Fox v Vinicombe
[2016] WASC 349
•28 OCTOBER 2016
FOX -v- VINICOMBE [2016] WASC 349
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 349 | |
| Case No: | SJA:1078/2016 | 25 OCTOBER 2016 | |
| Coram: | ALLANSON J | 28/10/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on grounds 1 and 2 granted Appeal on grounds 1 and 2 allowed Sentences of imprisonment set aside Leave to appeal on ground 3 refused Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | AUSTIN JAMES FOX DAVID JAMES VINICOMBE |
Catchwords: | Criminal law Appeal against sentence Whether suspended sentences should have been activated Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 80 |
Case References: | Baudoeuf v Venning [2010] WASC 322 Brown v The State of Western Australia [2009] WASCA 74 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 House v The King [1936] HCA 40; (1936) 55 CLR 499 Stewart v Waghorn [1999] WASCA 150 Trew v The State of Western Australia [2004] WASCA 155 Waymouth v Chrisp [2000] WASCA 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DAVID JAMES VINICOMBE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 45935 of 2015, PE 51687 of 2015, PE 23671 of 2016
Catchwords:
Criminal law - Appeal against sentence - Whether suspended sentences should have been activated - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 80
Result:
Leave to appeal on grounds 1 and 2 granted
Appeal on grounds 1 and 2 allowed
Sentences of imprisonment set aside
Leave to appeal on ground 3 refused
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr G W Massey
Respondent : Mr J L Winton
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Baudoeuf v Venning [2010] WASC 322
Brown v The State of Western Australia [2009] WASCA 74
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
House v The King [1936] HCA 40; (1936) 55 CLR 499
Stewart v Waghorn [1999] WASCA 150
Trew v The State of Western Australia [2004] WASCA 155
Waymouth v Chrisp [2000] WASCA 89
1 ALLANSON J: The appellant, Austin James Fox, was convicted on 22 December 2015 of two counts of driving while unauthorised, his licence then being suspended. The offences were committed on 19 September and 21 October 2015.
2 The convictions imposed on 22 December 2015 were the appellant's fourth and fifth convictions for driving while disqualified. His record of offending began on 24 February 2015 when he was convicted of reckless driving and disqualified for 6 months. The appellant drove while disqualified on 26February, 11 March, and 4 May. He was also convicted for reckless driving, committed on 26 February 2015, two days after he was disqualified from driving for a similar offence.
3 On 22 December 2015, the magistrate imposed concurrent terms of imprisonment of 6 months and 1 day on each charge, suspended for 12 months. On 26 April 2016, the appellant again drove while disqualified. He pleaded guilty on 29 September 2016. The sentencing magistrate ordered that he serve the term of imprisonment that had been suspended (but for one day) and imposed a cumulative sentence of imprisonment for 3 months for the most recent offence, resulting in a total effective sentence of 9 months' imprisonment.
4 The appellant applies for leave to appeal from the sentence and order of 29 September 2016. Under s 8 of the Criminal Appeals Act 2004 (WA), an appeal may be made on grounds that the magistrate imposed an excessive sentence, or that there has been a miscarriage of justice. In an amended notice of appeal, the appellant applies on three grounds:
1. The learned Chief Magistrate erred in law in ordering that the appellant serve the term of imprisonment of 6 months which had been ordered to be suspended on 22 December 2015 in respect of charges PE 45935/15 and PE 51687/15
Particulars
(i) The medical circumstances of the appellant, which had only become known since the suspended term of imprisonment was imposed, made it unjust to order the term of suspended imprisonment to be served
and further erred in law in sentencing the appellant to a term of 3 months imprisonment to be served immediately in respect of charge PE 23671/16.
2. The learned Chief Magistrate erred in law in imposing a term of imprisonment to be immediately served in respect of charge PE 23671/16.
Particulars
(i) The learned Chief Magistrate failed to give any weight or sufficient weight to the medical circumstances of the appellant;
(ii) The learned Chief Magistrate failed to give any weight or sufficient weight to the changes in the appellant's circumstances since he had been sentenced to 22 December 2015.
3. The learned Chief Magistrate erred in law by imposing a term of imprisonment to be served cumulatively in respect of charge PE 23671/16.
Particulars
(i) Such a sentence was, in all the circumstances, manifestly excessive.
5 Under s 80 of the Sentencing Act 1995 (WA), the sentencing magistrate had four options:
(a) to order the appellant to serve the terms of imprisonment that were suspended;
(b) to order him to serve part of those terms;
(c) to substitute another suspension period;
(d) to fine him not more than $6,000 and make no order in respect of the suspended imprisonment.
