Corpus v Roseveare
[2015] WASC 165
•12 MAY 2015
CORPUS -v- ROSEVEARE [2015] WASC 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 165 | |
| 12/05/2015 | |||
| Case No: | SJA:1026/2015 | 5 MAY 2015 | |
| Coram: | HALL J | 5/05/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | 1. Extension of time granted 2. Leave to appeal granted 3. Appeal allowed and appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL DWAYNE CORPUS TYRONE DOUGLAS ROSEVEARE |
Catchwords: | Criminal law Appeal against sentence Mental illness Whether unjust to activate suspended sentences Damage, obstruction of public officer and bail offences Whether total effective sentence of 13 1/2 months disproportionate Totality principle |
Legislation: | Sentencing Act 1995 (WA), s 80 |
Case References: | Dragon v The State of Western Australia [2008] WASCA 252 F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125 Gok v The Queen [2010] WASCA 185 Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 Krijestoric v The State of Western Australia [2010] WASCA 35 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Marston (1993) 60 SASR 320 R v Tsiaras (1996) 1 VR 398 Roffey v The State of Western Australia [2007] WASCA 246 Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TYRONE DOUGLAS ROSEVEARE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G A BENN
File No : MI 6927 of 2013, MI 6929 of 2013, MI 3700 of 2014, MI 9564 of 2014, MI 0565 of 2014, PE 84575 of 2014, PE 97738 of 2014, PE 97739 of 2014
Catchwords:
Criminal law - Appeal against sentence - Mental illness - Whether unjust to activate suspended sentences - Damage, obstruction of public officer and bail offences - Whether total effective sentence of 13 1/2 months disproportionate - Totality principle
Legislation:
Sentencing Act 1995 (WA), s 80
Result:
1. Extension of time granted
2. Leave to appeal granted
3. Appeal allowed and appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
Respondent : Mr L M Fox & Ms S E Wisbey
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dragon v The State of Western Australia [2008] WASCA 252
F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125
Gok v The Queen [2010] WASCA 185
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Krijestoric v The State of Western Australia [2010] WASCA 35
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Marston (1993) 60 SASR 320
R v Tsiaras (1996) 1 VR 398
Roffey v The State of Western Australia [2007] WASCA 246
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Wheeler v The Queen [No 2] [2010] WASCA 105
1 HALL J: This appeal against sentence was heard by me on 5 May 2015. At the conclusion of the hearing I allowed the appeal and varied the sentence imposed on the appellant. I gave brief reasons and said that more detailed reasons would be published in due course.
2 On 16 January 2015 the appellant was sentenced in the Magistrates Court at Midland to a total effective sentence of 13½ months' imprisonment. That sentence was imposed for an offence of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA), three offences of breaching bail by failing to appear contrary to s 51(1) of the Bail Act 1982 (WA), one offence of obstructing a police officer contrary to s 172(2) of the Criminal Code and the partial activation of suspended sentences of imprisonment for two driving offences. He sought leave to appeal against the total sentence and also, in particular, the sentence of 8 months' imprisonment that was imposed for the criminal damage offence.
3 The appeal notice was filed approximately one month out of time. The appellant's solicitor has filed an affidavit explaining the delay. The appellant sought legal aid for an appeal shortly after he was sentenced. Legal aid was initially refused but in late March 2015 it was granted following a reconsideration. The delay is relatively short and has been adequately explained. In these circumstances an extension of time was granted.
The facts
4 The facts of the offences were not disputed.
5 On 12 April 2014 the appellant attended at a Red Rooster restaurant in Henley Brook. He arrived at the restaurant at about 6.00 pm and appeared to be waiting outside the premises for several hours. He walked in and out of the shop without purchasing anything. At about 8.00 pm the appellant was standing near the main entrance when he took his shirt off and kicked four large glass windows that separate the seating area from the car park. This occurred in sight of a number of employees of the store. There was no suggestion that there were any customers present or anyone in the seating area. The windows were damaged and the value of that damage was $2,031.20. Police were called and the appellant was arrested at the scene. He declined to participate in an interview.
