Hiemstra v The State of Western Australia
[2021] WASCA 96
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HIEMSTRA -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 96
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 19 FEBRUARY 2021
DELIVERED : 2 JUNE 2021
FILE NO/S: CACR 71 of 2020
BETWEEN: JOHN ARJEN HIEMSTRA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 298 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of aggravated armed robbery - Sentence of 6 years 4 months' imprisonment - Appellant suffers from fetal alcohol spectrum disorder - Whether the trial judge failed correctly to consider the appellant's mental impairment - Whether the trial judge failed correctly to consider the appellant's deprived background - Whether the sentence was manifestly excessive
Legislation:
Criminal Code (WA), s 392
Sentencing Act 1995 (WA), s 8(1)
Result:
Appellant's application for an extension of time to appeal granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 3 refused
Appellant's application in an appeal dated 22 December 2020 granted
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2007] WASCA 105
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Baroudi v The Queen [2007] NSWCCA 48
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Button v The Queen [2010] NSWCCA 264
Drury v The State of Western Australia [2010] WASCA 220
Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286
Fawcus v The State of Western Australia [2013] WASCA 86
Gok v The Queen [2010] WASCA 185
Hayward v The State of Western Australia [2020] WASCA 57
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
IEB v The State of Western Australia [2015] WASCA 207
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1
Mamkin v The State of Western Australia [2017] WASCA 61
Manyam v The State of Western Australia [2009] WASCA 164
Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Nicolaides v The State of Western Australia [2012] WASCA 199
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Peterson v The State of Western Australia [2019] WASCA 207
Phillips v The State of Western Australia [2011] WASCA 69
Pilling v The State of Western Australia [2014] WASCA 146
R v Bonython (1984) 38 SASR 45
R v Engert (1995) 84 A Crim R 67
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Letteri (Unreported, NSWCCA, 18 March 1992) 14
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Robertson v The State of Western Australia [2009] WASCA 83
Smith v The State of Western Australia [2010] WASCA 176
Squance v The State of Western Australia [2018] WASCA 25
Suleiman v The State of Western Australia [2017] WASCA 26
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Wells [2005] WASCA 23
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Wheeler v The Queen [No 2] [2010] WASCA 105
JUDGMENT OF THE COURT:
The appellant has applied for an extension of time within which to appeal and for leave to appeal against sentence.
The appellant and his co-accused, Kevin Michael Morrison, were charged on indictment with one count.
The count alleged, in essence, that on 27 March 2018, at Bellevue, the appellant and Mr Morrison stole from Wanda Jane Munro, with threats of violence, a sum of money the property of Bellevue Returned Services League, and that:
(a)the appellant and Mr Morrison were armed with a dangerous weapon, namely a handgun;
(b)the appellant and Mr Morrison were in company with each other; and
(c)the appellant and Mr Morrison were armed with an offensive instrument, namely a knife,
contrary to s 392 of the Criminal Code (WA) (the Code).
On 13 November 2019, after a joint trial before Fiannaca J and a jury, the appellant and Mr Morrison were convicted as charged.
The maximum penalty for the offence is life imprisonment.
On 18 March 2020, the trial judge sentenced the appellant to 6 years 4 months' imprisonment. The sentence was backdated to 5 July 2018 to take account of time the appellant had spent in custody. A parole eligibility order was made.
On 18 March 2020, his Honour also sentenced Mr Morrison to 6 years 4 months' imprisonment. The sentence was backdated to 18 December 2018 to take account of time Mr Morrison had spent in custody. A parole eligibility order was made.
The last date for the appellant to appeal against sentence was 8 April 2020. The appellant did not file his appeal notice until 21 May 2020. On 6 July 2020, Buss P ordered that the appellant's application for an extension of time be referred to the hearing of the appeal. Counsel for the State did not oppose the application. The delay in filing the appeal notice was not substantial. In the circumstances, we would grant the appellant an extension of time.
The appellant relies upon three grounds of appeal. Ground 1 alleges that the trial judge erred by failing correctly to consider the appellant's mental impairment. Ground 2 alleges that his Honour erred by failing correctly to consider the appellant's deprived background. Ground 3 alleges that the sentence imposed on the appellant was manifestly excessive. On 6 July 2020, Buss P referred the appellant's application for leave to appeal on those grounds to the hearing of the appeal.
We would grant leave to appeal on grounds 1 and 2 and refuse leave on ground 3. The appeal should be allowed. His Honour's sentencing decision, including the sentence imposed by his Honour, should be set aside and the appellant should be resentenced by this court.
The facts and circumstances of the offending
At about 9.15 pm on 27 March 2018, the offenders entered the bar area of the Bellevue Returned Services League premises where a women's darts competition was being conducted. The appellant was armed with a large carving knife. Mr Morrison was armed with a handgun. Both wore dark clothing, including hooded jumpers which concealed their faces. Mr Morrison brandished the handgun and ordered the patrons (which comprised 13 women, many of whom were retirees) to lie on the floor. The appellant forced the bar attendant to go behind the bar and ordered her to open the till. The appellant spoke to the bar attendant in a calm voice. He told her not to press the duress button. As he removed the contents of the till, the appellant pressed the knife against the bar attendant's arm, causing a graze. After removing $1,800 cash from the till and placing the cash in a carry bag, the appellant asked the bar attendant about the safe. The bar attendant told him that she did not have the keys to the safe. Mr Morrison then directed the appellant to leave the premises because Mr Morrison realised that his aunt was one of the patrons.
On 18 May 2018, the appellant participated in an electronically recorded interview with police. The appellant denied having been involved in the robbery. He provided an alibi for Mr Morrison. The appellant did not give evidence at the trial. However, he later admitted to the author of a pre-sentence report that he had been involved in the robbery. The appellant explained that he and his family were being threatened because of a drug debt he owed. The appellant asserted that he and Mr Morrison had decided to commit the offence 'in the spur of the moment', that he knew there would be cash at the premises and that he was under the influence of methylamphetamine at the time of the offending.
The trial judge's sentencing remarks and the appellant's personal circumstances and antecedents
The trial judge concluded (having regard to CCTV footage, the accounts given by people who witnessed the robbery, and recordings from telephone intercepts and listening devices of statements made by both offenders while on remand) that prior to the offending both offenders had planned their respective roles in the robbery [29]. The appellant's role included taking possession of the cash and subsequently distributing the money [29]. His Honour noted that, unlike Mr Morrison, the appellant acted in a relatively calm manner throughout the robbery [29].
His Honour found that it was an aggravating feature of the offending that the robbery was premeditated and planned [31]. His Honour rejected the appellant's assertion that the robbery had been committed 'in the spur of the moment' [31]. Further, his Honour noted that [31] ‑ [33]:
(a)Both offenders wore clothing to disguise their appearance.
(b)The offenders obtained weapons, notably the handgun, before they entered the premises.
(c)It was obvious from their conduct after entering the premises, as shown in the CCTV footage and as described by the witnesses to the offending, that the offenders had planned to perform separate roles. Mr Morrison was to control the patrons while the appellant stole the cash by forcing the bar attendant to open the till.
(d)The offenders' conduct after committing the robbery indicated an awareness of law enforcement techniques. They took steps to evade detection and colluded in arriving at a consistent version of events.
(e)The offending was unsophisticated and, in some respects, inept, but those features did not detract from the premeditated and planned nature of the offence.