6 By s 80(3), the magistrate was required to order that the appellant serve the terms that were suspended unless he decided 'that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed'.
7 Sentences of imprisonment are commonly, and properly, imposed for repeated offences of driving while under disqualification. In a plea in mitigation, counsel for the appellant relied on various matters that might avoid that outcome:
(1) the appellant's youth;
(2) the frequency of offending had diminished;
(3) the circumstances of the offence;
(4) the appellant has committed no offences other than these traffic offences, and has been always employed;
(5) two circumstances in the appellant's life: first, his reaction to his grandmother's death in 2013; second, in the earlier offending (but not the latest offence) the appellant had been using steroids which had made him prone to impulsive rage;
(6) the appellant had sought the assistance of a psychologist and ceased steroid use;
(7) the appellant had consulted Dr Febbo, Consultant Psychiatrist, and had now been diagnosed with attention deficit hyperactivity disorder and bipolar disorder, as well as a significant personality pathology; and
(8) the appellant had put things in place in his life to avoid the risk that he would again drive.
8 As counsel recognised, the psychiatric diagnosis and most recent psychological assessment were critical, as facts that had become known since the suspended imprisonment was imposed. Dr Febbo described the conditions he had diagnosed as a significant factor that facilitated the offending. He proposed possible treatment, including the use of a mood stabiliser and the consideration of non-stimulant treatment for the ADHD. The appellant had only seen Dr Febbo on 1 September 2016, and his report was dated 20 September 2016, approximately a week before the hearing.
9 The appellant also relied on a report dated 16 September 2016, from Ms Tanya Chiplin, Consulting Psychologist. The appellant had previously consulted with Ms Chiplin and had also resumed counselling in June 2016.
10 In sentencing, the learned magistrate referred to the appellant's history of offending, and the circumstances of the most recent offence. He referred also to changes in the appellant's employment, and steps he had taken to avoid re-offending. His Honour obviously accepted the opinion expressed by Dr Febbo. In particular, referring to Dr Febbo's diagnosis of the conditions that contributed to the offending, his Honour said:
[T]hat then means that your culpability in relation to the offences is somewhat less, in terms of sentencing. That those conditions certainly make you far more impulsive, and this was an offence that appears to have been impulsive in nature. Unfortunately, it would suggest also that the prior offences were also occasioned by that impulsive nature.
11 His Honour referred to the appellant's earlier commitment to treatment, and also that he had ceased to use steroids. He continued:
The obvious issue for me is whether that development, the stabilising and supporting factors of your family and the treatment that are now in place, your assurance that you will continue with the counselling and other treatment is sufficient that I should not activate the sentence. In my view, although those are factors that are relevant, they are not such that you should not be required to serve the suspended term. It was offending of exactly the same nature.
Grounds 1 and 2
12 Ground 1 challenges both the decision to order the suspended term to be imposed and the decision to order imprisonment, to be immediately served, for the most recent offence. The appellant submits, having regard to the medical circumstances which had only become known since the suspended terms were imposed, that it was both unjust to order that he serve the suspended terms and an error of law to impose a sentence of imprisonment to be served immediately. Ground 1 overlaps to a large extent with ground 2, which asserts error in failing to give any or sufficient weight to the appellant's medical circumstances and changes in circumstances since he had been sentenced on 20 December 2015 when imposing the term of immediate imprisonment.
13 The principles applicable to sentencing on breach of a suspended imprisonment order were not in dispute. The court must consider all material circumstances, including the period of suspended imprisonment and the circumstances of the offence for which that sentence was imposed, the nature of the offence which gave rise to the need to consider whether to activate the suspended sentence, and when it occurred within the period of suspension: see Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364; Trew v The State of Western Australia [2004] WASCA 155; and Brown v The State of Western Australia [2009] WASCA 74. The legislative policy revealed in s 80(3) is that, prima facie, the court is to order that the suspended term be served: see Hall v The Queen [34].
14 Counsel for the respondent submitted, correctly, that in this appeal the appellant carries the forensic onus to persuade the court that the sentencing magistrate erred in failing to decide that it would be unjust to order service of the suspended period of imprisonment. The respondent submits that the appellant relies on implied error, and the question is not whether this court would have arrived at the same decision but whether it was not open to his Honour to do what he did.
15 The appellant relied on Stewart v Waghorn [1999] WASCA 150, where Miller J considered the impact of a previously undiscovered diagnosis of ADHD on sentencing for multiple driving whilst under suspension offences. In a later judgment, his Honour explained the principle behind his decision in Stewart v Waghorn: where a defendant has committed a long series of offences not knowing his true mental condition, discovery of that condition and intensive treatment for it may well be a factor in the ultimate disposition of the matter otherwise than imprisonment: Waymouth v Chrisp [2000] WASCA 89 [16].
