he had not offended (while not in custody) since he was a very young child. Senior counsel also advised the court that if the appeal was allowed and the appellant resentenced on terms which resulted in his release from custody, arrangements could be made for his mother and her partner to collect the appellant from Roebourne Regional Prison, who would take him to Karratha to report to the Community Corrections Office and then transport him to the Youngaleena community.
67 During the resumed hearing counsel for the respondent also advised the court that the respondent conceded that the sentencing judge had erred by assuming that there were no options available which would provide the appellant with the support and assistance he obviously required within the community, without obtaining all the information necessary to establish that there were no such options. It will be apparent from the additional information that was provided to this court pursuant to the directions it made that this concession was properly made.
The grounds of appeal
68 There are three grounds of appeal. The first ground asserts that the sentencing judge erred by imposing a term of imprisonment to be immediately served. The second ground, as explained in the written submissions, in substance alleges that the total effective sentence infringed the first limb of the totality principle.10 The third ground asserts that the sentences imposed upon the appellant infringed the parity principle, having regard to the different circumstances of the appellant and his co-offender, and the different offences they committed.
69 The second and third grounds can be briefly dismissed. As to ground 2, having regard to the appellant's overall offending and all relevant sentencing considerations, if terms of imprisonment to be immediately served were the appropriate disposition of the case, the total effective sentence imposed cannot be said to be outside the range of a sound exercise of the sentencing discretion. The total effective sentence did not infringe the first limb of the totality principle. The critical issue which the sentencing judge had to address was not so much the length of the terms to be imposed, but rather the question of whether the imposition of sentences of imprisonment to be served immediately was appropriate having regard to the uncontradicted evidence with respect to the antecedents of the appellant, including the childhood trauma to which he had been exposed, and the social disadvantages which he had suffered, exacerbated by his very significant mental impairment, in a context in which the judge accepted that the imposition of such a penalty was not likely to have any impact upon the prospect of the appellant reoffending after release.
70 Like ground 2, ground 3 seeks to impugn the length of the terms of imprisonment, if imprisonment was the only appropriate outcome. The ground alleges that the parity principle was infringed because of a lack of disparity between the total effective sentence imposed upon the co-offender and the appellant. The appellant's argument is that although the sentencing judge imposed a total effective sentence on the appellant that was 11 months shorter than the total effective sentence imposed upon the co-offender, the difference should have been greater, given the subjective factors relevant only to him and the additional offences committed by the co-offender. The appellant submitted that this lack of disparity gives rise to an objectively justifiable sense of grievance on his part.
71 The relevant principles to be applied to this ground are uncontroversial and were explained in MGM v The State of Western Australia [2012] WASCA 24 [41] - [43]:
The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).
The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).
Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J).
72 Whether there is an objectively justifiable sense of grievance has to be determined by taking into account the application and effect of relevant sentencing principles including the totality principle: Jardim v The State of Western Australia [2011] WASCA 83 [13].
73 In our opinion, based on the material before the sentencing judge, if terms of imprisonment were appropriate, it has not been demonstrated that they infringed the parity principle as alleged. This is essentially for three reasons. First and foremost, there was, in fact, a substantial disparity between the total effective sentences imposed upon the co-offender and the appellant. Second, the co-offender's record of convictions was not as bad as the appellant's. Third, the total effective sentence imposed upon the co-offender was affected by the operation of the totality principle. In these circumstances, the disparity does not give rise to an objectively justifiable sense of grievance on the appellant's part.
74 Returning to the first ground of appeal, the following matters are relevant to the assessment and disposition of that ground.
75 First, the reports received by the sentencing judge were all entirely consistent. They established the following:
(1) The appellant suffered from a neurocognitive disorder as a consequence of having been exposed to alcohol and perhaps other substances while being carried by his mother prior to his birth;
(2) The consequences of the neurocognitive disorder suffered by the appellant were exacerbated and compounded by his childhood experience including, in particular, his exposure to trauma, including domestic violence; the instability of parenting arrangements; the lack of capacity to form strong attachments with adults during his childhood; and by general family dysfunction;
(3) The appellant could not be held morally responsible for his pre-birth and childhood experiences, or their profound consequences;
(4) The combined effect of the appellant's development disorder and his childhood experience has a profound and continuing impact on every aspect of his day-to-day functioning, including his thought processes, his social interactions and his behaviour;
(5) The appellant's functional capacity has been further diminished by his lack of meaningful participation in schooling, which was the likely consequence of the other factors to which we have referred;
(6) The appellant's behaviour has been affected by his misuse of alcohol and cannabis since the age of 14. His substance misuse is the likely consequence of the other factors to which we have referred and the appellant's consequent inability to cope in the contemporary world, exacerbated by undesirable peer associations;
(7) The appellant had an established pattern of criminal behaviour which included a long history of predominantly property offences, including more than 30 offences of burglary;
(8) Periods of juvenile detention and a term of imprisonment had not had any apparent impact upon the appellant's offending behaviour;
(9) A further period of imprisonment was unlikely to have any impact upon the appellant's behaviour;
(10) Given the appellant's disabilities and his life experience, the only prospect of changing his behaviour was through the provision of the support and assistance which he needed to cope with daily life; the avoidance of substance misuse and negative peer associations; and the development of the skills which he needed to avoid situations in which he was at risk of offending and which may, in due course, enable the appellant to be gainfully employed in a sheltered environment.
76 Second, the appellant's criminal record clearly established the trajectory of his offending behaviour, and the likelihood of that behaviour continuing unless the various steps suggested in the reports received by the court were taken.