The trial judge found that there were a number of additional aggravating features of the offending as follows [32] ‑ [37]:
(a)The offenders targeted the premises at a time when only women were present, many of them seniors. The offenders targeted vulnerable victims in the expectation that they would not encounter resistance.
(b)The weapons used by the offenders were calculated to cause significant fear and to ensure that the victims complied with the offenders' demands.
(c)The offenders acted in company in a manner that reinforced the threats of violence and increased the fear caused to the victims.
(d)The appellant swung the knife to reinforce the threats and to ensure that the bar attendant complied with his demands. The knife came into contact with the bar attendant's arm. This caused a graze and increased the danger to her and the fear she felt. His Honour was unable to make a finding as to whether the appellant deliberately brought the knife into contact with the bar attendant's arm. However, it was an obvious danger because the appellant was swinging the knife in her direction while standing in close proximity to her.
(e)The victims, some of whom were elderly and frail, were vulnerable. The number of victims was significant.
His Honour did not accept a submission from Mr Morrison's defence counsel that the handgun was a replica or toy gun [28]. There was no evidence as to whether the handgun was loaded [34]. However, his Honour observed that whether the handgun was loaded or not made no difference to the impact on the victims of the use of the gun [34]. His Honour also observed that, given the use of the weapons and the aggressive behaviour of the offenders, Mr Morrison's statements to the victims in the course of the robbery that he did not want to hurt them were of little consolation [34].
The information before the trial judge included victim impact statements from the bar attendant and three patrons. All of them said they had suffered ongoing trauma and anxiety.
The information before his Honour also included a pre‑sentence report dated 22 January 2020, which set out details of the appellant's personal circumstances and antecedents.
The appellant was aged 49 at the time of the offending and was 51 when sentenced. His childhood was marked by trauma and disadvantage. The appellant was born in Kalgoorlie. He has two siblings and several half siblings. His parents separated when he was aged 5. The appellant and his siblings were placed in their father's custody because their mother was unfit to care for them due to her alcoholism. The appellant told the author of the pre-sentence report that, before his parents separated, the appellant witnessed domestic violence by his father against his mother and that, after his parents separated, the appellant became the target of his father's violence. The appellant had only intermittent contact with his mother for many years. However, eventually, he reconnected with her and in early 2018 he lived with her for a short period. The appellant told the author of the pre-sentence report that his mother had sexually abused him as a child. The appellant's father died in 2008. After his father's death, the appellant became estranged from one of his sisters due to a dispute over his late father's business.
The appellant attended three different high schools and ceased his schooling part way through year 9. He struggled academically and was regularly in trouble. The appellant worked with his father in a scrap metal yard for a number of years. In 2008 the appellant established his own scrap metal yard. The business was profitable but had to be closed in 2013 when the appellant was imprisoned. Since 2013 he has been in receipt of Centrelink benefits.
The appellant began using alcohol and cannabis at the age of 13. He told the author of the pre-sentence report that the use of the substances assisted him in blocking his emotions. The appellant began using hallucinogens at the age of 14, methylamphetamine at the age of 17 and heroin at the age of 25. In 1990 his substance abuse escalated significantly after he injured his back at work. He was prescribed morphine for a long time. Between 1992 and 1994 and again between 2006 and 2013 the appellant used prescription morphine and no illicit drugs. However, in 2013, he recommenced using cannabis, methylamphetamine and heroin. He also took prescribed methadone.
The appellant has had three significant relationships. The first had a duration of 4 years and produced a son. This relationship was marred by substance abuse and ended when he was imprisoned. The second had a duration of 3 years and produced a daughter. This relationship was also marred by the appellant's substance abuse. The third had a duration of 14 years and produced a daughter. This relationship ended when the appellant was imprisoned. The appellant has had little or no contact with his children.
The appellant has a very substantial criminal history. He is a recidivist offender. The appellant's offending began at the age of 13. His criminal record occupies 23 pages. Significantly, on 4 February 2015, the appellant was sentenced for an offence of aggravated armed robbery and an offence of stealing a motor vehicle. Both of those offences were committed on 18 December 2013. The total effective sentence imposed for those offences was 3 years 6 months' immediate imprisonment with eligibility for parole. The appellant had previously been sentenced to terms of immediate imprisonment for other offences, including possessing a prohibited drug with intent to sell or supply it to another person; stealing a motor vehicle (multiple offences); fraud; reckless driving; dangerous driving; attempting to pervert the course of justice; destroying evidence; and receiving (multiple offences).
Since 1997 the appellant has been released on parole on seven occasions. His parole was cancelled six times. He completed his parole once. In 2018 the appellant was placed on a community based order. The order was cancelled in consequence of his non-compliance.
The information before his Honour also included a report dated 17 February 2020 (FASD report) from Dr James Fitzpatrick (a paediatrician), Dr Serena Cribb (a clinical neuropsychologist registrar), Ms Dianne Raby (a speech pathologist) and Dr Carmela Pestell (a clinical psychologist and clinical neuropsychologist supervisor).
The appellant was assessed by the authors of the FASD report. The authors diagnosed that the appellant suffers from Fetal Alcohol Spectrum Disorder (FASD). He also suffers from Major Depressive Disorder, Language Disorder and Substance Misuse Disorder.
The FASD report stated in relation to the appellant:
(a)Neuropsychological testing showed deficits, in the very low to extremely low range, in relation to those aspects of intelligence quotient which comprise verbal comprehension, perceptual reasoning, working memory (that is, ability to hold and manipulate information in short term memory) and speed of information processing.
(b)Simple attention fell within the extremely low range on an auditory measure and the low average range on a visuospatial measure. Selective attention (visual scanning) was extremely low. Rapid naming was low average. However, speed word reading was extremely low.
(c)The appellant had a variable memory profile. However, overall, there was a suggestion of significant impairment, particularly with retrieval of information from memory.
(d)There were variable results in relation to executive functioning (that is, higher order thinking skills such as planning and organisation). However, overall, there was no indication of severe impairment. The appellant's working memory was variable and ranged across tasks from very low to average. Number and letter sequencing were both average, while divided attention (multi-tasking) was low average. Verbal fluency (the ability rapidly to generate verbal responses fitting a set of rules) was low average for phonemic and average for semantic conditions. A verbal fluency task requiring an additional multi‑tasking component was very low with low average switching accuracy. Non-verbal fluency varied but was low average overall with average accuracy. Performance on an inhibition measure was average, while an inhibition measure with an additional multi-tasking component was low average.
(e)The appellant's basic academic skills were within the expected range. His single word reading was average, while his ability to solve mathematical problems (numerical operations) was low average.
(f)The appellant's adaptive functioning was measured in relation to communication, socialisation and daily living skills. Overall, the appellant's adaptive functioning fell within the very low range. The communication domain was a strength. Overall, he had low average abilities in this area, with receptive and expressive language abilities rated as being at adult levels. However, by contrast, his written communication abilities were a weakness and were rated as being at a 7 year 10 month old level. The appellant's abilities in relation to daily living skills were in the very low range. However, his community involvement was a strength and rated as being at a 19 year old level. His personal skills were rated as being at a 16 year 9 month old level. His domestic skills were a relative weakness and rated as being at a 9 year old level. The appellant's socialisation skills were rated as being very low overall. His interpersonal relationships were, however, a strength and of adult levels. By contrast, his coping skills were of a 7 year 9 month old level and his play and leisure skills were of a 3 year 10 month old level.