6 The appellant was released on bail but failed to appear as required on 12 May 2014. An arrest warrant issued and he subsequently appeared on 30 May 2014 and was again released on bail. He appeared again on 6 June 2014 on the damage charge and an adjournment for legal advice was granted. He then failed to appear on 20 June 2014 and an arrest warrant issued. Those two failures to appear resulted in the first two charges of breaching bail.
7 At about 1.15 pm on Friday 15 August 2014 the appellant was in Midland when he was spoken to by police in regard to another matter. The police officers became aware that there was an outstanding arrest warrant for the appellant. When informed that he was under arrest, the appellant struggled violently with the police and four officers were needed to place him into a police vehicle. He was conveyed to the Midland Police Station and continued to struggle as he was transferred to the cells. As a result of this conduct he was charged with obstructing a police officer in the performance of his functions.
8 Following his arrest on 15 August 2014 the appellant was remanded in custody until granted bail on 18 August 2014. He failed to appear on 14 October 2014 resulting in the third breach of bail charge. He was subsequently arrested and remanded in custody. He entered pleas of guilty to the charges on 31 October 2014 and a pre-sentence report and psychiatric report were ordered.
9 On 20 November 2013 the appellant had been sentenced to suspended terms of imprisonment for two driving offences. Those offences were reckless driving and driving without authority. For each of those offences he had been sentenced to 6 months and 2 weeks' imprisonment suspended for 12 months. The offences of criminal damage, breach of bail and obstructing a police officer were committed during the suspension period.
Defence submissions
10 On 19 December 2014 the appellant was represented by Legal Aid duty counsel. She made the following submissions on behalf of the appellant.
11 The appellant normally resides with his mother in Bassendean. He has three children, including a child who was 11 months old at the time. Although he lives separately from his partner he does support her financially. He also contributes financially to his mother's household and in support of his two older children.
12 The appellant was diagnosed some nine years ago with schizophrenia. The details of that illness will be referred to later in regard to the psychiatric report. As a result of the diagnosis the appellant was in receipt of a disability support pension. However, he had also engaged in some part-time work as a tiler.
13 The appellant's explanation for the damage offence was that at the time he was on the telephone to his partner. They were arguing and he became angry and frustrated. He could not explain why he became angry but it was submitted on his behalf that this needed to be viewed in light of his mental illness and ongoing substance abuse issues. In regard to the latter, the appellant admitted to using cannabis and methylamphetamine.
14 In regard to the breaches of bail it was submitted that the appellant had got his dates mixed up or had simply forgotten the requirement to attend. In regard to the obstruct charge, the appellant claimed that he asked why he was being arrested and that the officers would not tell him. He disputed the number of officers required to restrain him but accepted that his actions would have made their job more difficult.
The psychiatric report
15 Dr Mircea Schineanu provided a report dated 22 November 2014. In that report he stated that the appellant had been admitted to Graylands Hospital and to the Swan Mental Health Services for treatment as an involuntary patient under the Mental Health Act 1996 (WA). He was first admitted to Graylands Hospital between 7 February 2009 and 11 March 2009 and discharged on a community treatment order. He was diagnosed at this time with schizophrenia and poly-substance abuse. His last discharge from the Swan Mental Health Services Inpatient Unit was in 2011. At that time he was discharged on treatment with an injectable anti-psychotic. The appellant did not comply with the treatment and consequently was discharged on 30 October 2012. He had not been in contact with local Mental Health Services or received any other treatment since 2012.
16 Dr Schineanu stated that whilst the appellant was cooperative with his assessment, he avoided detailed descriptions of his mental experiences and symptoms. The appellant's insight into his mental illness and the need for treatment was assessed by Dr Schineanu as being poor. He diagnosed the appellant as suffering from chronic schizophrenia of a paranoid type that was in partial remission. He also had mental and behavioural disorders due to psycho-active substance use.
17 Dr Schineanu concluded as follows:
Mr Corpus was first diagnosed as suffering from psychosis about nine years ago. It was considered that his psychosis was caused by an underlying mental illness, schizophrenia, and by illicit drug use. He was treated with anti-psychotics as an involuntary inpatient under the Mental Health Act 1996 and as an out-patient under a CTO (community treatment order) under the Mental Health Act 1996).
