Hume v PETTYFER
[2014] WASC 22
•29 JANUARY 2014
HUME -v- PETTYFER [2014] WASC 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 22 | |
| Case No: | SJA:1138/2013 | 22 JANUARY 2014 | |
| Coram: | HALL J | 29/01/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KARA LACEY HUME HAYDEN NOEL PETTYFER |
Catchwords: | Criminal law Appeal against sentence Serious assault s 318 Criminal Code (WA) Assault on hospital employee Whether sentence of 7 months' immediate imprisonment manifestly excessive |
Legislation: | Criminal Code (WA), s 318 |
Case References: | Hill v Bodenham [2000] WASCA 37 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Powell v The State of Western Australia [2010] WASC 54 Quinn v The State of Western Australia [2006] WASCA 99 Roncevic v The State of Western Australia [2012] WASCA 43 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
HAYDEN NOEL PETTYFER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : MH 2689 of 2013
Catchwords:
Criminal law - Appeal against sentence - Serious assault - s 318 Criminal Code (WA) - Assault on hospital employee - Whether sentence of 7 months' immediate imprisonment manifestly excessive
Legislation:
Criminal Code (WA), s 318
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms T McArthur
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hill v Bodenham [2000] WASCA 37
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Powell v The State of Western Australia [2010] WASC 54
Quinn v The State of Western Australia [2006] WASCA 99
Roncevic v The State of Western Australia [2012] WASCA 43
1 HALL J: On 29 October 2013 the appellant was sentenced in the Magistrates Court to 7 months' imprisonment for a serious assault contrary to s 318 of the Criminal Code (WA). She seeks leave to appeal against that sentence.
The facts
2 The facts were not in dispute.
3 On 1 July 2013 the appellant was taken to the Peel Health Campus in an ambulance. The Peel Health Campus is a public hospital. The appellant was taken there as she was heavily intoxicated. She later said that she had been using amphetamines for several days.
4 Whilst being attended to by nursing staff the appellant became aggressive and thrashed her arms about. As a consequence a security guard employed by the hospital was called. He attempted to restrain the appellant and she kicked out and hit him in the groin. She continued to be aggressive and non-compliant with nursing staff. The security guard then escorted her out of the hospital.
5 A short time later the appellant returned inside the hospital and went to the toilets. Nursing staff and the same security guard removed the appellant from the toilets and took her outside, seating her on a bench. Attempts were made to calm her down and ascertain what assistance she needed. As other nursing staff and patients walked past the appellant attempted to attack them. The security guard again had to restrain the appellant. She then started lashing out and punched the security guard in the face.
6 The security guard forced the appellant into a lying position on the bench whilst holding her arms in order to prevent her from further assaulting him. She then began spitting at him. He was struck by saliva on the upper body and the mouth. He rolled the appellant over on the bench to prevent being further spat on and continued to restrain her until the police arrived at the hospital.
Proceedings in the Magistrates Court
7 The appellant pleaded guilty at an early stage, on 2 August 2013. A written pre-sentence report was ordered and the matter was adjourned to 10 September 2013 for sentence. On that day the appellant appeared with her lawyer. A non-contact report had been prepared which stated that the appellant had failed to make contact with a Community Corrections Officer as arranged for the purposes of the preparation of a pre-sentence report.
8 The magistrate gave the appellant a further opportunity to cooperate with the preparation of a pre-sentence report and adjourned the proceedings to 8 October 2013. The appellant's bail was varied to include a requirement that she was to attend the Mandurah office of the Department of Corrective Services on two occasions for that purpose. It was made clear to her that if she did not comply with this condition she could be arrested and taken into custody. She said that she understood this condition.
9 On 8 October 2013 the appellant appeared in the Magistrates Court with her lawyer. She had again failed to attend appointments for the purpose of the preparation of the pre-sentence report. In these circumstances the magistrate was not prepared to extend bail and remanded the appellant in custody until 29 October 2013 for sentencing. The appellant was then interviewed in custody and a report was prepared.
Personal circumstances
10 According to the pre-sentence report the appellant claimed to have no memory of what had occurred at the hospital. She said that prior to going to the hospital she had used three points (that is 0.3 grams) of methamphetamine. She said that she was homeless at the time of the incident and had been trying to stay awake to ensure her safety whilst on the streets. She had no idea why or how she came to be at the hospital and could not remember what occurred whilst she was there. She said that all she remembered was waking up in the police lockup. She said that she was shocked and embarrassed at finding out what she had done to the victim. The report writer noted that it was apparent during the interview that the appellant's problematic methamphetamine use was the main factor in her offending.
