Fulton v Bland

[2013] WASC 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   FULTON -v- BLAND [2013] WASC 218

CORAM:   McKECHNIE J

HEARD:   30 MAY 2013

DELIVERED          :   30 MAY 2013

FILE NO/S:   SJA 1151 of 2012

BETWEEN:   GAY FULTON

Appellant

AND

MONIQUE FRANCES BLAND
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE C D ROBERTS

File No  :BM 2171 of 2012

Catchwords:

Criminal law - Sentencing - Fine of $500 for disorderly behaviour - Mentally ill offender - Fine said to be 'nominal' - Whether excessive - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Ms A Preston-Samson

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

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

KSB (A Child) v The State of Western Australia [2004] WASCA 296

Wungundin v Barndon [2013] WASC 28

1. McKECHNIE J:  On 7 September 2012 Ms Fulton tried to have herself admitted to hospital in Broome as she was feeling suicidal and had not received her medication for schizophrenia.  The hospital released her with no concerns for her mental health.  As she left the hospital she told a nurse she was going to go out and commit a crime.  Suiting the action to the words, she walked straight into the Shell Service Station, waited for customers to leave, went to the cashier and said, 'This is a stickup'.  The cashier said, 'That's not funny'.  Ms Fulton again said, 'This is a stickup'.  She said nothing further and at one point the cashier questioned her, referring to the fact that she did not have a visible weapon.  She remained expressionless.  The cashier pressed the duress alarm.

2. Ms Fulton remained in the store while the cashier proceeded to serve other customers.  She neither attempted to leave nor to say anything.  The police were called in due course.  She was arrested, remanded in custody and in due course transferred to Bentley Clinic where she remained.

3. Ms Fulton was charged with making a threat to obtain a benefit but at the hearing on 19 November 2012 the charge was amended to disorderly behaviour by behaving in a threatening manner:  Criminal Code (WA) s 74A(2)(a). That offence carries a maximum fine of $6,000. Until 2005 the maximum penalty for the offence (then under the Police Act) was $2,500.

4. Ms Fulton spent three weeks in custody for the original charge and was still in Bentley Clinic when the plea was entered on her behalf.

5. The magistrate noted, 'The mental health issue was ringing out here'.

6. Her counsel advised the magistrate Ms Fulton did end up spending three weeks in custody for the original charge:

   HIS HONOUR:  I'll impose a nominal fine of, say, $500.  Anything to say about that?

   ALLEN, MS:  No, sir, that would be - - -

   HIS HONOUR:  All right, I'll impose a fine of 500, $66 in costs (ts 3).

7. Ms Fulton appeals against the fine on the grounds:

   The learned sentencing Magistrate erred in law in imposing a penalty which was disproportionate to the criminality of the Appellant's offending conduct having regard to all of the circumstances, including those referrable to the offender personally.

8. As E M Heenan J remarked in Rutter v Board [2012] WASC 488:

   The offence of disorderly behaviour can cover a very broad range of unlawful conduct ranging from the relatively minor to the more serious.  Even more so, the offence can be committed in a wide variety of circumstances by offenders with very different backgrounds, characters and personal histories.  This makes a comparison between penalties imposed in other cases of limited utility.  So in Thompson v McKay [2008] WASC 207, 270 a fine of $500 was imposed for disorderly behaviour which involved the offender abusing the manager of a hotel in an insulting and obscene manner. However, in that case, the unlawful conduct was not directed towards a police officer performing duties or in circumstances where the offender and his associates outnumbered the police officers. In the present instance, it is significant to note that the maximum penalty or disorderly behaviour was increased by the Parliament on 31 May 2005 from a fine of $2500 to $6000, so reflecting the gravity attached by the community to the more serious instances of this form of offending [24].

9. The appellant has significant mental health issues.  She had ten previous convictions for disorderly behaviour.

10. Ms Sinton for the appellant supplied a list of appeals in respect of disorderly conduct but I am unable to discern a tariff.

11. Mental illness may explain or reduce culpability and a mentally unwell offender is not a suitable case for general deterrence.  Here the magistrate was emphatically aware of that and took it into account.

12. The magistrate was given no information about the appellant's means.

13. The magistrate could reasonably expect to be assisted by counsel if the appellant lacked the means to pay a fine.

14. In the end, the case seems to turn on what is meant by 'nominal' about which minds may reasonably differ.

15. In Wungundin v Barndon [2013] WASC 28, McKechnie J imposed a 'nominal' fine of $50 for an aggravated assault, in circumstances where the appellant had spent some time in custody.

16. In KSB (A Child) v The State of Western Australia [2004] WASCA 296, the Full Court imposed 'nominal' fines of $50 for stealing in circumstances where a juvenile offender was already sentenced to detention for other matters.

17. In the present case, the magistrate imposed a fine that was 8.3% of the maximum penalty.

18. He obviously regarded that as nominal in all the circumstances.  I am not prepared to disagree.  In other words, I do not find express or implied error in the exercise of the sentencing discretion.  The appeal is dismissed.