Despite the mental recommendations, Mr Corpus has continued to use illicit drugs (cannabis and amphetamines). Since 2012 he has not been compliant with the treatment for his mental illness and he did not attend his appointments at Swan Mental Health Services. Consequently he was discharged from the clinic and with no further contact with any mental health services.
My assessment of Mr Corpus revealed that he was paranoid, his affect was restricted and he was guarded and evasive in providing details about his symptoms. The explanation for his presentation could be the residual symptomology of his underlying mental illness (schizophrenia) and the recent use of illicit drugs. (At the time of the assessment he has been in prison for less than three weeks).
Mr Corpus had admitted during the interview that after he ceased the anti-psychotic treatment he had become more paranoid and angry. This is consistent with the re-emergence of psychosis due to treatment non-compliance.
The court may be interested in whether there was an association between Mr Corpus' offences and his mental illness. In view of the above, I believe that the mental illness in his case was caused by a synergistic combination of drug use and schizophrenia. This would have had a negative impact upon his will, reasoning and behaviour prior to his charges.
18 Dr Schineanu assessed the appellant's risk of future violence as being low. However, he noted that factors such as substance abuse, unsupportive relationships and peer pressure could increase the risk of reoffending.
Magistrate's sentencing remarks
19 During duty counsel's sentencing submissions on 19 December 2014 the magistrate noted that the appellant's schizophrenia had been diagnosed 'years ago' and that the appellant had not complied with treatment and had continued to use illicit substances. His Honour said that the fact that the appellant's illness had been untreated for the last two years was 'through his choice, his actions, his resistance to treatment and his ongoing use of substances' (ts 5 - 6, 19/12/14). It was submitted by duty counsel that the appellant's non-compliance needed to be viewed in the light of the fact that he lacked insight into his own mental health.
20 The magistrate adjourned sentencing to 16 January 2015 for the purpose of obtaining the transcript of the sentencing for the driving offences. The reason for this was to determine whether the appellant's mental illness was a matter that had been taken into account when the suspended sentences were imposed. This was relevant in considering whether it was unjust to require those sentences to be served.
21 The transcript of those earlier proceedings has been obtained for the purposes of this appeal and it would seem that information regarding the appellant's psychiatric condition was not available at that earlier time. On 12 November 2013 the appellant appeared and was sentenced to two terms of 6 months and 2 weeks of immediate imprisonment. Submissions on behalf of the appellant were made at that time by duty counsel, but nothing was said regarding mental illness. Subsequently, on 20 November 2013, the magistrate brought the matter back to correct the sentences pursuant to s 37(1) of the Sentencing Act 1995 (WA). The correction was to order that both sentences be suspended for 12 months. His Honour said that the reason for the correction was that he had given further consideration to the matter, in particular the appellant's personal circumstances and the fact that the appellant's partner was to shortly give birth to their child (whether that was truly a correction may be doubted, but the issue was not raised on this appeal). Again, there was no reference to mental illness and no suggestion that any information in that regard was available at that time. By the time the correction was made the appellant had served eight days of the sentences.
22 The transcript of the earlier proceedings was not, however, available to the magistrate on 16 January 2015. His Honour decided to proceed, though he acknowledged that he could not determine whether the appellant's psychiatric condition had been taken into account when the suspended sentences were imposed. The magistrate then turned to consider the relevance of the psychiatric illness to the 2014 offences. In this regard he said:
You were prescribed treatment but it would seem that since 2012 you haven't been compliant with that treatment. It says here you did not comply with the treatment and the following arrangements and, consequently, you were discharged from Swan Clinic 30 October 2012. Since 2012 you have not been in contact with local mental services and have been without treatment. It's an unfortunately all too common situation in this court, Mr Corpus, where there are issues of mental illness, noncompliance with treatment combined with ongoing illicit drug use and that's exactly what's happened here. And, really, in those circumstances without you taking action in terms of treatment, ceasing drug use, your chances of reoffending were extremely high indeed. You had services available in the community that you could have gone to to seek assistance in both regard to your mental health issues and substance abuse.