(g)Overall, the appellant had a moderate language impairment, difficulty in social interactions and very low adaptive functioning. He was likely to require support from another adult with complex aspects of self‑care, such as organising and attending appointments, managing finances and making complex decisions.
(h)The appellant had significant affect regulation difficulties.
(i)The appellant had cognitive difficulties which were likely to impact on his ability to learn.
(j)The appellant had significant attention difficulties (see par (b) above) which impede his ability to take in information. He had a mild language impairment (see par (g) above) and, at times, may struggle to understand rules and boundaries that have been explained to him. Also, he may have difficulty remembering the rules and boundaries that he has been told to follow and any instructions on what is appropriate behaviour.
(k)Many individuals with FASD are socially vulnerable and easily manipulated by their peers. Social vulnerability may result in the appellant being convinced to carry out illegal actions by others.
The FASD report also noted that, in addition to likely prenatal alcohol exposure, the appellant gave a history of early life trauma in the form of exposure to domestic violence and substance abuse before the age of 4. Trauma is known to impact on brain development, especially if it occurs within the first three years of life. The appellant's exposure to alcohol in-utero (and the subsequent FASD diagnosis) appears to be a significant contributing factor to his impairments. Prenatal alcohol exposure results in permanent changes to the central nervous system. Functional capacity impairments suffered by the appellant will impact on his ability 'to navigate and fully participate in his social and working environments'. If those difficulties are not addressed with appropriate intervention, the appellant will potentially struggle in future social, occupational and economic situations.
The FASD report made a number of recommendations as to behavioural and therapeutic support that would be of benefit for the appellant. For example:
(a)The appellant would benefit from engaging in speech therapy with a speech pathologist.
(b)A behavioural support program that focuses on educating the appellant and those closely involved in his life about his FASD disability and provides practical behavioural management support strategies was recommended.
(c)The appellant should be supported with a plan for re‑engagement in meaningful employment upon his release into the community.
(d)A medical/psychiatric review of the appellant's medication should be undertaken.
(e)The engagement of a psychologist would assist the appellant in managing and resolving his history of trauma and his current Major Depressive Disorder.
(f)The appellant should be encouraged and supported in re‑engaging with his children.
(g)The appellant may be eligible for National Disability Insurance Scheme funding and support.
The trial judge made these observations about the FASD report:
(a)The finding in the report that, overall, there was no indication of severe impairment in the appellant's executive functioning, was significant [91].
(b)There was some 'incongruity' between the findings on the formal testing referred to in the FASD report and 'what [the appellant had] demonstrated of [his] abilities in the past and from what [his Honour] could see in [the appellant's electronically recorded interview with police] and during the telephone calls [between the appellant and his former wife] that were intercepted by the police' [93].
(c)In particular, in relation to that 'incongruity':
(i)the appellant had previously been able to run a business successfully with his wife, and the appellant had been able to function 'well enough' in that setting [95];
(ii)the appellant had exhibited a degree of intelligence, at least in being able to understand the consequences of particular matters, in discussions that the appellant had with his former wife when he spoke about what Mr Morrison might have said to the police or his wife [96];
(iii)the appellant had demonstrated a capacity to remember past events in some detail when he spoke with police during the electronically recorded interview, with the authors of the FASD report and with the author of the pre‑sentence report [98];
(iv)the appellant had previously engaged in programs dealing with substance abuse and cognitive skills, and reports about those programs indicated that the appellant had engaged well and had benefitted from the programs [99];
(v)his Honour acknowledged that the appellant may not have retained everything that he had learned during the programs dealing with substance abuse and cognitive skills, but his Honour was of the view that the appellant was capable of learning from participation in programs of that kind [99]; and
(vi)his Honour concluded that there was some 'incongruity' between the test results and what is known of the appellant's history, and that the authors of the FASD report had not taken into account all of the evidence given at the trial [99].
During the sentencing hearing, his Honour raised with the appellant's defence counsel his Honour's concerns regarding the incongruities between the test results and the appellant's observable abilities. In particular, his Honour noted that a number of the comments in the FASD report regarding the impact of some of the appellant's deficits were expressed as a 'possibility' (ts 662). His Honour contrasted the report of memory deficits with the appellant's ability to recall a great deal of his past (ts 662). His Honour indicated that it was difficult to understand precisely the nature and extent of the reported memory deficits and whether deficits which appear in the context of formal testing are necessarily reflected in a person's ability actually to recall events in their history and a person's ability actually to recall things they are taught (ts 662). His Honour observed that the FASD report mentioned memory deficits in the context of the appellant's capacity to understand and engage in counselling and other support programs. However, reports from the appellant's previous participation in programs had been very positive. The reports indicated that he had engaged well and that he appeared to have gained benefits from the programs (ts 662 ‑ 663). His Honour said the fact that the appellant may relapse into offending did not necessarily mean that the appellant had not learned anything from the programs because people who have the capacity to learn still relapse into offending (ts 663). His Honour then said that if the appellant was 'a hopeless case, for instance, in terms of being able to rehabilitate through counselling or programs, then the need to protect the community becomes paramount' (ts 663).
In his sentencing remarks, the trial judge accepted that the authors of the FASD report had found that the appellant had a number of cognitive deficits which may, in some instances, affect his ability to learn and to exercise proper judgment [100]. The authors had been able to provide a 'road map' of things which could be done in the future to assist the appellant [100]. His Honour considered that this assistance would be relevant to the appellant's prospects of rehabilitation and justified making a parole eligibility order, notwithstanding the appellant's extensive criminal history [100], [135] ‑ [137].
His Honour found that the appellant was remorseful for the offending in the sense that he regretted the impact of the offending upon the victims [101]. However, the remorse was late in emerging [101]. It was necessary for the witnesses to give evidence at the trial and that was, of itself, a traumatic experience [101].
Defence counsel for the appellant submitted that the FASD report indicated that the appellant was not an appropriate vehicle for general deterrence [102]. In particular, it was argued that the deficits referred to in the FASD report indicated that the appellant was not in the same position as a person who does not have those deficits in making appropriate judgments and choices about participating in offending of the kind in question [103].
The trial judge decided that general and personal deterrence were relevant sentencing considerations.
His Honour was of the view that the deficits identified in the FASD report did not suggest that the appellant lacked the ability to make an appropriate choice as to whether to be involved in the offending [105]. Accordingly, his Honour was satisfied that, in that sense, the appellant's FASD had not contributed to his participation in the offending [105]. In those circumstances, his Honour concluded that the appellant did not fall into the 'exceptional category' of offenders who are not appropriate vehicles for general deterrence, and that 'general deterrence [was] a relevant consideration in sentencing [the appellant]' [106]. Later in his sentencing remarks, his Honour reiterated that he had 'come to the conclusion that the deficits resulting from [the appellant's FASD] could not be said to have contributed to [his] commission of this offence' [124]. His Honour then said that he had concluded that '[the appellant's] FASD deficits [did] not reduce the weight to be given to the need for general deterrence' [125].
However, the appellant's FASD was a relevant part of the appellant's personal circumstances and antecedents [107]. It was part of the disadvantages which resulted in the appellant becoming involved in drug abuse and in the commission of offences from a young age [107]. The appellant had found it difficult to get his 'life back on track' and live a prosocial life [107]. He had spent about 13 years of his life in prison [107].