11 The appellant was 22 at the time of sentencing. She was unemployed with one child, a four-year-old son, who was no longer in her care. She had a difficult childhood. Her father passed away when she was five years of age and her mother used alcohol excessively and was unable to care for her. An aunt became the carer for the appellant and her sister but this aunt had passed away about a year ago. The appellant had little or no family support and had not seen or spoken to her mother in approximately six years.
12 The appellant had been in one long term relationship which had commenced when she was about 14 years old. This relationship had ended prior to the offence. The relationship was characterised by drug use and domestic violence. The appellant's ex-partner had been convicted of serious and violent assaults against the appellant and their son. As a result of these assaults and the appellant's drug use her son had been taken into the care of the Department of Community Protection and Family Services prior to the commission of the offence the subject of this appeal.
13 The appellant disclosed to the author of the pre-sentence report that she commenced using drugs when she was about 14 years of age, having been introduced to them by her former partner. They used methamphetamine together on a frequent basis and this had escalated to daily use. She had also smoked cannabis on a daily basis. She said that she used cannabis to help manage anxiety and had no plans to stop, preferring it to prescription medication. The report writer noted that in order to reduce future risk of re-offending the appellant needed to address her illicit substance use and the psychological issues that led to that use.
14 When the report writer discussed sentencing options the appellant said that she did not wish to be placed on a community disposition as she wanted to focus on meeting the requirements of the Department of Community Protection in order to be reunited with her son. The report writer concluded that although there were identifiable treatment needs which may reduce the risk of re-offending, the appellant's reluctance to engage with an order and her indication that she could not keep appointments raised doubt as to whether she would comply with such a disposition.
15 The appellant did not have an extensive prior record but she did have prior convictions for breaching a police order and for obstructing public officers. The latter offence was committed on 1 June 2013 and involved resisting police who were trying to arrest her, including by kicking one of the police officers in the shins.
Sentencing remarks
16 After referring to the facts of the offence and the appellant's personal circumstances the magistrate stated:
[T]he way in which you behaved on 1 July this year at the hospital is abhorrent, it's totally unacceptable, and as the sergeant said, the community expects that those working in a hospital are protected. And despite all of the factors personal to you, Ms Hume, there has to be elements of both specific and general deterrence; specific deterrence to impress upon you that this behaviour cannot be repeated and general deterrence to impress upon others that this behaviour is totally unacceptable.
I have given consideration as to the type of penalty. As I have said, I have considered the community order and it is my view that it is unlikely that you would comply with such an order and I make that remark because you were twice required to attend for the preparation of a pre-sentence report, you failed to do so and as a result you were remanded in custody so that that report could be prepared. So you were noncompliant as regards the preparation of the report in the first place. I have decided that a term of imprisonment is warranted and that term of imprisonment is seven months.
I have given consideration as to whether or not that term of imprisonment ought to be suspended and in considering that, I have reviewed your personal circumstances. I have reviewed the fact that you are only 22 years of age, you have a young child, and inevitably immediate imprisonment will separate you from your child. However, again, I come back to the circumstances of the offence and in my view the term that I impose ought to be an immediate term. So I have determined that I will not suspend that term of imprisonment. The term, as I said that I have imposed, is seven months and that takes into account and gives you a discount for the fact that you have pleaded guilty. I would otherwise have imposed a term of nine months imprisonment. For the disorderly behaviour there is a fine of $750 and you are to pay costs of $68. Thank you, stand down and go with the officers. It's backdated, sorry, to 8 October (ts 6).
Was the sentence manifestly excessive?
17 The appellant's sole ground of appeal is that the magistrate erred by imposing a sentence for the serious assault that was manifestly excessive.
18 A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive it is necessary to view it in perspective of the maximum penalty prescribed by law for the offence, the standards of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the type and the personal circumstances of the offender. What must be demonstrated is that the sentence falls outside the range available in a sound exercise of sentencing discretion. An appellate court must have regard to the fact that the sentencing function is discretionary in nature: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336.
19 Assaults fall into a number of different categories. In this case the appellant was charged under s 318 which is headed 'Serious Assault' and deals with assaults against various categories of persons who perform public duties. Included amongst these categories are persons who are working in a hospital: s 318(1)(i)(i). The maximum penalty for such a serious assault (when not committed in circumstances of aggravation) is 7 years' imprisonment. The summary conviction penalty is 3 years' imprisonment and a fine of up to $36,000. The summary conviction penalty provides a jurisdictional limit rather than the maximum penalty for the offence.
20 The maximum penalties for serious assaults under s 318 are to be contrasted with those for common assault under s 313. The maximum penalty for a common assault, which is a simple offence, is 3 years or $36,000 where there are circumstances of aggravation and 18 months or $18,000 in any other case.