That didn't occur, you continued on yourself on a path that, it's no surprise, has lead you to now being a criminal today (ts 16.1.15, page 5).
23 By 16 January 2015 the appellant had spent 85 days in custody. The magistrate concluded that it was not unjust to activate the suspended sentences, however there is no power to backdate those sentences to take into account the time in custody: Dragon v The State of Western Australia [2008] WASCA 252. Accordingly, his Honour decided to reduce the activated suspended sentences by three months in order to give credit for that time in custody.
24 The magistrate also took into account the appellant's pleas of guilty. The pleas were not entered at the earliest opportunity and there were delays caused by the failure of the appellant to appear at court and these factors reduced the discount. His Honour concluded that the appropriate discount was one of 15%. His Honour said that he would also take into account the principle of totality.
25 The magistrate imposed the following sentences. For the offences of reckless driving and driving without authority the suspended imprisonment orders were cancelled and the sentences of 6½ months in each case were reduced by 3 months to take into account the time in custody. Accordingly, the appellant was ordered to serve 3½ months of each of those sentences, the second to be served concurrently. For the breaches of bail committed on 12 May and 20 June 2014 the appellant was sentenced to 1 month's imprisonment on each concurrent. For the offence of obstructing a police officer the appellant was sentenced to 3 months' imprisonment concurrent. For the third breach of bail committed on 14 October 2014 the appellant was sentenced to 2 months' imprisonment cumulative. Finally, for the criminal damage offence there was a sentence of 8 months' imprisonment cumulative. The magistrate stated that this resulted in a total effective sentence of 14½ months' imprisonment, but in fact the total is 13½ months' imprisonment. An order was made that the appellant be eligible for parole.
Grounds of appeal
26 The grounds of appeal are as follows:
1. The learned sentencing Magistrate erred in sentencing the appellant to a sentence of immediate imprisonment, in circumstances where:
i. the offences committed during the suspension period of the suspended imprisonment previously imposed upon the appellant were of a different nature to those for which he was sentenced to suspended imprisonment, and did not of themselves warrant a sentence of imprisonment; and
ii. the appellant's mental illness causally contributed to his offending.
2. The learned sentencing Magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.
3. The learned sentencing Magistrate erred in imposing a sentence for the offence of criminal damage which was, in all of the circumstances, manifestly excessive.
Ground 1 - Was it unjust to activate the suspended sentences?
27 Although not framed in this way, this ground was argued at the appeal hearing essentially on the basis that it was unjust to activate the suspended sentences. It was submitted that the magistrate erred in reaching a contrary view because that view failed to take into account the nature of the breaching offences and the appellant's mental illness.
28 Section 80 of the Sentencing Act provides for a range of ways in which a court may deal with a breach of sentence by reoffending. However the court's discretion is confined by s 80(3) which provides that a court must make an order that the sentence be served unless it decides that it would be unjust to do so in all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. This directs attention to changes in the circumstances of the offender since the suspended sentence was imposed, but also to relevant factors that may have existed at the time but, for some reason, were not taken into account in imposing the suspended sentence: Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [20].
29 Other factors that may be considered when deciding whether or not to activate a suspended term of imprisonment include the nature and seriousness of the reoffending, including whether the reoffending was 'trivial' in nature, whether the reoffending itself warranted a term of imprisonment and whether the reoffending occurred late in the suspension period: Hall v The Queen [33].
30 An important consideration in considering where the justice of a case lies in the context of s 80 is the legislative policy that prima facie the court ought to order service of the suspended imprisonment. It must be recognised that a sentence of suspended imprisonment is only imposed where a term of imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to lead a law-abiding life. Such a sentence is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways: Hall v The Queen [34] citing R v Marston (1993) 60 SASR 320, 322.