The trial judge said that it was necessary, in consequence of the appellant's prior criminal record, to impose a sentence that reflected the sentencing objective of personal deterrence [109].
His Honour then made these comments in relation to personal deterrence as a sentencing consideration [110] ‑ [112]:
[It] has been suggested that [the appellant's] FASD findings are also relevant to [the] issue [of personal deterrence]. If it is the case that [the appellant's] FASD makes personal deterrence less appropriate because [the appellant does] not have the capacity to learn or retain information, that needs to be balanced against the need to protect the community against the risk that [the appellant] will engage again in the kind of offending in which [the appellant] engaged on this occasion, which can have devastating effects for the victims.
In particular because there now has been a finding of things that can be done to assist [the appellant] in the future, it is to be hoped that [the appellant] will be in a position in the future, with the appropriate assistance, to retain whatever [the appellant is] able to learn from programmes in prison.
In my view, the need for personal deterrence is a relevant consideration in [the appellant's] case as much as it is in Mr Morrison's case.
The trial judge said that the findings in the FASD report were relevant to the issue of parole because the FASD report indicated that, in the future, the appellant may be entitled to assistance from disability services. His Honour said that if that were the case, the appellant would have assistance when he returned to the community [113].
The trial judge said that he took into account the appellant's traumatic childhood as a mitigating factor [126]. His Honour then added [126]:
However, that is a matter that has always been in the background when you have been sentenced in the past. While it continues to be relevant, the weight it carries in the case of someone who continues to offend in a manner that puts the community at risk must necessarily be reduced, and is counterbalanced by the need to protect the community.
His Honour explained the relevance of the appellant's FASD diagnosis as follows [127]:
[The appellant's] FASD diagnosis is relevant, it seems to me, not as a factor that reduces the extent to which [the appellant] should be punished for this offence, but as a matter that speaks to [the appellant's] future prospects of rehabilitation. That is because the diagnosis is accompanied by recommendations about the way in which [the appellant's] rehabilitation should be approached in the future to improve [the appellant's] chances of leading a pro‑social life. The diagnosis may also result in [the appellant] receiving assistance in the future with life skills and accommodation, which should enhance [the appellant's] prospects of avoiding a relapse into drug use and offending.
Ground 1: the appellant's submissions
As we have mentioned, ground 1 asserts that the trial judge erred by failing correctly to consider the appellant's mental impairment.
The particulars of ground 1 assert that his Honour erred:
(a)by not considering that general deterrence had less significance due to the appellant's mental impairment;
(b)by considering that a lack of capacity to make an appropriate choice in relation to the commission of the offence is required for a mental impairment to result in general deterrence having a reduced significance;
(c)by considering that the appellant's circumstances were not materially different from Mr Morrison's in relation to the decision to commit the offence, notwithstanding the appellant's mental impairment;
(d)by not considering that personal deterrence had less significance due to the appellant's mental impairment; and
(e)by not raising his Honour's concerns as to the apparent incongruity between the FASD report and the appellant's personal circumstances and antecedents, and by not inviting the authors of the FASD report to consider that issue, before sentencing the appellant.
At the hearing of the appeal, counsel for the appellant expressly disavowed any reliance on the parity principle in relation to the sentence imposed on the appellant compared to the sentence imposed on Mr Morrison (appeal ts 26 ‑ 27). Counsel said that he was merely contending that the appellant should have received 'a lesser sentence' (appeal ts 26).
Counsel submitted that the appellant's 'lack of ability to retain information' was a factor which lessened the significance of personal deterrence as a sentencing factor. It was submitted that this lack of ability undermined the rationale for personal deterrence, which is premised on the assumption that punishment will operate to deter an offender from repeating similar criminal conduct in the future.
Counsel argued that, as a result of the appellant's mental impairment, personal deterrence should have been accorded less weight and that the trial judge was in error in finding that 'the need for personal deterrence is a relevant consideration in [the appellant's] case as much as it is in Mr Morrison's case' [112].
Counsel noted that his Honour observed in his sentencing remarks that there was some 'incongruity' between the findings on the formal testing referred to in the FASD report and what the appellant had demonstrated of his abilities in the past [93]. Counsel also noted that his Honour observed in his sentencing remarks that the authors of the FASD report had not taken into account all of the evidence given at the trial [99].
Counsel submitted that the trial judge was in error in taking that approach because any questions relating to a person's mental impairment involve issues beyond common knowledge and require expert opinion. In the present case, his Honour should not have 'discounted' the expert opinion in the FASD report in the absence of another or other expert opinions, especially since the authors of the FASD report had not been given an opportunity to comment on or consider his Honour's approach. It was submitted that his Honour should not have departed from the expert opinion of the authors of the FASD report without raising his Honour's observations in relation to the asserted 'incongruity' with the authors of the report, so that further expert opinion in relation to those matters could have been obtained.
Counsel reiterated in his submissions the assertions made in the particulars of ground 1 and emphasised that the appellant's mental impairment, as explained in the FASD report, lessened the extent to which the appellant was 'an appropriate vehicle for general deterrence' and lessened the weight to be given to personal deterrence .
Ground 1: the State's submissions
Counsel for the State submitted that the sentencing judge was correct in deciding that the appellant's FASD did not reduce the weight to be given to general deterrence because of the absence of a causal connection between the appellant's FASD and his offending.
Counsel also submitted that, for the reasons given by his Honour, personal deterrence and community protection were important sentencing factors.
As to the appellant's complaint about the trial judge's reference to the incongruity between the findings on the formal testing referred to in the FASD report and what the appellant had demonstrated of his abilities in the past, counsel emphasised that his Honour drew his concern about the incongruity to the attention of defence counsel. However, defence counsel did not request that further reports be sought in relation to the incongruity.
It was submitted that his Honour's approach to the appellant's FASD was not erroneous. His Honour applied the relevant legal principles. Having applied those principles, it was for his Honour to determine the weight to be given to each of the competing sentencing factors.
Ground 1: its merits
The culpability of an offender, in the context of sentencing, refers to the degree to which the offender is morally blameworthy for his or her offending conduct. Section 8(1) of the Sentencing Act 1995 (WA) refers to the culpability of an offender in explaining mitigating factors. It provides that 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'.
General deterrence, in the context of sentencing, refers to the concept of punishing the offender in a manner and to an extent that will deter other people from committing similar offences.
Personal deterrence, in the context of sentencing, refers to the concept of punishing the offender in a manner and to an extent that will deter the offender from committing similar offences in the future.
It is well established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen;[1] Thompson v The Queen;[2] Krijestorac v The State of Western Australia;[3] Wheeler v The Queen [No 2];[4] Smith v The State of Western Australia;[5] The State of Western Australia v Khasay;[6] IEB v The State of Western Australia.[7]
[1] Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442.
[2] Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385.
[3] Krijestorac v The State of Western Australia [2010] WASCA 35.
[4] Wheeler v The Queen [No 2] [2010] WASCA 105.
[5] Smith v The State of Western Australia [2010] WASCA 176.
[6] The State of Western Australia v Khasay [2014] WASCA 58.
[7] IEB v The State of Western Australia [2015] WASCA 207.
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins;[8] Wheeler [No 2] [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72]; Phillips v The State of Western Australia.[9]
[8] R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25].