21 The higher penalty for offences against s 318 reflect the greater seriousness of assaults committed on persons performing public functions. In 2008 the categories of persons protected by s 318 were amended to include persons working in hospitals. This amendment was adopted following a recommendation from the Legislative Council Standing Committee on Legislation (Report 9, Standing Committee on Legislation, Criminal Law and Evidence Amendment Bill 2006). In that report the Committee referred to increased concern regarding assaults on public officers. The Committee stated that it considered that attacks on people who are employed in the private sector and who perform essential public or community services should be treated as seriously, and should attract the same criminal penalties, as attacks on public officers (par 2.13).
22 Hospitals provide an important public service. It is essential to the delivery of that service that those who work in hospitals should not be subject to violent attacks. Such attacks not only pose the risk of harm to hospital staff but can disrupt or prevent the delivery of medical care to the sick and injured. The importance of ensuring the safety of hospital staff makes general deterrence an important sentencing factor.
23 In this case the appellant engaged in a sustained assault upon a security guard at a hospital. The assault involved multiple acts, including a kick to a vulnerable part of the body, several punches and spitting. The acts occurred over a period of time rather than being a single or brief incident. Whilst there is no evidence of injury, acts of this nature necessarily carry the risk of injury. It is evident that the appellant's behaviour was highly disruptive and it continued until she was taken away by police.
24 The fact that the appellant's conduct was influenced by her use of drugs does little to mitigate the offence. That use was voluntary and she must be held responsible for her actions. Whilst the circumstances in which the appellant came to be at the hospital are unclear, there is no reason to think that she was unaware that she was at a hospital. In my view, the magistrate's characterisation of the offending as 'abhorrent and totally unacceptable' were entirely correct.
25 As regards the standards of sentencing for offences of this type, there are no reported cases involving sentences imposed for assaults upon hospital employees pursuant to s 318. However, cases involving assaults upon police officers under s 318 are analogous. I have had regard to Roncevic v The State of Western Australia [2012] WASCA 43, Quinn v The State of Western Australia [2006] WASCA 99 and Hill v Bodenham [2000] WASCA 37. Whilst each of those cases involve more serious assaults, they do not suggest that the sentence imposed in this case was outside the range of proper sentencing discretion.
26 In another case, Powell v The State of Western Australia [2010] WASC 54, the offender was convicted of a serious assault contrary to s 318(1)(d) where the victim was a bus driver. The offender fell asleep on the bus and the driver woke him up. The driver told the offender that he was to get off the bus at the next stop and he became verbally abusive towards her. The offender refused to get off the bus and the driver told him that she was calling security. The offender then grabbed the driver's arm and punched her with a clenched fist three times to the left side of the face. The driver received bruising to the left side of her face, bruising to her arm and a laceration to her left eye brow, which required five sutures. The offender in that case had a prior criminal history including convictions for assaults. He was sentenced in the Magistrates Court to 12 months' immediate imprisonment. On appeal Simmonds J held that the sentence was not manifestly excessive however the appeal was upheld on other grounds. The appellant in that case was resentenced to 7 months' imprisonment. However, that sentence took into account that at the time of the offence the appellant was suffering from a serious psychiatric illness. On the day of the offence the appellant had changed his medication and Simmonds J found that it was that change which contributed, together with the underlying condition itself, to the offending. In those circumstances general deterrence was said to have less significance than it might otherwise have had.
27 The personal circumstances of the appellant might well have suggested that a suspended sentence was an option. On the other hand, the appellant had failed to attend appointments for the preparation of a pre-sentence report and the indications were that a community-based disposition would not be effective. Furthermore, insofar as excessive drug use was a causative factor, it was open to question whether the appellant had yet shown a willingness to address that problem. In any event, the magistrate's conclusion was that the circumstances of the offence were too serious to justify suspension. That was a conclusion that was open given the facts.
Conclusion
28 The sentence imposed in this case was clearly open to the magistrate in the exercise of her sentencing discretion. Whilst there were some factors in favour of the appellant, such as her youth and lack of an extensive prior record, these factors were offset by the fact that there was little to indicate that the appellant had taken steps to properly address her drug problem. The use of drugs was a significant factor in the offending and continued use raised the risk of re-offending. Whilst the appellant had expressed regret and remorse, her failure to attend several appointments for the purposes of the pre-sentence report indicated a significant lack of appreciation of the seriousness of her conduct.
29 Taking all relevant factors into account I am unable to conclude that the sentence imposed in this case was manifestly excessive. The sentence imposed was properly open to the magistrate in the exercise of her sentencing discretion. In those circumstances the orders will be as follows:
(1) Leave to appeal refused.
(2) Appeal dismissed.
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