31 It is for the appellant to demonstrate that the sentencing magistrate erred in failing to decide that it would be unjust to order service of part of the suspended terms. If, after having regard to all the circumstances of the kind described in s 80(3), an appellate court considers that it was open to the magistrate to decide that an order for service of suspended imprisonment would not be unjust then the appellant will have failed to demonstrate that the ground of appeal has been made out: Hall v The Queen [31].
32 In the present case the factors that had arisen or become known since the suspended term was imposed were that the appellant suffered from chronic schizophrenia and that he had served a period of three months in custody whilst awaiting sentence. As to the second factor, the magistrate clearly accepted that this would make it unjust to require the appellant to serve the full period of six months and two weeks. His Honour therefore reduced the term to take into account that time.
33 As to the existence of a psychiatric illness, as I have noted above, this was not a factor that was taken into account at the time the suspended sentence was imposed. Since the transcript of those earlier proceedings was not available to his Honour that factor was not something that he considered in assessing whether it was unjust to require that the suspended sentence or any part of it be served. It is, however, likely that this factor would not have affected the magistrate's decision given his negative view of the appellant's attitude to treatment.
34 In my view, whilst the existence of the psychiatric condition was relevant in considering whether it was unjust to active the suspended sentences it is unrealistic to consider that issue in isolation. For reasons which I will expand upon in respect of the following grounds, I consider that whilst the psychiatric condition had some mitigatory value which justified a reduction in the total effective sentence imposed, it was not such as to lead to a conclusion that it would be unjust to active the suspended sentence. Accordingly, whilst I granted leave in respect of ground 1 that ground did not succeed.
Ground 2 - Totality
35 The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246. It comprises two limbs. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb requires that the total effective sentence not be crushing. The appellant relies only upon the first limb.
36 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. Where the principle of totality comes into effect it is of little importance how the aggregate is made up. It can be given effect to either by reducing individual sentences or making some sentences concurrent, or both.
37 The magistrate made reference to the totality principle and it can be assumed that it was this that caused him to order that a number of the sentences be served concurrently. The question that remains is whether the total effective sentence of 13½ months' imprisonment is one that is disproportionate to the total offending. It is also important to bear in mind that because credit was given for time in custody rather than the sentence being backdated, the sentence imposed was equivalent to one of 16½ months.
38 Other than the arguments raised in respect of grounds 1 and 3, the appellant does not submit that the individual sentences were outside the appropriate discretionary range. Rather it is submitted that having regard to the circumstances of the offences and the personal circumstances of the appellant that the total effective sentence was disproportionate to the overall criminality. This is said to be particularly so having regard to the appellant's pleas of guilty and his psychiatric condition.
39 It is important to view this series of offences in light of the appellant's psychiatric condition. His schizophrenia is chronic and has been sufficiently severe in the past to result in him being admitted as an involuntary patient. Whilst it appears that the appellant's mental health has been exacerbated by his use of illicit drugs, the psychiatric report indicates that the schizophrenia is an underlying condition. Accordingly this is not a case where voluntary ingestion of drugs is the sole cause of mental illness. The psychiatric report also makes clear that the appellant's schizophrenia, as well as his drug use, was likely to have interfered with the appellant's reasoning and behaviour at the time of the offences. In this sense it was a causative factor and relevant in sentencing. The report also states that the appellant lacks insight into his mental illness.
40 Mental illness can be relevant in sentencing in a number of different ways. The issue has been considered in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125, Krijestoric v The State of Western Australia [2010] WASCA 35, Wheeler v The Queen [No 2] [2010] WASCA 105 and Gok v The Queen [2010] WASCA 185. Those cases cite with approval R v Tsiaras (1996) 1 VR 398 in which case Charles and Callaway JJA and Vincent AJA said of mental illness:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner that it would on a prisoner in normal health (400).
41 The magistrate took the view that because the appellant had been non-compliant with treatment and had resorted to illicit drugs despite advice not to do so, the mitigatory value of his psychiatric illness was significantly reduced. With respect, this assumes that the appellant's decision not to continue treatment was made with a full understanding of the consequences. The difficulty with attributing the ability to make reasoned decisions to those suffering from a significant psychiatric illness is self-evident. In any event, Dr Schineanu noted that the appellant had poor insight into his own condition. It is clear from the magistrate's sentencing remarks that he considered that relatively little mitigatory value could be derived from the appellant's psychiatric condition in light of his non-compliance with treatment and decision to use illicit drugs. In my view those comments significantly undervalued the weight to be attributed to this factor.