[9] Phillips v The State of Western Australia [2011] WASCA 69 [48].
In R v Henry,[10] Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
See also R vWright;[11] Minehan v The Queen.[12]
[10] R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 [254].
[11] R vWright (1997) 93 A Crim R 48, 50 ‑ 51.
[12] Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62].
In Gok v The Queen,[13] Mazza J (with whom McLure P and Buss JA agreed) explained that a mental impairment (that has not been self‑induced) and which has a causal relationship to the offence can impact upon considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender. His Honour said [59] ‑ [61]:
The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely. These propositions are evident from F v The State of Western Australia [39], Champion v The Queen (1992) 64 A Crim R 244, 254 ‑ 255 (Kirby P), and Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190, 200 (Murray J).
The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions: R v Wright (1997) 93 A Crim R 48, 51 (Hunt CJ).
With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases, as the Court recognised in R v Tsiaris [[1996] 1 VR 398], personal deterrence has little point whereas in other cases it would be more significant.
See also Squance v The State of Western Australia.[14]
[13] Gok v The Queen [2010] WASCA 185.
[14] Squance v The State of Western Australia [2018] WASCA 25 [40].
In Muldrock v The Queen,[15] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ accepted that general deterrence should often be given very little weight in sentencing an offender who suffers from a mental disorder or abnormality because such an offender is not an appropriate vehicle for making an example to others. Their Honours added [54]:
A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence (see R v Engert (1995) 84 A Crim R 67 at 71). Such a question is less likely to arise in sentencing a mentally retarded offender because the capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
[15] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [53].
In Leach v The Queen,[16] Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. His Honour referred to the observation of Gleeson CJ in R v Engert[17] that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public'. See also Wheeler [No 2] [7], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance.
[16] Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1 [12].
[17] R v Engert (1995) 84 A Crim R 67, 71.
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri,[18] adopted and emphasised by Gleeson CJ in Engert (71).
[18] R v Letteri (Unreported, NSWCCA, 18 March 1992) 14.
In LCM v The State of Western Australia,[19] the appellant, who was aged 15 years 10 months, violently assaulted his newborn son, L, in a room at the Bunbury Regional Hospital. L died 9 days later from head injuries he received during the assault. The appellant had a severely deprived and dysfunctional childhood. Since the age of 6, he had spent a substantial period in State care. The appellant was a ward of the State when he killed L. The appellant was convicted on his plea of guilty of manslaughter. The primary judge imposed a sentence of 10 years' detention and ordered that the appellant be eligible for supervised release after serving half of that term. The appellant appealed against sentence. The appellant was granted leave to adduce additional evidence in the appeal, namely reports from medical experts which revealed that the appellant suffered from FASD. The fact that the appellant suffered from FASD was unknown when the primary judge sentenced the appellant.
[19] LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.
In LCM, Mazza JA and Beech J referred to one of the expert reports (the TKI report), relevantly, as follows [91]:
The appellant was assessed as being impaired (that is negative two standard deviations away from the mean) in cognition, executive function, language, academic functioning and motor skills. As to memory and learning, the overall assessment was that the appellant's memory for verbal and visual information was borderline impaired. With respect to adaptive functioning, social communication and social skills, the authors of the TKI report made no specific comment, except to observe that no concerns were raised by officers at Banksia Hill Detention Centre regarding the appellant's social communication and social skills. As to academic functioning, the assessment revealed that the appellant has moderate to severe difficulties with sequencing and telling a story that is understandable to a listener.
Their Honours referred to a passage from the expert report of Dr Mutch, as follows [103]:
Dr Mutch expressed the view that the appellant's 'limitations of function, his lived trauma and outstanding health needs had a direct effect on [his] [overall] function, contribute to how and why he is and why he behaved in the manner he did, and are a component of his offending' (report, page 11). In her opinion, the appellant does not have the cognition nor the executive function to reason logically and in priority order. Further, he does not have the language to express his thoughts or his reasoning and is unable to address complex ideas with reasoned thoughts.
Mazza JA and Beech J made these observations about the nature of FASD [123]:
By its nature, and as its name indicates, FASD involves a spectrum of disorders. The particular disorder of an individual with FASD may be severe, it may be minor. FASD may lead to a varying number of deficits of varying intensity. Thus blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence.
Mazza JA and Beech J concluded that when the primary judge sentenced the appellant it was unknown that 'prenatally he had suffered permanent brain damage which left him with significant and lifelong deficits, most relevantly in his cognitive, linguistic and executive functioning' [125]. Their Honours accepted that the appellant's FASD contributed to why he behaved as he did towards his infant son. Their Honours were satisfied that 'the appellant's FASD was a significant cause (but not the sole cause) of his offending behaviour' [127]. Accordingly, the appellant's FASD impacted on a number of areas in the sentencing process. For example, it diminished his moral culpability for the offence and it moderated the weight to be given to personal and general deterrence [128]. The appellant's offending was 'impulsive and unexpected' [129]. The appellant's irrational behaviour was 'in part a reflection of the impairments which the appellant has and which are attributable to FASD' [129].
In the event, this court allowed the appellant's appeal in LCM. A sentence of 7 years' detention, with eligibility for supervised release after serving one half of that term, was substituted.
At common law, expert or opinion evidence is admissible in criminal proceedings if:
(a)the evidence is with respect to matters that are relevant to a fact or facts in issue; and
(b)the tribunal of fact would be unable to form a sound judgment about those matters without the assistance of a person or persons possessing special knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.
See Clark v Ryan;[20] R v Bonython;[21] Murphy v The Queen;[22] Farrell v The Queen;[23] Osland v The Queen;[24] HG v The Queen.[25]
[20] Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491.
[21] R v Bonython (1984) 38 SASR 45, 46 ‑ 47.
[22] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 111,130.
[23] Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286, 292 ‑ 294.
[24] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 336.
[25] HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [58].
A sentencing judge must conduct sentencing proceedings in accordance with the rules of procedural fairness. See Pantorno v The Queen;[26] Parker v Director of Public Prosecutions;[27] Baroudi v The Queen;[28] Teakle v The State of Western Australia;[29] Button v The Queen;[30] Suleiman v The State of Western Australia.[31]
[26] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 472 ‑ 473, 482 ‑ 483.
[27] Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 293 ‑ 296.
[28] Baroudi v The Queen [2007] NSWCCA 48 [29] ‑ [33].
[29] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [45], [65].
[30] Button v The Queen [2010] NSWCCA 264 [14] ‑ [18].
[31] Suleiman v The State of Western Australia [2017] WASCA 26 [37].
The rules of procedural fairness are concerned with processes rather than outcomes. They are therefore rules which govern what a court must do in the course of deciding how a power should be exercised. That is, the rules of procedural fairness apply to the processes by which a decision pursuant to the exercise of power will be made. See Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[32]
[32] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [16].
Fairness is essentially a practical concept. It is not abstract in nature. The rules of procedural fairness are concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam.[33]
[33] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].
In the present case, the trial judge referred to the FASD report and noted its contents.
His Honour commented that the findings made in the FASD report did not suggest that the appellant lacked the ability to make an appropriate choice as to whether to become involved in the commission of the offence [105]. His Honour was satisfied that, in that sense, the appellant's FASD had not contributed to the offending in question [105]. Later in his sentencing remarks, his Honour reiterated that he had concluded that the deficits resulting from the appellant's FASD did not contribute to his commission of the offence [124].