16 The appellant referred also to Baudoeuf v Venning [2010] WASC 322 [49], where Heenan J referred to the relevance of psychological or psychiatric conditions to the culpability of an offender, and the severity of the penalty which might otherwise be imposed. His Honour stressed the importance of rehabilitation of young offenders and individualisation of approach for an offender in need of psychiatric treatment. Heenan J continued:
I am also satisfied that these considerations apply to a decision whether or not it is unjust to activate a suspended sentence of imprisonment in the event of a subsequent offence breaching the terms or conditions of that earlier sentence. One of the issues is whether or not the conduct in breach of the terms of the suspended sentence itself warranted punishment by imprisonment - see Brown v The State of Western Australia [2009] WASCA 74, [30] - [33] and Salkilld v The State of Western Australia [2010] WASCA 22. See also R v Ferguson [2002] WASCA 92 [51].
17 There can be no doubt that the sentencing magistrate took the psychiatric and psychological evidence into account in relation to the appellant's culpability. But that was not its only relevance in sentencing. The appellant relies upon an error in the failure of the magistrate to properly have regard to the only recent discovery of the appellant's true mental condition, and that at the time of the offending and when he came to be sentenced the appellant had not yet commenced treatment.
18 It is well accepted that an appeal court does not scrutinise the reasons given by magistrates with an eye keenly attuned to the identification of error. Of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts. I am satisfied, however, that his Honour's comments reveal error. First, the reference to treatment 'now in place' and the appellant's assurance that he will 'continue' with treatment do not take into account that the diagnosis of the appellant's psychological and psychiatric condition had not been made before the most recent offence, and treatment had not commenced. The steps that had earlier been taken were not informed by the psychiatric diagnosis. Second, the fact that the appellant's most recent offence was of exactly the same nature as the earlier offending does not detract from the importance of the underlying psychiatric condition.
19 On an appeal against failure to suspend imprisonment, the appellant may show error if he can demonstrate that the sentence imposed is unreasonable or unjust. This requires the appellant to establish that the type of sentence imposed, imprisonment to be served immediately, was not reasonably open in the exercise of a sound discretionary judgment. An appellate court may also intervene if it is apparent that the primary court has acted upon a wrong principle or taken into account extraneous or irrelevant matters or may have mistaken the facts or not taken the relevant matters into account: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324, 339 - 340; House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
20 In the present case, I am satisfied that the same considerations apply to the decision to order that the term of imprisonment be served immediately and to the decision to order that the appellant serve the terms that had previously been suspended. Once it is appreciated that the appellant's psychological and psychiatric condition had only recently been identified, and had not yet been treated, there is an important relevant factor to take into account in determining the proper sentence. In my opinion, his Honour failed to take this relevant matter into account.
21 I am satisfied that the appellant has made out grounds 1 and 2. Leave should be granted, the appeal allowed and the sentence of imprisonment on each of PE 45935/15, PE 51687/15, and PE 23671/16 should be set aside. The orders disqualifying the appellant from holding or obtaining a driver's licence are not affected.
Ground 3
22 The appellant did not press ground 3. There was no error in imposing a cumulative sentence for an offence committed four months after the suspended imprisonment order was made. The total effective sentence of 9 months was well within the range of a sound exercise of discretion. Leave should be refused for ground 3.
Sentence
23 The options for dealing with the breach of the suspended imprisonment order all remain open as the period of suspension has not expired. For the reasons I have given, I believe the public interest is best served by a sentence which promotes the treatment of the appellant's psychiatric and psychological conditions. There is an important public interest in the rehabilitation of a young offender. The appellant has, with the support of his family and girlfriend, already taken some steps. But on the report of Dr Febbo, more is required. I have considered whether this court should resentence, using the option not available to the sentencing magistrate of an order for conditional suspended imprisonment. I am not satisfied, however, that this option is open when dealing with the matter under s 80.
24 For the offences which are the subject of charges PE 45935/15 and PE 51687/15, I will set aside the sentence of immediate imprisonment and substitute a suspension period of 12 months, starting from today. That substituted period applies for the sentence originally imposed of 6 months and 1 day.
25 In resentencing on PE 23671/16, the sentence will be imprisonment for 8 months. In setting that term, I have had regard to the time served in custody awaiting this appeal. The term of imprisonment will be suspended. I will not impose conditions. The period of suspension will also be 12 months, starting today. The effect of the orders is that should the appellant commit an offence, the statutory penalty for which is or includes imprisonment, within the next 12 months he will be liable to be imprisoned for 8 months.
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