77 Third, although the appellant's prior offences are predominantly property offences, as he gets older there is an inevitable risk that the nature and seriousness of his offending will escalate, perhaps to offences involving violence or sexual assault, particularly if the appellant is under the influence of alcohol or drugs or the negative influence of others by whom he is easily led.
78 Fourth, although the offences committed by the appellant were serious, as they involved the burglary of dwellings which were occupied by their inhabitants at the time, deterrence, both general and specific, is of much reduced significance in the sentencing process because of the disabilities which the appellant suffers through no fault of his own.
79 Fifth, as there is an obvious connection between the appellant's disabilities and his offending behaviour, the moral culpability of the appellant's offending behaviour is diminished because of the disabilities which he suffers through no fault of his own.
80 Sixth, as the sentencing judge accepted, terms of imprisonment to be immediately served were unlikely to have any impact upon the appellant's behaviour after his release from prison.
81 Seventh, although there were limitations upon the resources available to support the appellant in the community, the information available to the court at the time of sentence suggested that there were a number of possible avenues of support including:
(1) Engagement with the DSC;
(2) Support and supervision by Community Corrections officers;
(3) Programme-based support provided by EPIC;
(4) Substance abuse counselling available from a not-for-profit organisation;
(5) The possibility of an adult male mentor being provided to support the appellant in the community;
(6) The prospect that the appellant's mother might assume the responsibility of removing the appellant from the negative influences to which he had been subject in the Karratha area by taking him back to her country where he could be exposed to the beneficial influence of his great uncle, and perhaps provided with an environment in which he could develop skills to engage in gainful employment in a sheltered environment through the Ranger programme.
82 In all the circumstances of this case, the court was obliged to use every means at its disposal to arrive at a disposition which would offer some degree of protection to the community by reducing the risk of the appellant reoffending and at the same time provide some measure of justice to the appellant who would otherwise be destined to an indefinite and perhaps escalating cycle of offending and imprisonment as a result of his pre-birth and childhood experiences. Although the material before the court did not establish detailed or definite plans that would enable the court to conclude that the appellant could be provided with the supports which he needed in either Karratha or Youngaleena, the information did disclose that there were possibilities and opportunities which could be explored and developed to the point at which the court could be satisfied that a viable community-based sentencing disposition was available in one or other of those locations.
83 In these circumstances we accept the concession proffered by counsel for the respondent to the effect that the sentencing judge erred by concluding that there was no viable community-based disposition available to him when the evidence before the court had not established that fact. In our view, the circumstances of this case required the sentencing judge to cause further inquiries to be made, and further information to be provided to the court, for the purpose of identifying and perhaps galvanising the various agencies, both governmental and non-governmental, into the development of a specific proposal which would provide the appellant with the support which he so obviously needs in an environment in which the risk of him reoffending could be reduced.
84 The steps taken by this court have resulted in the development of a specific proposal to remove the appellant from the adverse influences to which he has been subject in the Karratha area and to place him in a supported environment in a remote community in which alcohol is prohibited, with the benefit of support and assistance from both immediate and extended family, and the prospect of engagement in worthwhile daily activity in a protected environment, augmented by support, albeit from a distance, provided by Community Corrections officers and substance misuse counsellors. Of course, there can be no guarantee that these arrangements will succeed in changing the appellant's behaviour or in causing him not to reoffend. Given the profound extent of his disabilities, his life experiences and his well-established patterns of offending behaviour, the difficulty of achieving meaningful change should not be under-estimated. However, these arrangements offer the appellant and the community at least some hope or prospect of a change for the better, whereas a term of imprisonment offered no such hope or prospect.
85 In these circumstances, this court considered that, taking into account the term of imprisonment already served by the appellant as a result of the offences of which he was convicted, the appeal should be allowed, the sentences imposed upon the appellant should be quashed and the appellant resentenced to a Community Based Order of 12 months duration in respect of each offence, to be served concurrently, with a supervision and programme requirement, and a condition that the appellant reside at Youngaleena or such other place as a Community Corrections officer might approve in advance.
1 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Final Report (1991).
2 Although the proportion of Aboriginal prisoners within the prison population of the Northern Territory is higher than the corresponding proportion of the prison population in Western Australia, when account is taken of the fact that Aboriginal people comprise a significantly higher proportion of the total population of the Northern Territory, the disproportion of Aboriginal imprisonment is higher in WA than in that Territory.
3Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [36] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
4Bugmy v The Queen [37] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
5 Concern about the prevalence of foetal alcohol spectrum disorder in Aboriginal communities, and in particular remote Aboriginal communities, led to the initiation of the Lililwan Project by Aboriginal leaders in the Fitzroy Valley in Western Australia in partnership with leading research organisations. The objective of the Lililwan Project was to determine the prevalence of foetal alcohol syndrome (the most severe foetal alcohol disorder) in all children born in 2002 and 2003 and living in the Fitzroy Valley during the study period. The study found that the population prevalence of foetal alcohol spectrum disorder in the remote Aboriginal communities of the Fitzroy Valley is the highest reported in Australia. See Fitzpatrick J P et al, 'Prevalence of fetal alcohol syndrome in a population-based sample of children living in remote Australia: The Lililwan Project' (2015) 51(4) Journal of Paediatrics and Child Health 450.
6 EPIC is an acronym for Empowering People In the Community.
7 Ts 31.
8 Ts 33.
9 Appeal ts 4.
10 See Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA, Steytler P & Miller JA agreeing).
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