42 However, weighting errors are not in themselves relevant unless it is established that the total effective sentence imposed evidences an error in discretionary decision-making. In my view the total effective sentence imposed is inconsistent with proper regard being given to all of the circumstances, including those personal to the appellant.
43 The appellant's schizophrenia provides some explanation for the offending behaviour. The adverse effect upon his judgment is apparent in the circumstances of the damage offence and the offence of obstructing a public officer. To treat the appellant as if he was a person who was able to make entirely rational and considered decisions about his treatment and his behaviour was unjust. Deterrence both personal and general were of reduced importance in respect of the appellant having regard to his chronic schizophrenia. To the extent that his behaviour was caused by his illness, sentences of immediate imprisonment were unlikely to facilitate change.
44 On the other hand it must be recognised that the appellant's illness was not of such severity as to deprive him of the ability to understand what he was doing or that it was wrong. Furthermore, the appellant's voluntary use of illicit drugs also had a contributing affect on his behaviour and this was not a mitigating factor. In these circumstances, whilst the schizophrenia was a relevant and important consideration that would justify the sentences being reduced, it was not of such weight as to justify a non-custodial sentence.
45 Leave in respect of this ground was granted. The appeal was allowed and the appellant resentenced in the manner referred to in the conclusion below.
Ground 3 - The damage charge
46 This ground asserts that the 8 month sentence of imprisonment imposed in respect of the criminal damage charge is manifestly excessive.
47 A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive it is necessary to view it in respect of the maximum penalty prescribed by law for the offence, the standards of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of the type and the personal circumstances of the offender.
48 What must be demonstrated is that the sentence falls outside the range available in the sound exercise of sentencing discretion. An appellate court must have regard to the fact that the sentencing function is discretionary in nature: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336.
49 The maximum penalty for an offence of criminal damage is 10 years' imprisonment. The maximum available when dealt with summarily is 3 years and/or $36,000, however that is the jurisdictional limit rather than the maximum penalty to be considered in determining the seriousness of the offence.
50 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. In the present case the appellant's offence was not planned or premeditated but rather occurred in what appears to have been a fit of rage. It is not clear whether the windows were completely shattered and there was no suggestion that anyone was endangered by the appellant's conduct, nonetheless the cost of the damage was not trivial.
51 The appellant's personal circumstances have been referred to extensively earlier in these reasons. His behaviour is likely to have been affected by his underlying schizophrenia. Whilst this did not excuse that behaviour, it was a significant mitigating factor.
52 A sentence of 8 months' imprisonment to be immediately served would appear to be a severe sentence for this offence in all of the circumstances, in particular those personal to the appellant. However, it would be artificial to view that sentence in isolation. Where an offender is sentenced in respect of a number of offences at the same time the severity of the sentence for one offence may be offset by a more lenient sentence in respect of another offence. The real issue in this case is not the sentence imposed for the damage offence but whether the total effective sentence was an appropriate reflection of all of the relevant circumstances including those personal to the appellant. Given that I have come to the conclusion that ground 2 should be allowed it is unnecessary to determine ground 3.
Conclusion
53 For the reasons I have given I allowed this appeal in respect of ground 2 and resentenced the appellant. In order to give appropriate weight to the appellant's psychiatric condition the total sentence was reduced by 4 months producing a total effective sentence of 9½ months' imprisonment. I achieved that result by reducing the sentence on the criminal damage charge to 4 months' imprisonment.
54 I made the following orders:
1) Extension of time to appeal granted.
2) Leave to appeal granted.
3) The appeal is allowed in respect of ground 2.
4) The sentence imposed by the learned magistrate is varied by setting aside the sentence of 8 months' imprisonment imposed for the criminal damage charge and substituting a sentence of 4 months' imprisonment cumulative, the other sentences being unaffected.
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