The trial judge's comment that the findings made in the FASD report did not suggest that the appellant lacked the ability to make an appropriate choice as to whether to become involved in the commission of the offence was correct. The FASD report did not contain a finding or a suggestion to that effect.
The observation in the FASD report that the appellant may have difficulty remembering the rules and boundaries that he has been told to follow and any instructions on what is appropriate behaviour does not constitute a finding or a suggestion that the appellant did not fully understand that committing an armed robbery was a serious criminal offence or that he should not participate in an armed robbery. Similarly, the observation in the FASD report that social vulnerability may result in the appellant being manipulated or convinced to carry out illegal actions by others was a general observation of a circumstance that may occur in relation to the appellant. However, there was no finding or suggestion by the authors of the FASD report that the appellant was manipulated or convinced by Mr Morrison or others to participate in the armed robbery.
The trial judge found, in effect, that the appellant had not established, on the balance of probabilities, that there was a causal connection between his FASD and his commission of the offence.
The appellant does not challenge that finding in his grounds of appeal.
His Honour found that:
(a)the appellant had previously been able to run a business successfully with his wife [95];
(b)the appellant had been able to function 'well enough' in that setting [95];
(c)the appellant had shown a degree of intelligence, at least in being able to understand the consequences of particular matters, in discussions that the appellant had with his former wife when he spoke about what Mr Morrison might have said to the police or his wife [96];
(d)the appellant had demonstrated a capacity to remember past events in some detail when he spoke with police during the electronically recorded interview, with the authors of the FASD report and with the author of the pre-sentence report [98];
(e)the appellant had previously engaged in programs dealing with substance abuse and cognitive skills, and reports about those programs indicated that the appellant had engaged well and had benefited from the programs [99]; and
(f)the appellant was capable of learning from participation in programs of that kind [99].
The appellant informed the author of the pre‑sentence report that when he committed the offence:
(a)the appellant and his family were being threatened in respect of a drug debt which he owed; and
(b)the appellant was under the influence of methylamphetamine.
The appellant also informed the author of the pre‑sentence report that the majority of his prior offending was attributable to his use of illicit substances.
Accordingly, the appellant's ongoing abuse of prohibited drugs was a significant factor in his decision to participate in the offence in question.
As Mazza JA and Beech J noted in LCM:
(a)FASD involves a spectrum of disorders;
(b)an individual's particular FASD disorder may be severe or it may be minor;
(c)FASD may result in a varying number of deficits of varying intensity;
(d)general propositions about how a FASD diagnosis bears upon the sentencing process must be avoided; and
(e)each particular case depends upon details of the particular FASD diagnosis, including the nature and extent of the particular offender's disabilities and deficits, and how those disabilities and deficits relate to the commission of the offence and relevant sentencing considerations.
In the present case, we are of the opinion that his Honour was not in error in referring to or acting upon what his Honour asserted was an 'incongruity' between the findings on the formal testing referred to in the FASD report, on the one hand, and other evidence (including what was known of the appellant's history and his observable abilities), on the other. Our reasons for that opinion are as follows.
First, the trial judge was entitled to have regard to relevant information, including:
(a)the nature of the offence committed by the appellant and his role in carrying out the offending;
(b)the appellant's electronically recorded interview with police;
(c)the telephone calls between the appellant and his former wife that were intercepted by the police;
(d)the appellant's previous participation in support programs; and
(e)the reports concerning the appellant's previous participation in those programs,
in determining whether and, if so, to what extent the appellant's mental impairment affected his capacity to appreciate the wrongfulness of his actions in committing the armed robbery, or to restrain himself from participating in the offending, or to be deterred from reoffending.
Secondly, it is true that the carrying out of the formal testing referred to in the FASD report, the interpretation of the testing results and the findings to be made on the basis of that testing and those results required special knowledge or experience derived from professional qualifications and training. However, the determination which his Honour was required to make was capable of being informed by other evidence, including what was known of the appellant's history and his observable abilities. His Honour was entitled to evaluate the appellant's history and his observable abilities together with all other relevant evidence, including the FASD report, in determining whether and, if so, to what extent the appellant's mental impairment affected his capacity to appreciate the wrongfulness of his actions in committing the armed robbery, or to restrain himself from participating in the offending, or to be deterred from reoffending. That determination was a matter for his Honour based on the information (both expert and non-expert in character) which was probative of the matters in issue.
Thirdly, the trial judge was entitled to form the view, on the information before him, that there was an 'incongruity' between the findings on the formal testing referred to in the FASD report, on the one hand, and other evidence (including what was known of the appellant's history and his observable abilities), on the other. His Honour was required to resolve that 'incongruity' having regard to all relevant expert and non-expert evidence before him.
Fourthly, his Honour was not obliged to seek a further report from the authors of the FASD report about the 'incongruity' he had identified. The determination of whether and, if so, to what extent the appellant's mental impairment affected his capacity to appreciate the wrongfulness of his actions in committing the armed robbery, or to restrain himself from participating in the offending, or to be deterred from reoffending was not to be resolved solely on the basis of the views of the authors of the FASD report. During the sentencing hearing his Honour raised with defence counsel for the appellant the 'incongruity' which his Honour had identified. Defence counsel was a competent and experienced criminal defence lawyer. The appellant bore the onus of establishing the nature and extent of any mitigation flowing from the appellant's FASD. Defence counsel did not request his Honour to adjourn the sentencing hearing so that a further report from the authors of the FASD report could be obtained or other expert evidence procured. There was no denial of procedural fairness.
The trial judge found that (contrary to the submission by defence counsel for the appellant) the appellant did not fall into the 'exceptional category' of offenders who are not appropriate vehicles for general deterrence [106]. His Honour therefore held that general deterrence was 'a relevant consideration' in sentencing the appellant [106]. As noted in Gok [59], '[i]t is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant'. His Honour concluded that the findings made in the FASD report did not suggest that the appellant lacked the ability to make an appropriate choice as to whether to involve himself in the commission of the offence. The appellant's FASD deficits did not contribute to his decision to participate in the offending. By contrast, the appellant's ongoing abuse of prohibited drugs (including his being under the influence of methylamphetamine on the night in question) was a significant factor in his decision to participate in the armed robbery. His Honour concluded in effect that, having regard to his findings which we have set out at [77], [80] and [82] above, the appellant's FASD deficits did not reduce the weight to be given to general deterrence.
In our opinion, his Honour was entitled, having regard to the findings of fact he made and was entitled to make (see [77], [80] and [82] above) and having regard to the fact that the appellant's ongoing abuse of prohibited drugs (including his being under the influence of methylamphetamine on the night in question) was a significant factor in his decision to participate in the armed robbery, to decide that:
(a)the appellant did not fall into the 'exceptional category' of offenders who are not appropriate vehicles for general deterrence; and
(b)the appellant's FASD deficits did not reduce the weight to be given to general deterrence.
The trial judge said that personal deterrence was an important consideration in the sentencing of Mr Morrison. Mr Morrison was aged 42 at the time of sentencing. He had a history of abusing substances, including alcohol and heroin. Mr Morrison had a long and substantial prior criminal record. He had previous convictions for many kinds of offences including home burglary; assault occasioning bodily harm; attempted robbery; and offences of dishonesty. Mr Morrison had served numerous terms of imprisonment. On some occasions, he had completed parole successfully. On other occasions he had not. Mr Morrison had a large number of treatment needs, particularly in relation to his substance abuse problem.
