Durward v Clark - [2013] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DURWARD -v- CLARK [2013] WASC 468

CORAM: McKECHNIE J

HEARD: 10 DECEMBER 2013

DELIVERED : 20 DECEMBER 2013

FILE NO/S: SJA 1090 of 2013

BETWEEN: MICHAEL GARY DURWARD
Appellant
AND
RICHARD PETER CLARK
First Respondent
TRISTAN BELTON
Second Respondent
TAMARA NINA VIDEMANIS
Third Respondent
HAYLEY ANN BURKE
Fourth Respondent
BRETT CAMERON WHEATLEY
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K M TAVENER
File No  :PE 19017 of 2013, PE 33993 of 2012, PE 40213 of 2012, PE 36680 of 2012, PE 46511 of 2012

Catchwords:

Criminal law and procedure - Sentencing - Intersection of mental health issues - Whether ISO appropriate when offender has spent time in custody

Legislation:

Mental Health Act 1996 (WA)
Sentencing Act 1995 (WA), s 8, s 9, s 39

Result:

Appeal allowed
Intensive supervision order set aside
No penalty imposed

Category: B

Representation:

Counsel:

Appellant:     Ms K J Farley SC
First Respondent           :     Ms S Markham
Second Respondent       :     Ms S Markham
Third Respondent         :     Ms S Markham
Fourth Respondent        :     Ms S Markham
Fifth Respondent          :     Ms S Markham

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)
Third Respondent         :     Director of Public Prosecutions (WA)
Fourth Respondent        :     Director of Public Prosecutions (WA)
Fifth Respondent          :     Director of Public Prosecutions (WA)

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

Durward v Belton [2012] WASC 479
Krijestorac v State of Western Australia [2010] WASCA 35
R v Clarke (1975) 61 Cr App R 320

McKECHNIE J: In 1975 Lawton LJ said:
[H]er Majesty's courts are not dustbins into which the social services can sweep difficult members of the public. Still less should her Majesty's judges use their sentencing powers to dispose of those who are socially inconvenient.[1]
[1] R v Clarke (1975) 61 Cr App R 320, 323.
Lawton LJ was giving judgment in an appeal of a 23‑year‑old woman who had received an 18 month sentence of imprisonment for breaking a flower pot in a fit of temper and doing damage to the extent of one pound.
The present case is not quite of that category, but the principle remains true.
The appellant is 25years old. He has been diagnosed with a mental illness, undifferentiated schizophrenia. Dr Wojnarowska was of the opinion that schizophrenia‑disorganised type has been undiagnosed for a period in excess of three years. That period broadly corresponds with his criminal history.
On 17 July 2013, the appellant appeared in the Magistrates Court for sentence on 21 offences. One of those sentences included a resentencing following a successful appeal: Durward v Belton [2012] WASC 479 (PE 33993/12).
By the time the appellant came to be sentenced he had spent 205 days in custody.[2]
[2] He was in custody from 28 September 2012 to 16 January 2013 when he was released on bail and further offended. The appellant was taken back into custody…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Durward v Clark

Details

AGLC: Durward v Clark [2013] WASC 468
Case: [2013] WASC 468
Decision Date: 20 DECEMBER 2013

CaseChat Overview and Summary

In the matter of Durward versus Clark, the defendant Durward was sentenced by the Supreme Court of Victoria. The case involved the intersection of mental health issues and the appropriateness of an Interim Supervision Order (ISO) when the defendant had already spent time in custody. The central issue before the court was whether the defendant's mental health condition and prior detention warranted the imposition of an ISO. Specifically, the court needed to determine whether an ISO was an appropriate response to the defendant's circumstances, considering his mental health issues and the time already spent in custody.

The court examined the relevant statutory framework and case law to assess the suitability of an ISO. The legal principles at play included the need to balance the defendant's rights with the protection of the community, as well as the objectives of rehabilitation and deterrence. The court also considered the defendant's history of mental health issues and the potential benefits of continued supervision and treatment. Ultimately, the court found that an ISO was not necessary given the defendant's prior detention and the available support services. The court reasoned that continued detention was not warranted and that the defendant's mental health could be adequately managed through existing community support mechanisms.

The Supreme Court of Victoria ruled that an Interim Supervision Order was not appropriate in this case. The court determined that the defendant's time spent in custody and the availability of community-based mental health services provided sufficient oversight and support. The court's decision emphasised the importance of tailoring sentencing to the individual circumstances of the offender, particularly when mental health issues are involved. The court concluded that an ISO would not serve the objectives of rehabilitation or provide additional benefits beyond what was already available. The final orders of the court reflected this decision, and no further supervision orders were imposed.

Orders