Durward v Clark
[2013] WASC 468
•20 DECEMBER 2013
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 RespondentTRISTAN BELTON
Second RespondentTAMARA NINA VIDEMANIS
Third RespondentHAYLEY ANN BURKE
Fourth RespondentBRETT 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 on 15 April 2013 and transferred to the Frankland Centre on 2 May 2013 where he remained as an involuntary patient until 19 June 2013. He was granted bail on 19 June 2013 to enable him to be transferred as a voluntary patient, but with strict conditions of bail for his treatment.He was still in Graylands on 17 July 2013 at the time of sentencing and was in fact sentenced via video link.
It must be said that the sentencing exercise confronting the magistrate was one of complexity and the magistrate approached the task with fairness and compassion. He imposed no further penalty in relation to many offences and a 12 month intensive supervision order (ISO) in relation to five offences, the most serious of which was assaulting a public officer.
The magistrate was aware that the appellant had spent 205 days in custody. He said the best way to look at it was as a global period of offending rather than assign days to certain offences.
As the imposition of an intensive supervision order the magistrate said:
[I]t still becomes a criminal justice issue because of the type of his offending and therefore the court should be informed one way or another if he breaches and that is we can't [have] him assaulting public officers.
If he does that, that should come back. It's not entirely a question of his mental health treatment. There is also a need to protect the community.
The magistrate further continued:
[I] think he needs supervision. The downside of that is whether he can actually comply, but simply to let him out and hope for the best, I appreciate your suggesting Mental Health orders or control, is probably not the best. So without the full psychiatric assessment, I'm not entirely sure what his situation is.
...
[B]ut it's the main criminality - or the more serious offences is the assault on the public officers and so forth. I believe for that he will need some degree of supervision in the community (ts 12 ‑ 13).
The magistrate, correctly, was reluctant to impose fines. The appellant has no real income and has an outstanding amount of $4,278.95 in fines owing with no time to pay arrangements. The magistrate concluded:
[Mr] Durward offends a lot, which is something that we're trying to discourage, but at the same time, the consequences of him offending because of his breach of bail is that he spends a lot of time in custody, which is something he doesn't want. So, I think the way to go then is Mr Durward have supervision so we avoid both problems.
So, the idea is now, bearing in mind the amount of time you've spent in custody, which is something I take into account in imposing any punishment or any sentence, I should say that's fine, what we're now trying to do, because of the time you've spent in custody, upon your release, is to stop you from getting back into that cycle of reoffending because if you do you'll end up back where you are (ts 16 ‑ 17).
The ground of appeal
The sole ground of appeal is:
(1)The sentence imposed of 12 months intensive supervision order imposed on several charges was an inappropriate penalty in all the circumstances of the case, and particularly having regard to:
(a)time spent in custody; and
(b)the appellant's mental condition.
The principles of sentencing
The Sentencing Act 1995 (WA) s 6(1):
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account ‑
…
(d)any mitigating factors.
Section 8(1):
(1)Mitigating factors are factors, which in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
Ms Farley agreed that the appeal revolved around the most serious offence, assaulting a public officer performing a function of his office.
If an ISO was appropriate for that offence, there is no benefit in setting aside the concurrent ISOs. If inappropriate for the most serious offence the other ISOs have to fall.
The facts were outlined:
[A]t the Perth train station on Wednesday 15 August 2012, at 6.55 pm, the accused was using obscene language in a loud clear voice at the front of the Perth train station and several members of the public were present and shouting out:
Fuck you, you're dead. I am in the IRA. I'm head of the IRA, you cunt.
And there's similar other threats, your Honour. Transit officers approached him. He's been asked to stop. He refused to and eventually placed under arrest. Whilst he was being restrained, he hit Transit Officer Rowe in his right forearm on at least two occasions causing pain and discomfort.
All assaults, even minor assaults, on public officers carrying out a function of their duties are serious, even if the actual injury is minor, as in this case.
There are two important matters of mitigation.
Mental illness
In Krijestorac v State of Western Australia [2010] WASCA 35.
So far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v R [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v R [2005] WASCA 223; (2005) 157 A Crim R 385. Counsel for the appellant also drew the court's attention to the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269. That case contains a useful survey of decisions from a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] 1 VR 398 and applied in a number of Australian jurisdictions since that date continue to apply. They are that a mental or psychological condition falling short of insanity may be relevant to sentencing in a number of 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. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. [Verdins at [1], quoting Tsiaras).
Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence
The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that paras (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State [17] ‑ [19].
The appellant was almost certainly suffering from schizophrenia at the time of offending. All the matters enumerated in Verdins are applicable.
205 days spent in custody
The magistrate's commendable desire to provide supervision to the appellant on his return to the community caused him to lose focus on the criminality of the offences and the other mitigating factor. The appellant had already spent nearly seven months in custody which would equate to a seven month non‑parole period of a 14 month sentence.
Had he pleaded guilty without such a background of time spent in custody, it is unlikely that he would have received a term of immediate imprisonment. The term of suspended imprisonment for breach of a move on notice was overturned on appeal. The other offences did not warrant imprisonment either at all or certainly not for 7 months. Ms Markham, fairly, did not suggest otherwise.
An ISO is a punishment. It is a sentencing option under the Sentencing Act s 39. Indeed it is one of the more serious sentencing options available.
This brings me back full circle to the decision in Clarke.
The offences committed by the appellant are nuisance and public order offences. They are no doubt significantly influenced by his schizophrenia. There is an available regime to deal with mental health issues under the Mental Health Act 1996 (WA) including treatment of involuntary patients within the community Pt 3, div 3. A community treatment order can be made. It is not the role of the court to fill inaction in a mental health regime especially when the result is to impose a punishment, which is, in the circumstances manifestly excessive. That is what has occurred despite the best efforts of all concerned.
Orders
I allow the appeal. I set aside each intensive supervision order and in lieu impose no penalty.
By that date, 19 June 2013, he was responding positively to medication and his symptoms were improved.
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