His Honour found that the need for personal deterrence in the appellant's case was as relevant a consideration as the need for personal deterrence in Mr Morrison's case.
In our opinion, that finding by his Honour in relation to personal deterrence was justified having regard to the following:
(a)the appellant was not youthful or inexperienced for sentencing purposes;
(b)the appellant had a very substantial criminal history, including a conviction for the offence of aggravated armed robbery which he committed on 18 December 2013;
(c)the appellant had performed poorly when released previously on parole;
(d)the armed robbery the appellant committed with Mr Morrison was very serious;
(e)there was a real risk of the appellant reoffending in a similar manner;
(f)the findings of fact his Honour made and was entitled to make in relation to the appellant's FASD (see [77], [80] and [82] above) indicated that the appellant had the intellectual capacity to be deterred from committing a further offence or offences by the prospect of being punished if he reoffended and his reoffending was detected; and
(g)the appellant's ongoing abuse of prohibited drugs (including his being under the influence of methylamphetamine on the night in question) was a significant factor in his decision to participate in the armed robbery.
It is apparent, in the context of all relevant sentencing considerations including general and personal deterrence, that at all material times the appellant appreciated the gravity of his actions in planning for and committing the armed robbery with Mr Morrison.
In any event, his Honour found (and was entitled to find) that even if the appellant's FASD made personal deterrence less appropriate because he did not have the capacity to learn or retain information, any reduction in the significance of personal deterrence as a sentencing factor was counterbalanced by the need to protect the community against the risk that the appellant would commit further offences of this kind upon his release from custody.
Ground 1 fails.
Ground 2: the appellant's submissions
As we have mentioned, ground 2 asserts that the trial judge erred by failing correctly to consider the appellant's deprived background.
Counsel for the appellant noted:
(a)His Honour's statement that he took into account the appellant's childhood as a mitigating factor [126].
(b)His Honour's qualification that the appellant's traumatic childhood had always been 'in the background' when the appellant had been sentenced previously and that while the appellant's traumatic childhood 'continues to be relevant, the weight it carries in the case of someone who continues to offend in a manner that puts the community at risk must necessarily be reduced, and is counterbalanced by the need to protect the community' [126].
Counsel submitted that the trial judge's approach to the issue of the appellant's traumatic childhood as a mitigating factor was contrary to the statement by the High Court in Bugmy v The Queen[34] that '[b]ecause the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak to giving ''full weight'' to an offender's deprived background in every sentencing decision'.
[34] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
Counsel argued that:
(a)although his Honour referred to community protection as a 'counterbalancing factor', his Honour did not indicate how the appellant's deprived background was relevant to the issue of community protection (in contrast with the High Court in Bugmy which identified how an offender exposed to extreme violence as a child may be unable to control a violent response to frustration);
(b)the FASD suffered by the appellant was one aspect of his deprived background;
(c)his Honour should have concluded that the need for community protection was reduced because it had been identified that the appellant was suffering from FASD and his Honour had concluded that the diagnosis of FASD was a positive factor in connection with the appellant's rehabilitation because of the support he would be able to access in the future; and
(d)it could not be said that the appellant's deprived background had 'a net zero mitigatory impact' in connection with his sentencing when all of the purposes of sentencing were taken into account.
Ground 2: the State's submissions
Counsel for the State submitted that the trial judge's approach to the appellant's childhood deprivation was not erroneous.
It was submitted that his Honour had regard to the appellant's childhood deprivation and gave that sentencing factor 'full weight'. However, his Honour concluded, correctly, that the need for community protection was a counterbalancing consideration. Counsel submitted, in substance, that the impugned passage, set out at [41] above, should properly be understood as stating a composite proposition to the effect outlined at [109] below.
Ground 2: its merits
In Peterson v The State of Western Australia,[35] Buss P and Mazza JA summarised the principles embodied in Bugmy, relevantly, as follows:
[35] Peterson v The State of Western Australia [2019] WASCA 207 [52] ‑ [55].
In Munda v The State of Western Australia ([2013] HCA 38; (2013) 249 CLR 600), French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:
The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.
In Veen v The Queen [No 2] ([1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477), Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.
The principles enunciated by the High Court in Bugmy, in the passage quoted at [47] above, are, relevantly, as follows:
(a)The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.
(b)The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.
(c)However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.
(d)Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.
In our opinion, the principles enunciated by the High Court in Bugmy do not apply solely to an offender whose upbringing has resulted in the offender suffering from alcohol addiction and mental illness. The principles are of broader application. They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform.
In the present case, the trial judge said [126]:
I take into account [the appellant's] traumatic childhood. However, that is a matter that has always been in the background when [the appellant has] been sentenced in the past. While it continues to be relevant, the weight it carries in the case of someone who continues to offend in a manner that puts the community at risk must necessarily be reduced, and is counterbalanced by the need to protect the community.
A crucial issue, for the purposes of ground 2, is the proper interpretation of what his Honour said in that passage.
On the one hand, the trial judge may have been expressing an overall view by stating, in effect, that although he gave the appellant's traumatic childhood 'full weight', when the conflicting purposes of punishment arising from:
(a)the appellant's diminished culpability for the offending; and
(b)personal deterrence and community protection,
were weighed in the balance, the overall mitigatory impact of the appellant's diminished culpability for the offending, having regard to his traumatic childhood, was reduced because of the overall importance of personal deterrence and community protection, having regard to the nature and seriousness of the offending in question combined with the appellant's previous offending. As we have noted, the State argues that what his Honour said should be understood in this manner.
On the other hand, his Honour may have been expressing the view that 'full weight' could not be given to the mitigation arising from the appellant's traumatic childhood because of the nature and seriousness of the offending in question and the appellant's previous offending. His Honour appears to be making two points in this passage. First, the mitigation arising from the appellant's traumatic childhood had to be reduced because of the nature and seriousness of the offending in question combined with the appellant's previous offending. Secondly, the mitigating weight which attached to the appellant's traumatic childhood was counterbalanced by the need for community protection.
In our opinion, the trial judge did not give 'full weight' to the mitigation arising from the appellant's traumatic childhood in exercising the sentencing discretion, as required by the High Court in Bugmy. Our reasons for that opinion are as follows.
First, on balance, the explanation we have set out at [110] above is the proper interpretation of what his Honour said in the passage we have reproduced at [107] above. That interpretation better reflects both his Honour's language in the last sentence of the passage and the overall sense of the passage as a whole. The first point made by his Honour, as summarised at [110] above, mirrors substantially the statement which the High Court in Bugmy held was erroneous and is inconsistent with the requirement to give full weight to the appellant's traumatic childhood.
Secondly, his Honour said at [127] of his sentencing remarks that the appellant's FASD was not 'a factor that reduces the extent to which [the appellant] should be punished for this offence' but, rather, the diagnosis 'speaks to [the appellant's] future prospects of rehabilitation'. As we have mentioned, s 8(1) of the Sentencing Act states that 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'. It is apparent from his Honour's remarks at [127] of his sentencing remarks that his Honour decided that the appellant's FASD diagnosis was not a mitigating factor within s 8(1).
Thirdly, it is true that his Honour accepted at [107] of his sentencing remarks that the appellant's 'FASD diagnosis [was] relevant' as 'part of [the appellant's] background, as part of the disadvantages that resulted in [the appellant] becoming involved in the use of drugs and committing offences from a young age'. However, it is apparent from [135] of his sentencing remarks that his Honour regarded the FASD diagnosis as relevant only to whether a parole eligibility order should be made. His Honour noted that 'the State has indicated that, but for the findings in the FASD report, it would have submitted that [the appellant] ought not to be given eligibility for parole' [135]. His Honour said he considered 'there would have been merit in that submission' [135]. However, in the circumstances, including the findings in the FASD report, his Honour decided that the appellant 'should be given the opportunity to be released at the appropriate time to be able to serve part of [the appellant's] sentence in the community, under supervision, and to continue with [his] rehabilitation in that way' [135].
Fourthly, as we have mentioned, his Honour held that the appellant's FASD deficits did not reduce the weight to be given to general deterrence and personal deterrence.
Fifthly, there is a distinction between an offender's culpability for offending, on the one hand, and general and personal deterrence and community protection, on the other, as sentencing factors. See [55] ‑ [57] above.
Sixthly, his Honour decided to impose the same sentence (namely, 6 years 4 months' imprisonment) on both the appellant and Mr Morrison because:
(a)'in terms of the level of [their] culpability, judged from an objective assessment of the offending', there was 'no practical distinction to be made between [them]' [123]; and
(b)'[a]s for personal factors … [the appellant's] circumstances are not materially different from those of Mr Morrison, in terms of [their] ability to make a choice whether to commit the offence' [124],
despite Mr Morrison not suffering from FASD and despite his Honour acknowledging that the appellant's background 'contains disadvantages that are not present in Mr Morrison's background' [128].
The mitigation arising from the appellant's traumatic childhood, which the trial judge was required by the High Court in Bugmy to give 'full weight', included the appellant's FASD deficits in that those deficits decreased his moral blameworthiness for the offending.
Ground 2 has been made out.
In our opinion, his Honour's error in relation to the application of the High Court's decision in Bugmy was 'material' in that the error was capable of affecting the actual sentence imposed by his Honour. It is therefore the duty of this court to exercise the sentencing discretion afresh. See Kentwell v The Queen.[36] As we will explain, we consider that a different and lower sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
[36] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42].
Ground 3: the appellant's submissions
As we have mentioned, ground 3 asserts that the sentence imposed on the appellant was manifestly excessive.
Counsel for the appellant submitted that, having regard to the appellant's FASD and his deprived background, the sentence of 6 years 4 months' imprisonment was manifestly excessive. The sentence imposed was longer than required to serve all relevant sentencing objectives.
Ground 3: the State's submissions
Counsel for the State submitted that the trial judge was correct in regarding the respondent's offence as a serious example of the offence of aggravated armed robbery.
It was submitted that the sentencing pattern in reasonably comparable cases does not establish that the sentence imposed on the appellant was manifestly excessive.
Counsel emphasised that the appellant did not have the mitigatory benefit of a plea of guilty or of youth. The offending involved a number of victims. They were especially vulnerable and the impact of the offending upon the victims was significant.
Counsel contended that the appellant's personal circumstances were taken into account by his Honour. However, the importance of personal and general deterrence and community protection meant that factors personal to the appellant warranted less weight.
Ground 3: its merits
It is unnecessary and inappropriate, in view of our opinion in relation to ground 2, to consider the merits of ground 3.
The outcome of the appeal and the resentencing of the appellant
We would grant leave to appeal on grounds 1 and 2 and refuse leave on ground 3. The appeal should be allowed.
The trial judge's sentencing decision, including the sentence imposed by his Honour, should be set aside.
This court has the material necessary to resentence the appellant.
By an application in an appeal dated 22 December 2020, the appellant applied for leave to adduce additional evidence in the appeal for the purposes of resentencing by this court. On 24 December 2020, Buss P referred the appellant's application to the hearing of the appeal. The additional evidence comprises letters dated 6 October 2020 and 27 November 2020 from the National Disability Insurance Agency to the appellant. The letter dated 6 October 2020 informed the appellant that the agency had approved the appellant's request to access the National Disability Insurance Scheme. The letter dated 27 November 2020 enclosed a copy of the appellant's approved National Disability Insurance Scheme plan. The plan started on 27 November 2020 and will be reviewed on 27 November 2021. We would grant the appellant leave to adduce the additional evidence in the appeal.
As we have mentioned, the maximum penalty for the offence of aggravated armed robbery committed by the appellant is life imprisonment.
We have considered a number of previous appeals against sentence, decided by this court or its predecessor, which involve the offence of armed robbery. Those cases include The State of Western Australia v Wells;[37] Abbott v The State of Western Australia;[38] Robertson v The State of Western Australia;[39] Manyam v The State of Western Australia;[40] Drury v The State of Western Australia;[41] Nicolaides v The State of Western Australia;[42] Fawcus v The State of Western Australia;[43] Pilling v The State of Western Australia;[44] Mamkin v The State of Western Australia;[45] Hayward v The State of Western Australia.[46]
[37] The State of Western Australia v Wells [2005] WASCA 23.
[38] Abbott v The State of Western Australia [2007] WASCA 105.
[39] Robertson v The State of Western Australia [2009] WASCA 83.
[40] Manyam v The State of Western Australia [2009] WASCA 164.
[41] Drury v The State of Western Australia [2010] WASCA 220.
[42] Nicolaides v The State of Western Australia [2012] WASCA 199.
[43] Fawcus v The State of Western Australia [2013] WASCA 86.
[44] Pilling v The State of Western Australia [2014] WASCA 146.
[45] Mamkin v The State of Western Australia [2017] WASCA 61.
[46] Hayward v The State of Western Australia [2020] WASCA 57.
It is apparent from the case law that where an offender is convicted after trial of a single count of armed robbery, contrary to s 392 of the Code, a sentence of 5 to 6 years' imprisonment (before having regard to any aggravating or mitigating factors) is not unusual. However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders, in the context of the offence of armed robbery, vary widely. Sentences significantly beyond the range we have mentioned may, having regard to the maximum penalty and the relevant facts and circumstances (including any aggravating and mitigating factors), be appropriate in particular cases.
After taking into account:
(a)the maximum penalty for the offence of aggravated armed robbery;
(b)the facts and circumstances of the offence;
(c)the seriousness of the offending (including the vulnerability of the victims);
(d)the general pattern of sentencing for offences of this kind;
(e)the appellant's traumatic childhood, including his FASD deficits, in that those matters decrease the appellant's moral blameworthiness for the offending;
(f)the appellant's late expression of remorse;
(g)the appellant's personal circumstances and antecedents;
(h)the importance of general and personal deterrence and community protection;
(i)the sentence imposed on Mr Morrison, having regard to the parity principle; and
(j)all other relevant sentencing considerations,
we would resentence the appellant to 5 years 10 months' imprisonment.
We have reduced the new sentence we would otherwise have imposed in the recognition of the mitigating factors.
The new sentence is to be taken to have taken effect on 5 July 2018.
The appellant remains eligible for parole. He will be eligible to be considered for release on parole upon having served 3 years 10 months in custody calculated from 5 July 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
2 JUNE 2021
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